Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time: (a) by mutual written consent of NBC and Xenon 2; (b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date; (c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling; (d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained; (e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby; (f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so; (g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or (h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party. (i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 4 contracts
Sources: Merger Agreement (General Electric Co), Agreement and Plan of Contribution, Investment and Merger (General Electric Co), Merger Agreement (Xoom Inc)
Termination Events. Without prejudice to other remedies which Except upon expiration of the term of an SLA or as otherwise provided in this MLA, as applicable, a Party may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeonly terminate an SLA as follows:
(ai) by mutual written consent If an SLA has been executed prior to issuance of NBC a Notice to Proceed, and Xenon 2LICENSOR does not approve the installation of the proposed equipment and improvements, LICENSEE may terminate the SLA without penalty or further liability;
(bii) by either NBC LICENSEE may terminate an SLA without penalty or Xenon 2 by further liability, immediately upon written notice to the other parties LICENSOR that; (w) any applications for Governmental Approvals have been, or are likely to be, rejected or are unacceptable, (x) LICENSEE has determined in its sole discretion that one or more Governmental Approvals may not be obtained in a timely manner, or (y) a Governmental Approval issued to LICENSEE has been canceled, has expired, has lapsed or is otherwise withdrawn or terminated by a governmental authority, provided, however, with respect to any Committed Site, if the transactions contemplated by this Agreement have not been consummated by December 31a Governmental Approval or application for a Governmental Approval expired or is delayed, 1999denied, unless extended by written agreement canceled or rejected primarily as a result of the parties heretonegligence, provided that fault, action or inaction of LICENSEE (or its agents, contractors or employees), then LICENSEE shall pay LICENSOR an amount equal to the party terminating this Agreement shall not be in material -------- default or breach hereunder total License Fees owed between the date of termination of such SLA and the end of the then-current term, and provided, further, that the right LICENSEE will not be required to terminate --------- ------- this Agreement pay LICENSOR a termination fee under this clause (bSection 20(a)(ii) shall for any Committed Site if a Governmental Approval for such Committed Site is lost, canceled or withdrawn as a result of LICENSEE not be available agreeing, in its sole reasonable discretion, to any party whose failure to fulfill any obligation under this Agreement has been unreasonable conditions imposed by a governmental authority after the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateEffective Date;
(ciii) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval In accordance with Section 17 of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction this MLA in the United States shall have issued a final and unappealable permanent injunction, order, judgment event of damage or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingdestruction;
(div) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation In accordance with Section 18 of this Agreement, MLA in the Xenon 2 Merger Agreement or any event of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawcondemnation; or
(hv) In accordance with Section 22 of this MLA for default by either NBC LICENSEE or Xenon 2 in LICENSOR; or
(vi) LICENSEE may terminate any SLA for convenience after the event there has been a material default or breach expiration of its Initial SLA Term by providing LICENSOR at least one hundred eighty (x180) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after days’ prior written notice of such breach is given by and paying a termination fee equal to twelve (12) months’ License Fee at the non-breaching partythen current rate; provided, however, that this termination right will not apply to Committed Sites during their initial fifteen (15) year term from the Effective Date.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 4 contracts
Sources: Master License Agreement (Telephone & Data Systems Inc /De/), Master License Agreement (Array Digital Infrastructure, Inc.), Securities Purchase Agreement (Telephone & Data Systems Inc /De/)
Termination Events. Without prejudice to other remedies which that may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) mutually, by mutual the written consent of NBC the Company and Xenon 2a Majority in Interest of the Investors;
(b) by either NBC the Company or Xenon 2 a Majority in Interest of the Investors by giving written notice to the other party or parties if the transactions contemplated by this Agreement Closing shall not have not been consummated by December occurred prior to August 31, 19992003, unless extended by written agreement of the parties heretosuch parties; provided, provided however, that the party terminating seeking termination pursuant to this Agreement shall subsection (b) is not be in material -------- default or material breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause subsection (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such date;
(c) by either NBC the Company or Xenon 2 a Majority in Interest of the Investors by giving written notice to the other party or parties if (i) any Governmental Authority, the consent governmental entity shall have issued an injunction or approval of which is required for other ruling prohibiting the consummation of any of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of by this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) such injunction or other ruling shall not be available subject to any party who appeal or shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingbecome final and unappealable;
(d) by either NBC the Company or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, Majority in Interest of the Xoom Investors in the event that the Required Stockholder Approval shall is not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedStockholders' Meeting;
(e) by NBC either the Company or a Majority in Interest of the Investors, if (i) the Company shall have entered into an agreement to consummate a Superior Proposal, (ii) the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn recommended to the stockholders of the Company a Superior Proposal or (iii) the Board of Directors shall have withdrawn, modified or qualified in a any manner adverse to NBC its approval the Investors or recommendation made any public statement inconsistent with the Company Recommendation; provided, however, that, in order for the termination of this AgreementAgreement by the Company pursuant to this clause (e) to be deemed effective, the Xenon 2 Merger Agreement or any Company shall have complied with all provisions of the transactions contemplated hereby or therebySections 8.7 and 8.8;
(f) by NBC a Majority in Interest of the Investors, if (i) the Board of Directors of Xoom Company shall have accepted materially breached any covenant or recommended obligation in this Agreement and such breach is not cured within ten (10) business days of the date of the delivery to the Company by an Investor of a Takeover Proposal written notice of such breach or (ii) any of the Company's representations and warranties contained in this Agreement shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 5.1 would not be satisfied as of such date and such breach is not cured within thirty (30) days of the date of the delivery to the Company by an Investor of a written notice of such breach; or
(g) by Xoom a Majority in Interest of the Investors, if there shall have occurred an event or Xenon 2events which, prior individually or in the aggregate, constitute a Material Adverse Effect on the Company and such Material Adverse Effect on the Company continues for at least thirty (30) days after the date of delivery to the receipt Company by an Investor of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by Material Adverse Effect on the non-breaching partyCompany.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 3 contracts
Sources: Common Stock and Warrant Purchase Agreement (MPM Bio Ventures Iii Lp), Common Stock and Warrant Purchase Agreement (Frazier Healthcare Ii Lp), Common Stock and Warrant Purchase Agreement (Alta Partners)
Termination Events. Without prejudice to other remedies which may be ------------------ available Except as otherwise provided in Section 3.01(b) below, the Forbearance Period shall automatically terminate immediately upon prior written notice (including via email among counsel) from the Agent or the Required Supporting Lenders to the parties by law or this AgreementBorrower of the occurrence of any of the following events (each, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:a “Termination Event”):
(a) by mutual written consent the failure of NBC and Xenon 2any Loan Party to comply with any term, condition, or covenant set forth in this Agreement;
(b) by other than the Specified Default, there occurs either NBC any Event of Default or Xenon 2 by Default under the Credit Agreement that is not cured within five (5) Business Days after the Borrower’s receipt of written notice to from the other parties if Agent or the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, Required Supporting Lenders; provided that the party terminating Forbearance Period shall automatically terminate without notice immediately upon the occurrence of an Event of Default under Section 8.01(g) or 8.01(h) of the Credit Agreement; provided, however, it is agreed that the entry into this Agreement and any filings or other statements related thereto shall not be the occurrence of an event described in material -------- default or breach hereunder Section 8.01(g)(ii) of the Credit Agreement and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) therefore shall not be available to any party whose failure to fulfill any obligation under this Agreement has been terminate the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateForbearance Period;
(c) the Borrower, in writing (including via email among counsel), notifies any Supporting Lender or its representatives that it is terminating discussions with the Supporting Lenders regarding a Potential Transaction;
(d) any representation or warranty made by either NBC any Loan Party contained in this Agreement or Xenon 2 in any certificate, document or financial or other statement furnished by the Borrower or any other Loan Party at any time under or in connection with this Agreement shall be incorrect in any material respect as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall have been untrue or incorrect in any material respect as of such earlier date; provided, that if any such representation or warranty is qualified by or subject to a materiality qualification, such representation or warranty shall fail to be true and correct (after giving effect to any qualification therein) in all respects;
(e) the commencement of any action, suit, litigation, investigation or other proceeding against the Agent or any Supporting Lender by any Loan Party or any of its Affiliates asserting claims relating in any way to the Credit Agreement, the other Credit Documents or this Agreement;
(f) any transaction or payment by any Loan Party or Restricted Subsidiary that is outside of the ordinary course of business of such Loan Party or Restricted Subsidiary, provided that any transaction or payment made by any Loan Party or Restricted Subsidiary in connection with or as a result of its financial condition, including but not limited to payments of advisor fees, legal fees, work-out, refinancing restructuring-related costs, or similar payments, shall be deemed to have been made in the ordinary course of business of such Loan Party or Restricted Subsidiary;
(g) the incurrence by any Loan Party or Restricted Subsidiary of any Lien under clauses (xi) and (xii) of Section 7.16 of the Credit Agreement;
(h) the granting of any security interest by any Loan Party or any Restricted Subsidiary other than pursuant to any Credit Document (including, without limitation, any security interest in any Equity Interests in Gotham Advanced Media and Entertainment, LLC (“GAME”));
(i) the incurrence by any Loan Party or Restricted Subsidiary of any Indebtedness for funded debt or any Indebtedness under clauses (vii) (in excess of $2,500,000.00), (x) (in excess of $2,000,000.00), (xii), (xiii) and (xv) of Section 7.14 of the Credit Agreement; provided that the Loan Parties and the Restricted Subsidiaries shall be permitted to incur obligations in respect of corporate overhead or other amounts allocated from Sphere Entertainment or Sphere Entertainment Group to any Loan Party or Restricted Subsidiary so long as such obligations are (i) not paid in cash, (ii) unsecured and (iii) do not exceed $550,000.00 (x) during each of the forbearance periods covered by the Existing Forbearance Agreement and (y) in the aggregate from and after the Effective Date;
(j) the making of any Investment by any Loan Party or Restricted Subsidiary other than (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful Investment in any Loan Party or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree Permitted Investment (other than a temporary restraining orderany Permitted Investment under clause (e) restraining, enjoining or otherwise prohibiting the consummation (k) of the transactions contemplated herebydefinition thereof);
(k) the making of any Permitted Parent Payment by any Loan Party or Restricted Subsidiary, except payment in respect of indemnities incurred by the Parent, officers, and/or directors in connection with managing the business or affairs of the Parent, the Loan Parties or any Subsidiary, provided that such payments are pursuant to agreements or arrangements in effect at the party seeking Parent prior to terminate this Agreement -------- under this clause the Original Effective Date;
(cl) is the making of any, direct or indirect, Restricted Payment by any Loan Party or Restricted Subsidiary (other than payments to Loan Parties) (including with respect to reimbursement of legal or other professional fees and expenses, but excluding any customary director fees and expenses (including payments in respect of indemnification obligations) and employee and officer compensation (including, but not then limited to, bonuses) in material breach the ordinary course of this Agreement and business, provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) payments of such customary director fees and expenses and employee and officer compensation shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom exceed $200,000.00 (i) determines in good faith and after consultation with a financial advisor during each of nationally recognized reputation to be more favorable to the Xoom stockholders than forbearance periods covered by the transactions contemplated by this Existing Forbearance Agreement and (ii) concludes in good faith based the aggregate from and after the Effective Date, provided, further, such aggregate cap shall not apply to payments in respect of indemnities incurred by the Parent, officers, and/or directors in connection with managing the business or affairs of the Parent, the Loan Parties, or any Subsidiary);
(m) the making of any other payment or transfer of value, assets or property by any Loan Party to the Parent or any of its Affiliates (other than the Loan Parties), except pursuant to (i) agreements or arrangements in effect prior to the Original Effective Date, or (ii) any future agreements or arrangements that are on a basis no less favorable to the advice Loan Party or such Restricted Subsidiary than those that could be obtained at the time for a comparable transaction in an arm’s-length dealing with an unrelated third party (or for purposes of agreements or arrangements with GAME, on a basis no less favorable to the Loan Party or such Restricted Subsidiary than those obtained for a substantially comparable transaction between GAME and YES Network);
(i) any amendment, waiver, supplement or other modification to any employment agreement or employee compensation plan by any Loan Party other than in the ordinary course of business, (ii) the entry by any Loan Party into any new employment agreement or employee compensation plan other than in the ordinary course of business; (iii) the payment of any amount contemplated by any employment agreement or employee compensation plan before the date on which such amount becomes due and payable pursuant to the terms of such agreements or plans, as applicable; or (iv) the payment of any bonus, incentive, retention, severance, change of control, or termination payment, except for payments when due in accordance with the terms of any employment agreement or employee compensation plan that any Loan Party has entered into prior to the Original Effective Date, as applicable, provided that in no event during the Forbearance Period shall any change of control or similar payments be paid as a result of this Agreement or any contemplated restructuring of the Obligations;
(o) the effecting of any transaction under Section 7.22 or Section 7.23 of the Credit Agreement by any Loan Party or Restricted Subsidiary;
(p) the incurrence of any Guarantee in excess of $2,000,000.00 by any Loan Party or Restricted Subsidiary under clause (v) of Section 7.15 of the Credit Agreement;
(q) the effecting of any transaction with any Affiliate by any Loan Party or Restricted Subsidiary, except as permitted under Section 7.20 of the Credit Agreement (other than clauses (d) and (h) thereof);
(r) the making of any Disposition by any Loan Party or any Restricted Subsidiary under clause (iv) of Section 7.24 of the Credit Agreement;
(s) the formation, establishment, or acquisition of any Subsidiary by any Loan Party or by any Restricted Subsidiary;
(t) the taking of any action by any Loan Party or Restricted Subsidiary that results in a Guarantor becoming an Excluded Subsidiary;
(u) the failure by the Borrower to provide written notice to ▇▇▇▇▇ ▇▇▇▇ within three (3) Business Days of receipt of any written notice of any proceeding commenced, or, to the actual knowledge of the Borrower (with such actual knowledge to be the actual knowledge of the Chief Executive Officer, the Executive Vice President of Business Affairs and Distribution, the Borrower’s in-house legal counsel, or the Borrower’s outside legal counsel advisors at PJT Partners LP and/or ▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP so long as such notice is received by persons at such firms who are advising the Borrower in connection with this Agreement), threatened against any Loan Parties;
(v) subject to applicable confidentiality restrictions, the failure of the Loan Parties to promptly provide any information regarding the Loan Parties and their subsidiaries reasonably requested from time to time by ▇▇▇▇▇ ▇▇▇▇ or FTI, provided that the Loan Parties shall have two (2) Business Days to cure such failure from the date that the Agent or Supporting Lenders provide written notice of termination of this Agreement is required pursuant to comply with its fiduciary duties under applicable lawthis Section 3.01(v); or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.and
(i) automatically and without any action the failure by the parties upon Borrowers to pay any of the reasonable and documented fees and expenses of Advisors within five (5) Business Days after the receipt of an invoice therefor or (ii) the termination by the Borrower of the Xenon 2 Merger Agreementengagement letter between the Borrower and FTI, unless there shall have been a breach by FTI of the terms thereof.
Appears in 3 contracts
Sources: Forbearance Agreement (Sphere Entertainment Co.), Forbearance Agreement (Sphere Entertainment Co.), Forbearance Agreement (Sphere Entertainment Co.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) By either the Company and Seller or by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice to the other parties Purchaser if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, an order, judgment decree or ruling or taken any other action (which order, decree (other than a temporary restraining orderor ruling the parties hereto shall use their best efforts to lift) and such was not at the request of the party seeking termination of the Agreement, in each case permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated herebyby this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; or
(b) by Purchaser if the Closing has not taken place on or before December 31, 2010 (the "Initial End Date", as may be extended by Seller pursuant to clause (c) below); provided however, that Purchaser may extend the Initial End Date to February 15, 2011 by written notice to Seller if and only if the extension notice is delivered no later than December 15, 2010; provided further however that the party seeking right of Purchaser to terminate this Agreement -------- under this clause Section (or to extend the Initial End Date) shall not be available if Closing shall not have occurred as a result of any material failure on the part of Purchaser to comply with or perform any covenant or obligation of Purchaser set forth in this Agreement; or
(c) by Seller and the Company if the Closing has not taken place on or before Initial End Date (as may be extended by Purchaser pursuant to clause (b) above); provided however, that Seller and the Company may extend the Initial End Date to February 15, 2011 by written notice to Purchaser if and only if the extension notice is not then in material breach delivered no later than December 15, 2010; provided further however that the right of Seller and Purchaser to terminate this Agreement under this Section (or to extend the Initial End Date) shall not be available if Closing shall not have occurred as a result of any material failure on the part of Seller or the Company to comply with or perform any covenant or obligation of Seller or the Company set forth in this Agreement; or
(d) by the mutual written consent of the parties; or
(e) by Purchaser, if the Company or Seller shall materially breach any obligation or agreement hereunder such that (and providedonly if) the conditions referred to in Section 7 would not be satisfied and such breach shall not have been cured within seven (7) business days following written notice of such breach, further, provided that the right to terminate this Agreement by Purchaser under this clause -------- ------- (cSection 9.1(e) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote where Purchaser is at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified that time in a manner adverse to NBC its approval or recommendation material breach of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC Seller, if Purchaser shall materially breach any obligation or agreement hereunder such that (and only if) the Board conditions referred to in Section 8 would not be satisfied and such breach shall not have been cured within seven (7) business days following written notice of Directors such breach, provided that the right to terminate this Agreement by Seller under this Section 9.1(f) shall not be available where Seller or the Company is at that time in material breach of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;this Agreement; or
(g) by Xoom or Xenon 2Purchaser, if (i) all of the Closing Regulatory Approvals shall have been obtained prior to the receipt Initial End Date (as may be extended hereunder) but any of which contains any of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and Special Regulatory Conditions; or (ii) concludes any of the Closing Regulatory Approvals shall have not been obtained prior to the Initial End Date (as may be extended hereunder) (i.e., the applicable Governmental Body has declined to issue the Closing Regulatory Approvals); provided that the right to terminate this Agreement by Purchaser under this Section 9.1(g)(ii) shall not be available where the applicable Governmental Authority has declined to issue the applicable Closing Regulatory Approval due toPurchaser's breach of its undertakings in good faith based on the advice of outside legal counsel that termination Section 6.1 of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 3 contracts
Sources: Share Purchase Agreement (Partner Communications Co LTD), Share Purchase Agreement (Ampal-American Israel Corp), Share Purchase Agreement (Ampal-American Israel Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement No Party will have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement for a period of thirty-six (36) months after the Effective Date unless the grounds for termination are:
(i) that another Party has been convicted of a violation of a Federal, state or local criminal statute and such conviction actually and materially adversely affects that Party's ability to perform its obligations under this clause -------- ------- Agreement;
(ii) that a final judgment has been entered against another Party finding said Party in violation of a Federal, state or local statute or regulation and such final judgment actually and materially affects that Party's ability to perform its obligations under this Agreement;
(iii) that another Party has (a) filed a voluntary petition in bankruptcy or voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts, or any other relief under the Federal Bankruptcy Code or under any other insolvency act or law now or hereafter existing, (b) made a general assignment for the benefit of creditors, or (c) shall not be available admitted in writing its inability to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingpay its debts as they mature;
(div) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting that another Party has had (a) an involuntary petition filed against it seeking reorganization, arrangement, readjustment of its debts, or any adjournment thereofother relief under the Federal Bankruptcy Code or under any other insolvency act or law now or hereafter existing (b) a receiver or trustee appointed involuntarily, and such petition or action is not suspended, stayed or dismissed within sixty (60) days after filing or appointment, as the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;case may be.
(ev) that a Final Order has been issued by NBC if the Board Arbitrator containing a finding of Directors a material breach of Xoom contract, representation or Xenon 2 or any committee thereof shall have withdrawn or modified warranty given by a Party in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or of any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination other material breach of this Agreement by the Party against which termination is required to comply with its fiduciary duties under applicable lawsought; or
(hvi) that a Change of Control has occurred involving a Party, other than a transaction constituting a Change of Control by either NBC or Xenon 2 in one Party of another Party. With respect to a termination pursuant to subsections (i)-(iv) the Party seeking termination will provide the other Parties sixty (60) days written notice following the occurrence of the event there has been creating the grounds for termination; and, with respect to a material default or breach by termination pursuant to subsection (xvi), the Party seeking termination will provide the other Parties one hundred twenty (120) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by following the non-breaching party.
(i) automatically and without any action by the parties upon the termination occurrence of the Xenon 2 Merger Agreementevent creating the grounds for termination; and with respect to a termination pursuant to subsection (v), the Party seeking termination will have the right to an immediate termination following receipt of the Final Order, but in no event sooner than sixty (60) days from the date a Party first notifies the others in writing of a breach.
Appears in 3 contracts
Sources: Master Agreement (Sprint Spectrum L P), Master Agreement (Sprint Spectrum Finance Corp), Master Agreement (Sprint Spectrum L P)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and by any of Purchaser, the transactions contemplated herein may be abandoned at Company or any time prior to Selling Shareholder, if the Effective Time:
(a) by mutual written consent terminating party is not the cause of NBC and Xenon 2;
(b) by either NBC or Xenon 2 a failure of a condition for the Closing, by written notice to the other parties if party, upon the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement occurrence of any of the parties hereto, provided that following:
(a) on the Closing Date: (i) any of the conditions precedent to the obligations of the terminating party terminating set forth in Article VIII of this Agreement shall not have been satisfied; and (ii) satisfaction of such condition shall not have been waived by the terminating party; provided that, the Company and/or Selling Shareholders shall have thirty (30) days following any notice of failure of satisfaction of any such condition to effect a cure of such failure (and the Closing shall be in material -------- default or breach hereunder and provided, further, that the right postponed to terminate --------- ------- this Agreement under this clause accommodate any such thirty (30) day cure period);
(b) shall not be available to any party whose failure to fulfill any obligation under the FCC denies or designates for hearing the application referenced in Section 6.1 of this Agreement has been and such designation is not reversed upon pleadings of the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateparties;
(c) by either NBC the Station's normal broadcast transmission is continuously interrupted for a period of not less than five (5) consecutive days and the cause of such interruption is not or Xenon 2 cannot be cured on or before sixty (60) days from the date that the Closing would otherwise occur or, if (i) any Governmental Authoritycured, would have after the consent or approval of which is required for Closing a Material Adverse effect on the consummation operation of the transactions contemplated hereby, Station as to materially and adversely alter the normal operation of the Station as presently conducted;
(d) the parties shall mutually agree to terminate this Agreement;
(e) the Closing shall not have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree occurred (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting through the consummation failure of the transactions contemplated hereby, provided that the any party seeking to terminate this Agreement -------- to comply fully with its obligations under this clause (cAgreement) on or before June 30, 1998, or such later date upon which the parties may agree. Notwithstanding this Section 10.1(e), in the event the FCC Consent has not been granted on or before June 30, 1998, and provided that Purchaser is not then in material breach of its obligations under this Agreement and provided, further, that has timely filed an appropriate application for the right FCC Consent and has diligently used best practices to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid obtain the issuance grant of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereofsaid application as expeditiously as practicable, the Xoom Stockholder Approval Closing Date shall be extended to a date not have been obtained later than September 30, 1998 (or by NBC if such later date upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, which the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;parties may agree); or
(f) by NBC if Purchaser does not have adequate financing fully funded on or before September 30, 1997 in order to pay the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved entire Purchase Price pursuant to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Acme Intermediate Holdings LLC), Stock Purchase Agreement (Acme Television LLC)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Alliqua and Xenon 2AquaMed;
(b) by either NBC or Xenon 2 by written notice to the other parties Alliqua if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before such dateFebruary 15, 2019 (other than as a result of any failure on the part of Alliqua to comply with or perform its covenants and obligations under this Agreement);
(c) by AquaMed if the Closing has not taken place on or before February 15, 2019 (other than as a result of any failure on the part of AquaMed to comply with or perform any covenant or obligation set forth in this Agreement);
(d) by either NBC Alliqua or Xenon 2 AquaMed, if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunctionan Order, orderor shall have taken any other action, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Contribution or the transactions contemplated herebyDistribution; provided, provided that the party seeking a Party shall not be permitted to terminate this Agreement -------- under pursuant to this clause (cSection 7.1(d) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid if the issuance of such order, decree Order or ruling;
(d) the taking of such action is attributable to the failure of such Party to perform in any material respect any covenant or obligation in this Agreement required to be performed by either NBC such Party at or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, prior to the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedClosing;
(e) by NBC Alliqua, if the Board any of Directors of Xoom AquaMed’s covenants or Xenon 2 or any committee thereof representations and warranties contained in this Agreement shall have withdrawn or modified been breached in a manner adverse to NBC its approval or recommendation of this Agreementany material respect, the Xenon 2 Merger Agreement or if (i) such breach would cause any of the transactions contemplated hereby conditions in ARTICLE 2 or therebyARTICLE 3 not to be satisfied; and (ii) such breach (if curable) is not cured by AquaMed within thirty (30) calendar days after receiving written notice from Alliqua of such breach;
(f) by NBC AquaMed if the Board any of Directors of Xoom Alliqua’s covenants or representations and warranties contained in this Agreement shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2been breached in any material respect, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom in either case if (i) determines such inaccuracy or breach would cause the conditions in good faith and after consultation with a financial advisor of nationally recognized reputation ARTICLE 2 or ARTICLE 3 not to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement satisfied; and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default such inaccuracy or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, ) is not cured by Alliqua within 30 thirty (30) calendar days after receiving written notice from AquaMed of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.inaccuracy or breach;
Appears in 2 contracts
Sources: Distribution Agreement (AquaMed Technologies, Inc.), Merger Agreement (Alliqua BioMedical, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeabandoned:
(a) by mutual written consent of NBC and Xenon 2the Parties;
(b) by either NBC or Xenon 2 Party by written notice to the other parties Party if the transactions contemplated by this Agreement Closing shall not have not been consummated by December 31on or prior to the date which is six months following the date hereof (such later date, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and “Outside Date”); provided, furtherhowever, that the right to terminate --------- ------- this Agreement under this clause (bSection 7.1(b) shall not be available to any party either Party whose failure to fulfill perform in all material respects any obligation of its obligations under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such date; provided, further, that if the conditions set forth in Section 6.1(b) or 6.1(c) shall not have been satisfied or waived as of the Outside Date but all other conditions set forth in Article VI shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, but provided that such conditions shall then be capable of being satisfied if the Closing were to take place on such date), then either Party may, in its sole and exclusive discretion, extend the Outside Date to the date which is nine months following the date hereof by providing the other Party written notice of such extension on or before the Outside Date;
(c) by either NBC or Xenon 2 Party by written notice to the other Party, if (i) a final, non-appealable Order, decree or ruling enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement to occur on the Closing Date has been issued by any Governmental AuthorityAuthority of competent jurisdiction (unless such Order, the consent decree or approval of which is required for ruling has been withdrawn, reversed or otherwise made inapplicable) or (ii) any Law has been enacted that would make the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate by this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that to occur on the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingClosing Date illegal;
(d) by either NBC Purchaser by written notice to Seller (which shall include notice of Purchaser’s intention to terminate pursuant to this Section 7.1(d)), if (i) any representation or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting warranty of Seller contained in this Agreement shall be inaccurate such that the condition set forth in Section 6.3(a) would not be satisfied, or any adjournment thereof, (ii) the Xoom Stockholder Approval covenants or obligations of Seller contained in this Agreement shall not have been obtained breached in any material respect such that the condition set forth in Section 6.3(b) would not be satisfied; provided, however, that if an inaccuracy or breach is curable by NBC if upon Seller during the 15-day period after Purchaser notifies Seller in writing of the existence of such inaccuracy or breach (the “Seller Cure Period”), then Purchaser may not terminate this Agreement under this Section 7.1(d) as a vote at a duly held Xenon 2 Stockholders Meeting result of such inaccuracy or any adjournment thereof, breach prior to the Xenon 2 Stockholder Approval shall not have been obtainedexpiration of the Seller Cure Period unless Seller is no longer continuing to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(e) by NBC Seller by written notice to Purchaser (which shall include notice of Seller’s intention to terminate pursuant to this Section 7.1(e)), if (i) any representation or warranty of Purchaser contained in this Agreement shall be inaccurate such that the Board condition set forth in Section 6.2(a) would not be satisfied, or (ii) the covenants or obligations of Directors of Xoom or Xenon 2 or any committee thereof Purchaser contained in this Agreement shall have withdrawn been breached in any material respect such that the condition set forth in Section 6.2(b) would not be satisfied; provided, however, that if an inaccuracy or modified breach is curable by Purchaser during the 15-day period after Seller notifies Purchaser in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any writing of the transactions contemplated hereby existence of such inaccuracy or thereby;breach (the “Purchaser Cure Period”), then Seller may not terminate this Agreement under this Section 7.1(e) as a result of such inaccuracy or breach prior to the expiration of the Purchaser Cure Period unless Purchaser is no longer continuing to exercise commercially reasonable efforts to cure such inaccuracy or breach; or
(f) by NBC either Party by notice to the other Party, if the Board of Directors of Xoom Merger Agreement shall have accepted or recommended a Takeover Proposal or shall have resolved been validly terminated pursuant to do so;
(g) by Xoom or Xenon 2, prior to the receipt Section 9.01 of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC the Purchaser and Xenon 2the Seller;
(b) by either NBC or Xenon 2 by written notice from the Seller to the other parties Purchaser (a “Seller Notice”) or from the Purchaser to the Seller (a “Purchaser Notice”), as the case may be, if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement there has been a breach of any representation, warranty, covenant or agreement by the cause ofCompany or Seller, in the case of a Purchaser Notice, or resulted inby the Purchaser, in the failure to consummate case of Seller Notice, or any such representation or warranty shall become untrue after the transactions contemplated date hereof, and such breach is not curable or, if curable, is not cured within the earlier of (i) thirty(30) days after written notice thereof is given by this Agreement on the Purchaser or before such datethe Seller, as applicable, and (ii) the Expiration Date;
(c) by either NBC a Purchaser Notice or Xenon 2 a Seller Notice, as the case may be, in the event the Closing has not occurred on or prior to April 15, 2020 (the “Expiration Date”) for any reason other than delay or nonperformance of or breach by the party seeking such termination; provided, however, that if Closing shall not have occurred due to a failure to satisfy the closing condition contained in Section 7.4 (iConsents) or Section 6.2 (HSR Act) hereof, the Purchaser shall be entitled, but not obligated, to extend the Expiration Date for up to sixty (60) days upon written notice of such extension to the Seller, which notice shall specify a new Expiration Date, which shall then be the Expiration Date for all purposes under this Agreement;
(d) by Purchaser Notice, if between the date hereof and the Closing, an event or condition occurs that has or is reasonably likely to have a Material Adverse Effect; and
(e) by Purchaser Notice or Seller Notice in the event that any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States Body shall have issued a final and unappealable permanent injunction, an order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) action restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on such order, decree, ruling or other action shall have become final and nonappealable; provided, that the advice of outside legal counsel that party so requesting termination of this Agreement is required to comply with shall have used its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreementcommercially reasonable efforts, in each case which default accordance with Section 5.18, to have such order, decree, ruling or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyother action vacated.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Montrose Environmental Group, Inc.), Membership Interest Purchase Agreement (Montrose Environmental Group, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) 7.1.1 by the mutual written consent of NBC HBR and Xenon 2IWRA;
7.1.2 by HBR at any time on or before the Due Diligence Termination Date if HBR determines in its reasonable discretion that, as a result of items disclosed in the final Phase I Report which were not previously disclosed to HBR in the draft Phase I Environmental Site Assessment, dated August 25, 1999, prepared by Terracon and in that certain update letter thereto, dated August 26, 1999, each delivered to HBR on August 26, 1999, all or any portion of the Property is not acceptable to HBR, in which case (a) IWRA shall pay the cancellation charges, if any, of Escrow Agent and Title Company and (b) by either NBC or Xenon 2 by written notice to IWRA shall reimburse HBR for its reasonable out-of pocket costs and expenses (including, without limitation, reasonable attorneys' fees, charges and disbursements) incurred in connection with the other parties if negotiation of the transactions transaction contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided and HBR's due diligence efforts; PROVIDED that the party terminating this Agreement amount of such reimbursement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateexceed $150,000;
(c) 7.1.3 by either NBC HBR or Xenon 2 IWRA if (i) any Governmental Authority, the consent or approval of which is required for a condition to the consummation obligations of HBR and IWRA to consummate any of the transactions contemplated herebyby this Agreement, the Lease, the Management Agreement or the Sponsorship Agreement, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful unsuccessful, or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, an order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation all of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement, the Lease or the Management Agreement, and such order, judgment or decree shall have become final and nonappealable;
7.1.4 by HBR or IWRA if a Governmental Authority has required a change to be made to this Agreement, the Lease, the Management Agreement and/or the transactions contemplated by such documents, and (ii) concludes either party, after prompt and diligent negotiations held in good faith based with the other party shall have determined that any required changes will cause such party to suffer economic detriment of more than $50,000 and such party's business objectives and economic position as contemplated herein and in the Lease and the Management Agreement cannot be preserved;
7.1.5 by HBR if, on the advice of outside legal counsel its counsel, it determines that termination there is a reasonable likelihood that approval of the transactions contemplated in this Agreement, the Lease and the Management Agreement is required to comply with its fiduciary duties will not be granted by the applicable Governmental Authorities within sixty (60) days of HBR's first submission of filings under applicable law; orthe HSR Act;
(h) 7.1.6 by either NBC or Xenon 2 in the event HBR if there has been a material default or breach by (x) NBCIWRA of any representation, where Xenon 2 is terminating warranty, covenant or agreement set forth in this Agreement, which breach has not been cured within ten (10) Business Days following receipt by the breaching party of notice of such breach, in which case IWRA shall pay the cancellation charges, if any, of Escrow Agent and Title Company;
7.1.7 by IWRA if there has been a material breach by HBR of any representation, warranty, covenant or (y) Xoom or Xenon 2, where NBC is terminating agreement set forth in this Agreement, in each case which default or breach is has not curable, or if curable, is not been cured within 30 days after written ten (10) Business Days following receipt by the breaching party of notice of such breach is given breach, in which case HBR shall pay the cancellation charges, if any, of Escrow Agent and Title Company;
7.1.8 by HBR pursuant to the non-breaching party.terms of Section 4.2.3, Section 6.2, or Article 13;
7.1.9 by IWRA pursuant to the terms of Section 6.4; and
7.1.10 by HBR or IWRA if the Closing has not occurred by March 31, 2000; provided, however, that (i) automatically HBR shall not be entitled to terminate this Agreement pursuant to this Section 7.1.10 if a knowing or willful breach of this Agreement by HBR has prevented the Closing from occurring by such date, and without any action (ii) IWRA shall not be entitled to terminate this Agreement pursuant to this Section 7.1.10 if a knowing or willful breach of this Agreement by IWRA has prevented the parties upon the termination of the Xenon 2 Merger AgreementClosing from occurring by such date.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Harveys Casino Resorts), Purchase and Sale Agreement (Harveys Casino Resorts)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 by written notice the Company if (i) the SEC has notified Parent that it has no further comments to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement Proxy Statement on or before February 14, 2007 and the Closing has not occurred on or prior to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the SEC has notified Parent that it has no further comments on the Proxy Statement after February 14, 2007 but on or before March 15, 2007 and the Closing has not occurred on or before April 30, 2007 or (iii) the SEC has notified Parent that it has no further comments on the Proxy Statement after March 15, 2007 and the Closing has not occurred on or before May 31, 2007, unless, in each case (x) the non-terminating party’s failure to close prior to the applicable date resulted from any failure on the part of such dateterminating party to comply with in all material respects, or perform in all material respects, any covenant or obligation of such terminating party set forth in this Agreement, and (y) the non-terminating party provided written notice of such failure to the terminating party as soon as practicable after it had knowledge thereof;
(c) by either NBC Parent or Xenon 2 the Company if: (i) the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the proposal to approve the Merger, and (ii) the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Merger Stockholder Vote; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure to have the Merger approved by the Required Parent Merger Stockholder Vote is attributable to a failure on the part of the party seeking to terminate this Agreement to perform in any material respects any covenant or obligation in this Agreement required to be performed by such party at or prior to the Effective Time;
(d) by the Company, if, prior to the Merger having been approved at the Parent Stockholders’ Meeting (or at any adjournment or postponement thereof) by the Required Parent Merger Stockholder Vote, (i) Parent receives a written communication from the banking firm providing the fairness opinion or valuation opinion obtained by Parent in connection with the Contemplated Transactions rescinding, withdrawing or adversely modifying such fairness opinion or valuation opinion, or (ii) Parent’s board of directors withdraws the Parent Board Recommendation or adversely modifies the Parent Board Recommendation;
(e) by Parent if: (i) any Governmental Authority, the consent representation or approval of which is required for the consummation warranty of the transactions contemplated hereby, Company contained in this Agreement shall have determined not to grant its consent be inaccurate or approval and all appeals of such determination shall have been taken breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 6.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date: (A) all “Material Adverse Effect” and other materiality qualifications limiting the scope of such representations and warranties shall be disregarded; and (B) any update of or modification to the Disclosure Schedule made or purported to have been unsuccessful made on or after the date of this Agreement shall be disregarded, provided that any update to Part 2.9 or Part 2.10 of the Disclosure Schedule permitted hereby for the purpose of adding to Part 2.9 or Part 2.10 of the Disclosure Schedule a list of any Material Contracts or licenses for Intellectual Property entered into after the execution of this Agreement of the type described in Section 4.2(b)(ix) and Section 4.2(b)(x) shall be deemed to update the Disclosure Schedule, but solely for the purposes of determining whether the representations and warranties of the Company set forth in this Agreement are inaccurate or have been breached as of the Closing Date (as if such representations and warranties had been made on and as of the Closing Date); or (ii) any of the covenants or obligations of the Company contained in this Agreement shall have been breached in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of the Company as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by the Company is curable by the Company through the use of commercially reasonable efforts during the 30-day period after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(e) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(f) by the Company if: (i) any representation or warranty of Parent contained in this Agreement shall be inaccurate or shall have been breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied; or (ii) if any of Parent’s or Merger Sub’s covenants or obligations contained in this Agreement shall have been breached in any material respect, including Parent’s and Merger Sub’s obligation to effect the Merger upon the satisfaction of the conditions set forth in Section 6; provided, however, that if an inaccuracy in or breach of any representation or warranty of Parent as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by Parent is curable by Parent through the use of commercially reasonable efforts during the 30-day period after the Company notifies Parent in writing of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(g) by Parent if: (i) there shall have occurred any Material Adverse Effect; or (ii) any event shall have occurred or circumstance shall exist that, in combination with any other events or circumstances, would reasonably be expected to have or result in a Material Adverse Effect; provided, however, that if such Material Adverse Effect is curable by the Company through the use of commercially reasonable efforts during the 30-day period after Parent notifies the Company in writing of the existence thereof (the “MAE Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(g) as a result of such Material Adverse Effect prior to the expiration of the MAE Cure Period, provided the Company, during the MAE Cure Period, continues to exercise commercially reasonable efforts to cure such Material Adverse Effect;
(h) by either Parent or the Company if a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunctionnonappealable Order, orderor shall have taken any other action, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Merger;
(i) by the transactions contemplated herebyCompany during the 15-day period commencing on the date 21 days after the date on which the Wachovia Financing Commitment is terminated, provided revoked or amended such that the party seeking aggregate amount of financing contemplated by the Wachovia Financing Commitment to be loaned to Parent or the Company at the Closing decreases below $40 million, if on or prior to the date of such termination, Parent shall have failed to obtain one or more replacement Financing Commitments resulting in the aggregate amount of financing contemplated by all outstanding Financing Commitments (other than any Stockholder Loans to be lent to Parent or the Company at Closing) being at least $40 million; provided, however, that the Company shall not be permitted to terminate this Agreement -------- under pursuant to this clause Section 8.1(i) if the failure of Parent to obtain any replacement Financing Commitment is caused by or otherwise results from, principally or in significant part, any one or more of the following factors: (cA) is not then in material any inaccuracy or breach of any of the representations or warranties set forth in Section 2.4; or (B) any failure of the Company to perform in any material respects any covenant or obligation in this Agreement and required to be performed by the Company prior to the Effective Time;
(j) by the Company if the preliminary Proxy Statement shall not have been filed with the SEC in a form that substantially complies with Regulation 14A promulgated under the Exchange Act on or before the date that is 20 business days after the date of this Agreement; provided, furtherhowever, that in no event shall the Company have the right or power to terminate this Agreement under pursuant to this clause -------- ------- (cSection 8.1(j) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board failure of Directors Parent to meet the foregoing deadline is caused by or otherwise results from, principally or in significant part, any one or more of Xoom the following factors: (A) any failure of the Company to perform in any material respects any covenant or Xenon 2 or obligation in this Agreement required to be performed by the Company prior to the Effective Time; (B) any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation failure of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby Company’s financial statements included or thereby;
(f) by NBC if required to be included in the Board preliminary Proxy Statement to be prepared in accordance with GAAP and fairly present in all material respects the financial position, results of Directors of Xoom shall have accepted operations or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt cash flows in any material respect as of the Xoom Stockholder Approvaldate of such financial statements and for the periods presented therein; or (C) any actions, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based omissions or delays on the advice part of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawthe auditors for either Parent or the Company; or
(hk) by either NBC or Xenon 2 in Parent if the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating Required Company Merger Stockholder Votes are not obtained within three business days after the date of this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Acquicor Technology Inc), Merger Agreement (Conexant Systems Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing, whether before or after approval of this Agreement by the Agri-Energy Partners:
(a) by mutual written consent of NBC Purchaser and Xenon 2the Seller;
(b) by either NBC Purchaser or Xenon 2 by written notice the Seller, if there shall be any Law enacted or deemed applicable to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided Contemplated Transactions that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the makes consummation of the transactions contemplated herebyContemplated Transactions illegal, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) if any court Order by any Governmental Body of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment preventing or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated herebyContemplated Transactions shall have become final and nonappealable; provided, provided however, that the party seeking to terminate this Agreement -------- under pursuant to this clause Section 8.1(b) must have used all reasonable efforts to remove any such Order prior to the Termination Date;
(c) is not then by Purchaser, if there has been a material inaccuracy of any representation or warranty, or a failure to comply with or perform any covenant or agreement contained in material breach of this Agreement and or the Related Agreements on the part of the Acquired Companies or the Seller which inaccuracy or failure causes any of the conditions set forth in Article 6 to not be satisfied; provided, furtherhowever, that the right to Purchaser may not terminate this Agreement under this clause -------- ------- this
Section 8.1 (c) shall not be available on account of an inaccuracy in the Acquired Companies’ or the Seller’s representations and warranties, or on account of a failure to any party who shall not have used reasonable commercial efforts comply with or perform a covenant by the Acquired Companies or the Seller, if such inaccuracy or failure is curable by the Acquired Companies or the Seller, unless the Acquired Companies or the Seller fail to avoid the issuance cure such inaccuracy or breach within 15 days after receiving written notice from Purchaser of such order, decree inaccuracy or rulingfailure;
(d) by either NBC the Seller, if there has been a material inaccuracy of any representation or Xenon 2 warranty, or a failure to comply with or perform any covenant or agreement contained in this Agreement or the Related Agreements on the part of Purchaser, which inaccuracy or failure causes any of the conditions set forth in Article 7 to not be satisfied; provided, however, that the Seller may not terminate this Agreement under this Section 8.1(d) on account of an inaccuracy in Purchaser’s representations and warranties, or on account of a failure to comply with or perform a covenant by Purchaser, if upon a vote at a duly held Xoom Stockholders Meeting such inaccuracy or any adjournment thereoffailure is curable by Purchaser, unless Purchaser fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Xoom Stockholder Approval shall not have been obtained Seller of such inaccuracy or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;failure; or
(e) by NBC Purchaser or the Seller, if the Board Closing has not taken place on or before November 30, 2010 (the “Termination Date”) (other than as a result of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, failure on the Xenon 2 Merger Agreement or any part of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third terminating party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with or perform any of its fiduciary duties under applicable law; or
(h) by either NBC covenants or Xenon 2 obligations set forth in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Acquisition Agreement (Gevo, Inc.), Acquisition Agreement (Gevo, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available Anything contained in this Agreement to the parties by law or this Agreementcontrary notwithstanding, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC and Xenon 2;either Sellers or Buyer:
(b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) if the Bankruptcy Court shall have determined that it will not enter the Approval Order or if a Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Governmental Authority, the consent or approval of final and non-appealable applicable Law (including any Order) which is required for in effect and has the effect of making the Transactions illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval Transactions and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) which is not then in material breach of this Agreement and satisfied, resolved or preempted by the Approval Order; provided, furtherhowever, that the right to terminate this Agreement under pursuant to this clause -------- ------- (cSection 12.1(a)(i) shall not be available to any party who Party whose material breach of any of its representations, warranties, covenants or agreements contained herein results in or causes such event;
(ii) if the Closing shall not have used reasonable commercial efforts occurred by 11:59 p.m. New York City time on February 19, 2019 (the “Outside Date”); provided, however, that the right to avoid terminate this Agreement pursuant to this Section 12.1(a)(ii) shall not be available to any Party whose material breach of any of its representations, warranties, covenants or agreements contained herein results in the issuance failure of the Closing to be consummated by such order, decree or rulingtime;
(diii) if Sellers accept or agree to any Competing Transaction or upon approval by either NBC the Bankruptcy Court of, or Xenon 2 the filing by or on behalf of any Seller of a motion or other request to approve, a Competing Transaction; provided, however, that if upon Seller, pursuant to Section 8.2(c) and the Bidding Procedures Order, has designated Buyer as a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval “Back-Up Bidder,” then Buyer shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse be permitted to NBC its approval or recommendation of terminate this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt Outside Date except as consistent with the terms of Section 8.2(c) and the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawBidding Procedures Order; or
(hiv) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after mutual written notice consent of such breach is given by the non-breaching partySellers and Buyer.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) Mutually, by mutual the written consent of NBC the Company and Xenon 2Consent of the Investors;
(b) by either NBC the Company or Xenon 2 Consent of the Investors by giving written notice to the other party or parties if the transactions contemplated by this Agreement Closing shall not have not been consummated by occurred prior to December 31, 19992002, unless extended by written agreement of the parties hereto, parties; provided that the party terminating seeking termination pursuant to this Agreement shall subsection (b) is not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause subsection (b) shall not be available (i) to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such datedate or (ii) in the event that the Closing shall not have occurred as a result of a failure of any representation to be true and correct and the party seeking termination knew of such breach prior to the date of this Agreement;
(c) by either NBC the Company or Xenon 2 Consent of the Investors by giving written notice to the other party or parties if (i) any Governmental Authority, the consent Entity shall have issued an injunction or approval of which is required for other ruling prohibiting the consummation of any of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of by this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) such injunction or other ruling shall not be available subject to any party who appeal or shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingbecome final and unappealable;
(d) by either NBC the Company or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, Consent of the Xoom Investors in the event that Stockholder Approval shall is not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;Stockholders' Meeting; or
(e) by NBC any Investor Group entitled to purchase less than 10% of the Common Shares pursuant to Section 2.1 herein if within 2 Business Days following receipt of a notice of the Board Consent of Directors the Investors, the controlling Affiliate of Xoom either or Xenon 2 both of such Investor Groups delivers to the Company and to the controlling Affiliate of each other Investor Group a notice of termination under this Section 8.1(e); provided that such termination shall be with respect only to the rights and obligations between such Investor Group(s) or any committee thereof subset of Investors therein to which the termination notice is applicable, on the one hand, and the Company and each other Investor, on the other, and shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior no event be with respect to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its rights and obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to among the Xoom stockholders than the transactions contemplated by this Agreement and other Investors or (ii) concludes in good faith based between the other Investors on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in one hand, and the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by Company on the non-breaching partyother.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Common Stock and Warrant Purchase Agreement (Ista Pharmaceuticals Inc), Common Stock and Warrant Purchase Agreement (Ista Pharmaceuticals Inc)
Termination Events. Without Notwithstanding the foregoing, in addition and without prejudice to any other remedies which may be ------------------ available to the parties by law or this Agreement, right and/or remedy under this Agreement may be terminated and and/or the transactions contemplated herein may be abandoned at any time applicable law, prior to the Effective Time:Closing the Parties shall be entitled (but not obligated) to terminate this Agreement at any time, upon the occurrence of any of the following events (or any combination thereof):
(a) 12.2.1. Any Party has committed a Material Breach under this Agreement or under the Ancillary Agreements and has failed to rectify such breach within 10 days of its receipt of a written demand to do so, then and in such event the aggrieved Party shall be entitled to terminate this Agreement unilaterally by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by serving written notice to that effect on the other parties if defaulting Party. For the transactions contemplated by purposes of this Agreement have not been consummated by December 31Section 12.2.1, 1999, unless extended by written agreement a breach of the parties hereto, provided that the party terminating this Agreement shall not be in deemed to be material -------- default or breach hereunder and provided, further, that if it goes to the right to terminate --------- ------- root of this Agreement under this clause and/or may reasonably be deemed to substantially frustrate the purpose and intent of the Parties hereto (b) a “Material Breach”).
12.2.2. There shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval a final non-appealable order of which is required for a court of competent jurisdiction preventing the consummation of the transactions contemplated herebyTransaction;
12.2.3. There shall be any statute, shall have determined not rule, regulation or order enacted, promulgated or issued or deemed applicable to grant the Transaction by any governmental body that would make the Closing of the Transaction illegal; and/or
12.2.4. Any Party becomes insolvent or admits in writing its inability to pay its debts as they mature, or applies for, consents to or acquiesces in the appointment of a trustee or receiver or liquidator (or any analogue officer) for such entity or any property thereof; or, in the absence of such application, consent or approval acquiescence, a trustee or receiver or liquidator (or any analogue officer) is appointed for such entity or for a substantial part of the property thereof and all appeals of such determination shall have been taken and have been unsuccessful or is not discharged within 90 (iininety) days; or, any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunctionbankruptcy, order, judgment insolvency or other decree proceeding under any bankruptcy or insolvency law is instituted by or brought against such entity, and if instituted against such entity is consented to or acquiesced in by the Company or remains for 90 (other than a temporary restraining orderninety) restrainingdays undismissed; or such entity shall commence winding-up by reason of insolvency or shall make assignment for the benefit of creditors.
12.2.5. Any judgment, enjoining writ, warrant or otherwise prohibiting the consummation attachment or execution or similar process shall be issued or levied against all or any substantial part of the transactions contemplated hereby, provided that property of any Party or the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement Purchased Companies and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such orderreleased, decree vacated or ruling;
fully bonded within 90 (dninety) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyits issue or levy.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Elbit Imaging LTD)
Termination Events. Without prejudice By notice given prior to other remedies which may be ------------------ available or at the Closing, subject to the parties by law or this AgreementSection 9.2, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeas follows:
(a) by mutual written consent agreement of NBC Buyer and Xenon 2Parent (each, a “Representative Party”);
(b) by either NBC Representative Party (provided that neither the terminating Representative Party nor any of its Affiliates is then in material breach of any representation, warranty, covenant, or Xenon 2 other agreement contained in this Agreement) in the event of a material breach by the other Representative Party or a party Affiliated with the other Representative Party of any representation or warranty contained in this Agreement which cannot be or has not been cured within thirty (30) days after the giving of written notice to other Representative Party of such breach and which breach is reasonably likely, in the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement opinion of the parties heretoterminating Representative Party, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available permit such Representative Party to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure refuse to consummate the transactions contemplated by this Agreement on or before such datein accordance with the terms hereof;
(c) by either NBC or Xenon 2 if Representative Party (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that neither the party seeking to terminate this Agreement -------- under this clause (c) terminating Representative Party nor any of its Affiliates is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) in the event of a material breach by the other Representative Party or a party Affiliated with the other Representative Party of any covenant or agreement contained in this Agreement which cannot be or has not been cured within ten (10) days after the giving of written notice to other Representative Party of such breach and providedwhich breach is reasonably likely, furtherin the opinion of the terminating Representative Party, that to permit such Representative Party to refuse to consummate the right to terminate transactions contemplated by this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid in accordance with the issuance of such order, decree or rulingterms hereof;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or Representative Party in the event (i) any adjournment thereof, Consent of any Governmental Body required for consummation of the Xoom Stockholder Approval transactions contemplated hereby shall not have been obtained denied by final nonappealable action of such authority or if any action taken by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting such authority is not appealed within the time limit for appeal or any adjournment thereof, (ii) the Xenon 2 Stockholder Approval consummation of such transactions shall not have been obtained;permanently and restrained, enjoined or otherwise prohibited by force of law; or
(e) by NBC if either Representative Party in the Board of Directors of Xoom or Xenon 2 or any committee thereof event that the Closing shall not have withdrawn or modified in a manner adverse been consummated by December 31, 2005 (the “Termination Date”); provided that the failure to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of consummate the transactions contemplated hereby on or thereby;
(f) before such date shall not have been caused by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination any breach of this Agreement is required by the Representative Party electing to comply with its fiduciary duties under applicable law; or
(hterminate pursuant to this Section 9.1(e) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice an Affiliate of such breach is given by the non-breaching partyRepresentative Party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Stewart & Stevenson LLC), Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available Anything contained in this Agreement to the parties by law or contrary notwithstanding (other than as provided in the last sentence of this AgreementSection 11.1), this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing Date:
(a) by mutual written consent of NBC Sellers and Xenon 2;Buyer; or
(b) by either NBC Sellers or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;Buyer:
(c) by either NBC or Xenon 2 if (i) if the Bankruptcy Court rules that it does not approve this Agreement for any reason or if a Governmental AuthorityAuthority issues a final, the consent non-appealable ruling or approval of which is required for the consummation of Final Order permanently prohibiting the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, furtherhowever, that the right to terminate this Agreement under pursuant to this clause -------- ------- (cSection 11.1(b)(i) shall not be available to any party who Party whose breach of any of its representations, warranties, covenants or agreements contained herein results in such ruling or Order;
(ii) if the Closing shall not have used reasonable commercial efforts occurred by the close of business on May 26, 2017 (the “Outside Date”); provided, however, that the right to avoid terminate this Agreement pursuant to this Section 11.1(b)(ii) shall not be available to any Party whose breach of any of its representations, warranties, covenants or agreements contained herein results in the issuance failure of the Closing to be consummated by such ordertime;
(iii) if (A) the Sale Hearing is not held on or before May 5, decree 2017; provided, however, if the Sale Hearing is delayed due to the Bankruptcy Court’s unavailability, the next Business Day on which the Bankruptcy Court is available, or ruling(B) the Bankruptcy Court has not entered the Sale Order on or before May 8, 2017; provided, however, if approval of the Sale Order is delayed due to the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇’s unavailability, the next Business Day on which the Bankruptcy Court is available;
(iv) if the Sale Order is vacated; or
(v) if Sellers (A) file any stand-alone plan of reorganization or liquidation that does not contemplate, the implementation or consummation of, the transactions provided for in this Agreement or (B) consummate an Alternative Transaction, including without limitation the transfer of the Acquired Assets to the Successful Bidder; or
(c) by Buyer:
(i) in the event of any breach by any Seller of any of its agreements, covenants, representations or warranties contained herein that would result in the failure of a condition set forth in Article IX to be satisfied, and the failure of Sellers to cure such breach by the earlier of (A) the Outside Date and (B) the date that is fifteen (15) days after receipt of the Buyer Termination Notice; provided, however, that (1) Buyer is not in breach of any of its representations, warranties, covenants or agreements contained herein in a manner that would result in the failure of a condition set forth in Article X to be satisfied, (2) Buyer notifies Sellers in writing (the “Buyer Termination Notice”) of its intention to exercise its rights under this Section 11.1(c)(i) as a result of the breach, and (3) Buyer specifies in the Buyer Termination Notice the representation, warranty, covenant or agreement contained herein of which Sellers are allegedly in breach;
(ii) if the Bankruptcy Case is dismissed or converted to a case under Chapter 7 of the Bankruptcy Code and neither such dismissal nor conversion expressly contemplates the consummation of the transactions provided for in this Agreement; or
(iii) if any conditions to the obligations of Buyer set forth in Article IX shall have become incapable of fulfillment other than as a result of a breach by Buyer of any covenant or agreement contained in this Agreement; or
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;Sellers:
(ei) except as provided in Section 11.1(d)(ii), in the event of any breach by NBC if the Board Buyer of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of its agreements, covenants, representations or warranties contained herein that would result in the transactions contemplated hereby or thereby;
failure of a condition set forth in Article X to be satisfied, and the failure of Buyer to cure such breach by the earlier of (fA) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
Outside Date and (gB) by Xoom or Xenon 2, prior to the date that is fifteen (15) days after receipt of the Xoom Stockholder ApprovalSellers Termination Notice; provided, on five business days written noticehowever, ifthat Sellers (1) are not themselves in material breach of any of their representations, Xoom receiveswarranties, without violating its obligations covenants or agreements contained herein, (2) notify Buyer in writing (the “Sellers Termination Notice”) of their intention to exercise their rights under this Section 5.5 hereof11.1(d)(i) as a result of the breach, a bona fide Takeover ----------- Proposal from a third party on terms and (3) specify in the Sellers Termination Notice the representation, warranty, covenant or agreement contained herein of which Buyer is allegedly in breach; or
(ii) if the Board of Directors of Xoom (i) determines in good faith and after consultation Sale Order with a financial advisor of nationally recognized reputation respect to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement has been entered and is not subject to any stay on enforcement and (iiA) concludes in good faith based on Sellers have provided Buyer with written notice that they are prepared to consummate the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) transactions contemplated by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, (B) the conditions to Closing in Article IX have been satisfied (or waived by Buyer), other than those conditions that by their nature can only be satisfied at Closing, and (yC) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is the Closing Date does not curable, or if curable, is not cured occur within 30 days after written notice three (3) Business Days of Sellers providing Buyer with such breach is given by the non-breaching partynotice.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Camping World Holdings, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC Sellers and Xenon 2Buyers;
(b) by either NBC Sellers or Xenon 2 Buyers by giving written notice to the other parties Party if the transactions contemplated Closing shall not have occurred by this Agreement have not been consummated by December October 31, 19992014 (the “Outside Date”), unless extended by written agreement of the parties heretoSellers and Buyers; provided, provided that the party terminating this Agreement Outside Date shall be automatically extended on a day-for-day basis (but in no event beyond December 31, 2014), to the extent that the sole reason that the Closing shall not have occurred is a failure of either or both of the conditions set forth in Section 7.1(b) and Section 7.1(c) (or Section 7.1(a), to the extent related thereto) to have been satisfied by the Outside Date, and; provided further, that a Party shall not be permitted to terminate pursuant to this subsection (b) if such Party is in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such datehereunder;
(c) by either NBC Sellers or Xenon 2 Buyers by giving written notice to the other Party if such other Party has breached its covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in ARTICLE VII not to be satisfied and, except in the case of a breach of Buyers’ obligation to effect the Closing and pay the Purchase Price in accordance with the terms of ARTICLE II, such breach has not been cured within thirty (i30) days after written notification thereof by the Party seeking termination hereunder;
(d) by either Sellers or Buyers by giving written notice to the other Party if any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States Authority shall have issued a final and unappealable permanent injunction, an order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated herebyby this Agreement, provided that the party seeking and such order, decree, ruling or other action shall not be subject to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement appeal or shall have become final and unappealable; provided, further, that the right to terminate this Agreement under this clause -------- ------- subsection (cd) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of Party whose default or breach hereunder has resulted in such order, decree decree, ruling or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedother Action;
(e) by NBC the Sellers if (i) all the Board conditions set forth in Section 7.1 and Section 7.3 and have been satisfied (and continue to be satisfied) or irrevocably waived (other than any such conditions which by their terms are not capable of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, being satisfied until the Xenon 2 Merger Agreement or any of Closing Date) and (ii) the Buyers do not consummate the transactions contemplated hereby or thereby;within three (3) Business Days of the day the Closing is required to occur pursuant to Section 2.5; or
(f) by NBC if the Board of Directors of Xoom shall have accepted either Sellers or recommended a Takeover Proposal or shall have resolved Buyers pursuant to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party6.18(d).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (NRG Yield, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and by delivery of a written notice to each of the transactions contemplated herein may be abandoned at any time prior to the Effective Timeother parties hereto as follows:
(a) by Globalstar, Loral and the Informal Noteholders Committee (as a group), upon mutual written consent agreement of NBC Globalstar and Xenon 2all Parties in Interest prior to entry of the Confirmation Order;
(b) by either NBC Globalstar, Loral or Xenon 2 by written notice to the other parties if the transactions contemplated by Informal Noteholders Committee (as a group), upon material breach of this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties any other party hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC Globalstar, Loral or Xenon 2 if the Informal Noteholders Committee (i) any Governmental Authorityas a group), upon the consent taking of an action materially inconsistent with this Agreement or approval of which is required for the consummation terms and conditions of the transactions contemplated hereby, shall have determined not MOU by any party hereto pursuant to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (iiSection 2(c) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingAgreement;
(d) by either NBC Globalstar, Loral or Xenon 2 if the Informal Noteholders Committee (as a group), upon a vote at a duly held Xoom Stockholders Meeting or entry of an order by the Bankruptcy Court confirming any adjournment thereof, plan for Globalstar other than the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedProposed Plan;
(e) by NBC Globalstar, Loral or the Informal Noteholders Committee (as a group), if holders of more than 20% in the Board aggregate principal amount, on a per issue basis, of Directors the Senior Notes that are not members of Xoom or Xenon 2 or any committee thereof the Informal Noteholders Committee shall have withdrawn or modified in a manner take actions which are materially adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any obligations hereunder of the transactions contemplated hereby or therebyrespective members of the Informal Noteholders Committee;
(f) by NBC Globalstar, Loral or the Informal Noteholders Committee (as a group), if there shall be any material amendment of, supplement to, modification to, or severance of any provision of, the Board Proposed Plan which is materially inconsistent with the terms and conditions of Directors the MOU (including, without limitation, a material amendment of, supplement to, modification to, or severance of, the release and indemnification provisions of Xoom shall have accepted the MOU), except if any such material amendment of, supplement to, modification to, or recommended a Takeover Proposal or shall have resolved severance of any provision of, the Proposed Plan is consented to do soby all parties hereto;
(g) by Xoom Loral or Xenon 2the Informal Noteholders Committee (as a group), if:
(i) Globalstar has not commenced the Chapter 11 Cases on or before February 15, 2002 (the "Commencement Date");
(ii) the Proposed Plan and the related disclosure statement (the "Disclosure Statement") shall not have been filed by the Proponents pursuant to sections 1121 and 1125 of the Bankruptcy Code and Federal Rule of Bankruptcy Procedure 3016 within 60 days of the Commencement Date;
(iii) the Disclosure Statement shall not have been approved by the Bankruptcy Court within the earlier of (A) 60 days after the date the Disclosure Statement is filed, and (B) 120 days after the Commencement Date, but in no event shall the Disclosure Statement be approved by the Bankruptcy Court prior to the receipt expiration of the Xoom Stockholder ApprovalDiligence Period;
(iv) the Confirmation Order shall not have been entered within the earlier of (A) 75 days after the date the Disclosure Statement is approved, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (iiB) concludes 195 days after the Commencement Date; and
(v) the Proposed Plan shall not have become effective as defined in good faith based on the advice Proposed Plan within the earlier of outside legal counsel that termination (A) 60 days after the date of this Agreement is required to comply with its fiduciary duties under applicable law; orthe Confirmation Order, and (B) 255 days after the Commencement Date.
(h) by either NBC or Xenon 2 in the event there has been Informal Noteholders Committee (as a material default or breach by (xgroup) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice pursuant to the terms of such breach is given by the non-breaching party.Section 3 hereof; and
(i) automatically and without any action by Loral or the parties upon Informal Noteholders Committee (as a group) pursuant to the termination terms of the Xenon 2 Merger AgreementSection 4 hereof.
Appears in 2 contracts
Sources: Plan Support Agreement (Globalstar Lp), Plan Support Agreement (Loral Space & Communications LTD)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent either the Purchaser or the Seller if the Transactions shall not have been consummated by February 15th, 2010 (the "Termination Date"); provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1 if the failure to consummate the Transactions by the Termination Date is attributable to a failure on the part of NBC such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Closing Date, and Xenon 2the Seller shall not be permitted to terminate this Agreement pursuant hereto unless the Seller shall have made any payment required to be made to the Purchaser pursuant to Section 8.4;
(b) by either NBC the Purchaser or Xenon 2 by written notice to the other parties Seller if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, non-appealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Transactions;
(c) by the transactions contemplated herebySeller if (the Agreement and Asset Sale shall not have been approved at the Shareholders' Meeting (or at any adjournment or postponement thereof) by the Required Shareholder Approval; provided, provided however, that the (i) a party seeking shall not be permitted to terminate this Agreement -------- under pursuant to this clause (cSection 8.1(c) if the failure to have the Agreement and Asset Sale approved by the Required Shareholder Approval is not then attributable to a failure on the part of such party to perform any covenant in material breach of this Agreement required to be performed by such party at or prior to the Closing Date, and provided, further, that (ii) the right Seller shall not be permitted to terminate this Agreement under pursuant to this clause -------- ------- (cSection 8.1(c) unless the Seller shall not have made any payment required to be available made to any party who shall not have used reasonable commercial efforts the Purchaser pursuant to avoid the issuance of such order, decree or rulingSection 8.4;
(d) by either NBC or Xenon 2 the Purchaser if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval Triggering Event shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedoccurred;
(e) by NBC the Purchaser if (i) any of the Board Seller's representations and warranties contained in this Agreement shall be inaccurate as of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation the date of this Agreement, or shall have become inaccurate as of a date subsequent to the Xenon 2 Merger date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 6.1 would not be satisfied, or (ii) any of the transactions contemplated hereby Seller's covenants contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the Seller's representations and warranties as of a date subsequent to the date of this Agreement or thereby;a breach of a covenant by the Seller is curable by the Seller and the Seller is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then the Purchaser may not terminate this Agreement under this Section 8.1(e) on account of such inaccuracy or breach; or
(f) by NBC the Seller if (i) any of the Board representations and warranties of Directors the Purchaser contained in this Agreement shall be inaccurate as of Xoom shall have accepted or recommended a Takeover Proposal the date of this Agreement, or shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied, or (ii) if any of the covenants of the Purchaser contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by the Purchaser is curable by the Purchaser and the Purchaser is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then the Seller may not terminate this Agreement under this Section 8.1(f) on account of such inaccuracy or breach.
(g) by Xoom or Xenon 2, prior to By the receipt Purchaser if it is not satisfied with the results of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; ordue diligence investigation.
(h) by either NBC or Xenon 2 in Notwithstanding any of the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by foregoing the parties upon may agree to extend to the termination of the Xenon 2 Merger Agreementclosing date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Electric Tractor Corp.), Asset Purchase Agreement (Electric Tractor Corp.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the adoption and approval of this Agreement by the Company’s stockholders):
(a) by the mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC or Xenon 2 by written notice to the other parties Parent if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before such date5:00 p.m. (Eastern Standard Time) on May 31, 2015 (the “End Date”) and any condition set forth in Section 6 has not been satisfied or waived as of the time of termination (in each case other than as a result of any failure on the part of Parent to comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement);
(c) by either NBC the Company if the Closing has not taken place on or Xenon 2 if before 5:00 p.m. (Eastern Standard Time) on the End Date and any condition set forth in Section 7 has not been satisfied or waived as of the time of termination (in each case other than as a result of any failure on the part of the Company to comply with or perform any covenant or obligation of the Company set forth in this Agreement);
(d) by Parent if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Entity of competent jurisdiction shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Entity of competent jurisdiction that would make consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedMerger illegal;
(e) by NBC if the Board Company if: (i) a court of Directors competent jurisdiction or other Governmental Entity of Xoom or Xenon 2 or any committee thereof competent jurisdiction shall have withdrawn issued a final and nonappealable order, decree or modified in a manner adverse ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to NBC its approval or recommendation the Merger by any Governmental Entity of this Agreement, the Xenon 2 Merger Agreement or any competent jurisdiction that would make consummation of the transactions contemplated hereby or therebyMerger illegal;
(f) by NBC if Parent if: (i) any of the Board representations and warranties of Directors the Company contained in this Agreement shall be inaccurate as of Xoom shall have accepted or recommended a Takeover Proposal the date of this Agreement, or shall have resolved become inaccurate as of a date subsequent to do sothe date of this Agreement, such that the condition set forth in Section 6.1 would not be satisfied; or (ii) any of the covenants of the Company contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company is curable by the Company through the use of reasonable efforts within 15 days after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company, during the Company Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period);
(g) by Xoom the Company if: (i) any of Parent’s representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or Xenon 2shall have become inaccurate as of a date subsequent to the date of this Agreement, such that the condition set forth in Section 7.1 would not be satisfied; or (ii) if any of Parent’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts within 15 days after the Company notifies Parent in writing of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 8.1(g) as a result of such inaccuracy or breach prior to the receipt expiration of the Xoom Stockholder ApprovalParent Cure Period, on five business days written noticeprovided Parent, ifduring the Parent Cure Period, Xoom receives, without violating its obligations under continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i8.1(g) determines in good faith and after consultation with a financial advisor of nationally recognized reputation respect to be more favorable such inaccuracy or breach if such inaccuracy or breach is cured prior to the Xoom stockholders than expiration of the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawParent Cure Period; or
(h) by either NBC or Xenon 2 in Parent if Stockholder Written Consents sufficient to obtain the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating Required Stockholder Vote are not delivered to Parent within 24 hours of the execution and delivery of this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Under Armour, Inc.), Merger Agreement (Under Armour, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC BioTime and Xenon 2Geron;
(b) by either NBC or Xenon 2 by written notice to the other parties BioTime if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before such dateSeptember 30, 2013 (other than as a result of any failure on the part of BioTime or BAC to comply with or perform its covenants and obligations under this Agreement);
(c) by either NBC Geron if the Closing has not taken place on or Xenon 2 if (i) any Governmental Authoritybefore September 30, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree 2013 (other than as a temporary restraining order) restraining, enjoining result of any failure on the part of Geron to comply with or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate perform any covenant or obligation set forth in this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingAgreement);
(d) by either NBC BioTime or Xenon 2 Geron, if upon a vote at court of competent jurisdiction or other Governmental Body shall have issued a duly held Xoom Stockholders Meeting final and nonappealable Order, or shall have taken any adjournment thereofother action, having the Xoom Stockholder Approval effect of permanently restraining, enjoining or otherwise prohibiting any of the Transactions; provided, that a party shall not have been obtained be permitted to terminate this Agreement pursuant to this Section 8.1(d) if the issuance of such Order or the taking of such action is attributable to the failure of such party to perform in any material respect any covenant or obligation in this Agreement required to be performed by NBC if upon a vote such party at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, prior to the Xenon 2 Stockholder Approval shall not have been obtainedClosing;
(e) by NBC BioTime, if any of Geron’s representations and warranties contained in this Agreement shall have been inaccurate as of the date of this Agreement or shall have become inaccurate, or if any of Geron’s covenants contained in this Agreement shall have been breached in any respect, in either case if (i) such inaccuracy or breach would cause the conditions in Section 5.1 or Section 5.2 not to be satisfied; and (ii) such inaccuracy or breach (if curable) is not cured by Geron within 30 calendar days after receiving written notice from BioTime of such inaccuracy or breach;
(f) by Geron if any of BioTime’s and BAC’s representations and warranties contained in this Agreement shall have been inaccurate as of the date of this Agreement or shall have become inaccurate, or if any of BioTime’s covenants contained in this Agreement shall have been breached in any respect, in either case if (i) such inaccuracy or breach would cause the conditions in Section 6.1 or Section 6.2 not to be satisfied; and (ii) such inaccuracy or breach (if curable) is not cured by BioTime or BAC within 30 calendar days after receiving written notice from Geron of such inaccuracy or breach;
(g) by BioTime or Geron if: (i) the BioTime Stockholder Meeting (including any adjournments and postponements thereof) shall have been held and completed and the stockholders of BioTime shall have taken a final vote on the BioTime Voting Proposal and the Additional Voting Proposal; and (ii) the BioTime Voting Proposal and the Additional Voting Proposal shall not have obtained the Required BioTime Stockholder Vote; provided, however, that (A) a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(g) if the failure of the BioTime Voting Proposal and the Additional Voting Proposal to be approved by the Required BioTime Stockholder Vote is attributable to a failure on the part of such party to perform in any material respect any covenant or obligation in this Agreement required to be performed by such party at or prior to the Closing; and (B) BioTime shall not be permitted to terminate this Agreement pursuant to this Section 8.1(g) if the failure of the BioTime Voting Proposal and the Additional Voting Proposal to be approved by the Required BioTime Stockholder Vote is attributable to a breach of any of the Support Agreements;
(h) by Geron if (i) the BioTime Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn made a Recommendation Withdrawal, or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or (ii) any of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇, as the transactions contemplated hereby or therebycase may be, shall have materially breached the Support Agreement applicable to him, unless in either case the Required BioTime Stockholder Vote shall have been obtained for the BioTime Voting Proposal and the Additional Voting Proposal prior to such termination;
(fi) by NBC BioTime if the Board of Directors of Xoom there shall have accepted or recommended occurred a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2Geron Material Adverse Effect and such Geron Material Adverse Effect, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured by Geron within 30 calendar days after receiving written notice from BioTime of such breach is given by the non-breaching party.its intent to terminate this Agreement pursuant to this Section 8.1(i); or
(ij) automatically by Geron if there shall have occurred a BioTime Material Adverse Effect and without any action such BioTime Material Adverse Effect, if curable, is not cured by the parties upon the termination BioTime within 30 calendar days after receiving written notice from Geron of the Xenon 2 Merger Agreementits intent to terminate this Agreement pursuant to this Section 8.1(j).
Appears in 2 contracts
Sources: Asset Contribution Agreement (Biotime Inc), Asset Contribution Agreement (Geron Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided PROVIDED that the party terminating this Agreement shall not be in material -------- default or breach hereunder and providedPROVIDED, furtherFURTHER, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided PROVIDED that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and providedPROVIDED, furtherFURTHER, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Contribution, Investment and Merger (General Electric Co), Agreement and Plan of Contribution, Investment and Merger (Xoom Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Alliqua and Xenon 2AquaMed;
(b) by either NBC or Xenon 2 by written notice to the other parties Alliqua if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before such dateJune 10, 2019 (other than as a result of any failure on the part of Alliqua to comply with or perform its covenants and obligations under this Agreement);
(c) by AquaMed if the Closing has not taken place on or before June 10, 2019 (other than as a result of any failure on the part of AquaMed to comply with or perform any covenant or obligation set forth in this Agreement);
(d) by either NBC Alliqua or Xenon 2 AquaMed, if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunctionan Order, orderor shall have taken any other action, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Contribution or the transactions contemplated herebyDistribution; provided, provided that the party seeking a Party shall not be permitted to terminate this Agreement -------- under pursuant to this clause (cSection 7.1(d) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid if the issuance of such order, decree Order or ruling;
(d) the taking of such action is attributable to the failure of such Party to perform in any material respect any covenant or obligation in this Agreement required to be performed by either NBC such Party at or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, prior to the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedClosing;
(e) by NBC Alliqua, if the Board any of Directors of Xoom AquaMed’s covenants or Xenon 2 or any committee thereof representations and warranties contained in this Agreement shall have withdrawn or modified been breached in a manner adverse to NBC its approval or recommendation of this Agreementany material respect, the Xenon 2 Merger Agreement or if (i) such breach would cause any of the transactions contemplated hereby conditions in ARTICLE 2 or therebyARTICLE 3 not to be satisfied; and (ii) such breach (if curable) is not cured by AquaMed within thirty (30) calendar days after receiving written notice from Alliqua of such breach;
(f) by NBC AquaMed if the Board any of Directors of Xoom Alliqua’s covenants or representations and warranties contained in this Agreement shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2been breached in any material respect, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom in either case if (i) determines such inaccuracy or breach would cause the conditions in good faith and after consultation with a financial advisor of nationally recognized reputation ARTICLE 2 or ARTICLE 3 not to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement satisfied; and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default such inaccuracy or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, ) is not cured by Alliqua within 30 thirty (30) calendar days after receiving written notice from AquaMed of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.inaccuracy or breach;
Appears in 2 contracts
Sources: Asset Contribution and Separation Agreement (Adynxx, Inc.), Asset Contribution and Separation Agreement (AquaMed Technologies, Inc.)
Termination Events. Without prejudice By notice given prior to other remedies which may be ------------------ available or at the Closing, subject to the parties by law or this AgreementSection 9.2, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeas follows:
(a) by mutual written consent agreement of NBC Buyer and Xenon 2Parent (each, a “Representative Party”);
(b) by either NBC Representative Party (provided that neither the terminating Representative Party nor any of its Affiliates is then in material breach of any representation, warranty, covenant or Xenon 2 other agreement contained in this Agreement) in the event of a material breach by the other Representative Party or a party Affiliated with the other Representative Party of any representation or warranty contained in this Agreement which cannot be or has not been cured within thirty (30) days after the giving of written notice to other Representative Party of such breach and which breach is reasonably likely, in the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement opinion of the parties heretoterminating Representative Party, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available permit such Representative Party to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure refuse to consummate the transactions contemplated by this Agreement on or before such datein accordance with the terms hereof;
(c) by either NBC or Xenon 2 if Representative Party (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that neither the party seeking to terminate this Agreement -------- under this clause (c) terminating Representative Party nor any of its Affiliates is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) in the event of a material breach by the other Representative Party or a party Affiliated with the other Representative Party of any covenant or agreement contained in this Agreement which cannot be or has not been cured within ten (10) days after the giving of written notice to other Representative Party of such breach and providedwhich breach is reasonably likely, furtherin the opinion of the terminating Representative Party, that to permit such Representative Party to refuse to consummate the right to terminate transactions contemplated by this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid in accordance with the issuance of such order, decree or rulingterms hereof;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or Representative Party in the event (i) any adjournment thereof, Consent of any Governmental Body required for consummation of the Xoom Stockholder Approval transactions contemplated hereby shall not have been obtained denied by final nonappealable action of such authority or if any action taken by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting such authority is not appealed within the time limit for appeal or any adjournment thereof, (ii) the Xenon 2 Stockholder Approval consummation of such transactions shall not have been obtainedpermanently restrained, enjoined or otherwise prohibited by force of law;
(e) by NBC if either Representative Party in the Board of Directors of Xoom or Xenon 2 or any committee thereof event that the Closing shall not have withdrawn or modified in a manner adverse been consummated by January 31, 2006; provided that the failure to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of consummate the transactions contemplated hereby on or thereby;before such date shall not have been caused by any breach of this Agreement by the Representative Party electing to terminate pursuant to this Section 9.1(e) or an Affiliate of such Representative Party; or
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Buyer as provided in Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party6.4(d).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Stewart & Stevenson LLC), Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeas follows:
(a) by mutual written consent of NBC and Xenon 2;
Either Party (bthe “Non-Breaching Party”) by either NBC or Xenon 2 by may terminate this Agreement upon written notice to the other parties Party (the “Breaching Party”) if the transactions contemplated by Breaching Party has materially breached this Agreement and has failed to cure such breach within 30 days of the receipt of notice from the Non-Breaching Party of such breach, or, if such breach is not capable of being cured within 30 days, reasonable good faith efforts have not been consummated performed by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement Breaching Party to remedy such breach (failure to give such notice shall not be in material -------- constitute a waiver of such default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause of any rights or interests arising hereunder); or
(b) shall not be available to any party whose failure to fulfill any obligation under Either Party may terminate this Agreement has been upon written notice to the cause ofother Party, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if if: (i) a substantial portion of any Party’s assets or the conduct of the business of any Party shall be substantially encumbered by extraordinary governmental action or by operation of law, including but not limited to any of the following: the action by any Governmental Authority, quasi-governmental authority, or other entity acting under color of law to (A) condemn, nationalize, seize, expropriate, or assume custody or control of all or a substantial portion of its property or assets or business operations or of its share capital; (B) cause the consent dissolution or approval disestablishment of any Party; (C) prevent any Party or its officers from carrying on its business or operations or a substantial part thereof, including but not limited to the imposition of import or export restrictions which is required for materially impair the consummation ability of any Party to conduct the transactions scope of business contemplated hereby, shall have determined not to grant ; or (D) change the composition of any Party’s board of directors in a manner other than by voluntary action of its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful board; or (ii) any court other Party initiates or is the subject of competent jurisdiction in a winding-up proceeding, a bankruptcy proceeding, or a proceeding for the United States shall have issued appointment of a final and unappealable permanent injunctionjudicial manager, ordersuffers the appointment of a receiver of all or a substantial part of its assets or businesses, judgment or other decree makes an assignment for the benefit of its creditors.
(other than a temporary restraining orderc) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to Corage may at its option terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and providedat any time, furtherfor any or no reason, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if effective upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after least thirty days’ advance written notice of such breach is given by the non-breaching partyto DSPGL.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 2 contracts
Sources: Transition Services Agreement (Ceva Inc), Transition Services Agreement (DSP Group Inc /De/)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the adoption of this Agreement by Target’s stockholders):
(a) by the mutual written consent of NBC Parent and Xenon 2Target;
(b) by either NBC Parent if the Closing has not taken place on or Xenon 2 by written notice before 5:00 p.m. (Pacific time) on June 1, 2013 (other than as a result of any failure on the part of Parent or Merger Sub to the comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement or in any other parties if agreement or instrument delivered to Target in connection with the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateAgreement);
(c) by Target if the Closing has not taken place on or before 5:00 p.m. (Pacific time) on June 1, 2013 (other than as a result of any failure on the part of Target to comply with or perform any covenant or obligation set forth in this Agreement or in any other agreement or instrument delivered to Parent in connection with the transactions contemplated by this Agreement);
(d) by either NBC Parent or Xenon 2 if Target if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Authority shall have issued a final and unappealable permanent injunctionnonappealable Order, orderor shall have taken any other action, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Authority that would make consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedMerger illegal;
(e) by NBC if Parent if, between the Board of Directors of Xoom date hereof and the Closing, an event or Xenon 2 or any committee thereof shall have withdrawn or modified in condition occurs that has a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or therebyMaterial Adverse Effect;
(f) by NBC if Parent if: (i) any of the Board representations and warranties of Directors Target contained in this Agreement shall be inaccurate as of Xoom shall have accepted or recommended a Takeover Proposal the date of this Agreement, or shall have resolved become inaccurate as of a date subsequent to do sothe date of this Agreement, such that the condition set forth in Section 6.1 would not be satisfied; or (ii) any of the covenants of Target or the Stockholders’ Representative contained in this Agreement shall have been breached such that the condition set forth in Section 6.1 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of Target as of a date subsequent to the date of this Agreement or a breach of a covenant by Target or the Stockholders’ Representative is curable through the use of reasonable efforts within 30 days after Parent notifies Target or the Stockholders’ Representative in writing of the existence of such inaccuracy or breach (the “Target Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Target Cure Period, provided Target or the Stockholders’ Representative, during the Target Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Target Cure Period);
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, Target if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom : (i) determines any of Parent’s or Merger Sub’s representations and warranties contained in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on shall be inaccurate as of the advice date of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.or
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
Closing (whether before or after adoption of this Agreement by the Required Company Stockholder Vote): (a) by mutual written consent of NBC Parent and Xenon 2;
the Company; (b) by either NBC Parent or Xenon 2 by written notice to the other parties Company if the transactions contemplated by this Agreement Merger I shall not have not been consummated by December 31February 28, 1999, 2003 (the “Termination Date”) (unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate Merger I is primarily caused by a failure on the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval part of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause to perform any material obligation required to be performed by such party at or prior to the Effective Time of Merger I); (c) is not then in material breach by either Parent or the Company if a court of this Agreement competent jurisdiction or other Governmental Body shall have issued a final and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such nonappealable order, decree or ruling;
, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting either Merger; (d) by either NBC Parent or Xenon 2 the Company if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith the Company Stockholders’ Meeting (including any adjournments and after consultation with postponements thereof) shall have been held and the Company’s stockholders shall have taken a financial advisor of nationally recognized reputation final vote on a proposal to be more favorable to the Xoom stockholders than the transactions contemplated by adopt this Agreement and (ii) concludes in good faith based this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Vote; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d) if the failure to have this Agreement adopted by the Required Company Stockholder Vote is attributable to a failure on the advice part of outside legal counsel that termination such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Effective Time of Merger I; (e) by Parent (at any time prior to the adoption of this Agreement is required to comply with its fiduciary duties under applicable lawby the Required Company Stockholder Vote) if a Triggering Event shall have occurred; or
(hf) by either NBC or Xenon 2 Parent if (i) any of the Company’s representations and warranties contained in this Agreement shall be inaccurate as of the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (yas if made on such subsequent date) Xoom except for those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been accurate as of such date), such that the condition set forth in Section 7.1 would not be satisfied or Xenon 2(ii) any of the Company’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, where NBC however, that if such inaccuracy in the Company’s representations and warranties or a breach of a covenant by the Company is terminating curable by the Company through the exercise of commercially reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement, in each case which default Agreement under this Section 9.1(f) on account of such inaccuracy or breach is not curable, or if curable, is not cured within 30 days after until the earlier of (A) the expiration of a fourteen (14) day period commencing upon delivery of written notice from Parent to the Company of such breach is given or inaccuracy and (B) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(f) as a result of such particular breach or inaccuracy if such breach by the non-breaching party.
(i) automatically and without any action by the parties upon the Company is cured prior to such termination of the Xenon 2 Merger Agreement.becoming effective); or
Appears in 1 contract
Sources: Merger Agreement
Termination Events. Without prejudice to other remedies which (a) For purposes of this Article X, T-Mobile and Purchaser will be treated as a single Party and Cingular and SBCW will be treated as a single Party. This Agreement may be ------------------ available terminated by any Party ("TERMINATING PARTY") hereto at any time prior to Closing, upon written notice to the parties by law other Party hereto ("OTHER PARTY"), upon the occurrence of any of the following events:
(i) the Bankruptcy of T-Mobile or this Agreementany entity that, directly or indirectly Controls T-Mobile or Purchaser (in which case this Agreement may be terminated and by Cingular or SBCW) or the transactions contemplated herein Bankruptcy of Cingular or any entity that directly or indirectly Controls Cingular or SBCW (in which case this Agreement may be abandoned at any time prior to the Effective Time:
(a) terminated by mutual written consent of NBC and Xenon 2T-Mobile or Purchaser);
(bii) by either NBC the Other Party shall materially breach any of its representations, warranties or Xenon 2 by written notice to the other parties if the transactions contemplated by covenants contained in this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement and (i) such breach shall not be in material -------- default capable of being remedied within sixty (60) days after the occurrence of such breach or (ii) a written notice specifying the nature of such breach hereunder and provided, further, requesting that it be remedied is given by the right Terminating Party to terminate --------- ------- this Agreement under this clause (b) the Other Party and such breach shall not have been remedied within sixty (60) days after the occurrence of such breach, except that T-Mobile shall have no right of termination with regard to such breach of Cingular's or SBCW's representations, warranties and covenants where such breach(es) can be available cured or satisfied by a claim for damages or other action to any party whose failure be reasonably taken by SBCW or Cingular following the Closing, pursuant to fulfill any obligation under this Agreement has been the cause of, Section 7.2 or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date7.6 hereof;
(c) by either NBC or Xenon 2 if (iiii) any consent of any Governmental Authority, the consent or approval of which is Body required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination hereby shall have been taken denied by final action of such Governmental Body that is either nonappealable or which has not been appealed within the time limit for appeal; CINGULAR WIRELESS LLC EXHIBITS - Interest Purchase Agreement by and have been unsuccessful or among T-Mobile USA, Inc., Omnipoint Communications, Inc., Cingular Wireless LLC and SBC Wireless LLC dated as of May 24, 2004. EXHIBIT 10.66
(iiiv) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment Law or other decree (other than a temporary restraining order) Order permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate by this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom Ancillary Agreements shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith become final and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawnonappealable; or
(hv) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 AWE Merger Agreement.
Appears in 1 contract
Sources: Interest Purchase Agreement (Cingular Wireless LLC)
Termination Events. Without prejudice The Agreement may, by notice given prior to or at the Closing, be terminated as follows:
(a) Upon the mutual written consent of Group and Group Subsidiary on the one hand and the ProMed Parties on the other remedies which may be ------------------ available to the parties by law or this Agreementhand, this Agreement may be terminated on such terms and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;conditions as agreed; or
(b) by either NBC or Xenon 2 by By written notice of Group and Group Subsidiary on the one hand to the ProMed Parties on the other parties hand if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement ProMed Pomona or any of the parties hereto, provided that Principal ProMed Shareholders breaches in any material respect any of its representations or warranties or defaults in any material respect in the party terminating this Agreement observance or in the due and timely performance of any of its covenants or agreements herein contained and such breach or default shall not be in material -------- cured prior to the earlier of the Closing Date or 30 days of the date of notice of breach or default served by Group or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;Group Subsidiary; or
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation By written notice of the transactions contemplated hereby, ProMed Parties on the one hand to Group and Group Subsidiary on the other hand if Group or Group Subsidiary breaches in any material respect any of its representations or warranties or defaults in any material respect in the observance or in the due and timely performance of any of its covenants or agreements herein contained and such breach or default shall have determined not be cured prior to grant its consent the earlier of the Closing Date or approval 30 days of the date of notice of breach or default served by the ProMed Parties; or
(d) By written notice of Group and all appeals of such determination shall have been taken Group Subsidiary to the ProMed Parties or by the ProMed Parties to Group and have been unsuccessful or (ii) Group Subsidiary if any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, any order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) action restraining, enjoining or otherwise prohibiting the contemplated transactions; or
(e) By written notice of Group and Group Subsidiary to the ProMed Parties, or by the ProMed Parties to Group and Group Subsidiary, if any court, legislative body or governmental or regulatory authority has taken, or is reasonably expected to take, any action that would make the consummation of the transactions contemplated hereby, provided that hereby inadvisable or undesirable as determined by Group or the party seeking to terminate this Agreement -------- under this clause (c) is not then ProMed Parties in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;sole discretion; or
(f) by NBC By written notice of Group and Group Subsidiary to the ProMed Parties if it shall become apparent in the Board judgment of Directors of Xoom shall have accepted Group and Group Subsidiary reasonably exercised that any condition to Group’s or recommended a Takeover Proposal or shall have resolved Group Subsidiary’s obligation to do so;close as set forth in Article 6 hereof will not be satisfied before the Closing Date; or
(g) by Xoom or Xenon 2, prior By written notice of the ProMed Parties to Group and Group Subsidiary if it shall become apparent in the judgment of the ProMed Parties reasonably exercised that any condition to the receipt of ProMed Parties’ obligation to close as set forth in Article 6 hereof will not be satisfied before the Xoom Stockholder ApprovalClosing Date Notwithstanding the foregoing, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, no party hereto may effect a bona fide Takeover ----------- Proposal from a third termination hereof at such time such party on terms which the Board of Directors of Xoom (i) determines is in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating of this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Prospect Medical Holdings Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to The employment hereunder will terminate upon the parties by law or this Agreement, this Agreement may be terminated and occurrence of any of the transactions contemplated herein may be abandoned at any time prior to following events (“the Effective Time:Termination Event”):
(a) by mutual written consent of NBC and Xenon 2;Employee dies; or
(b) by either NBC or Xenon 2 The Company, by written notice to Employee or his personal representative, discharges Employee due to the inability to continue to perform the duties previously assigned to him hereunder prior to such injury, illness or disability for a continuous period exceeding 90 days or 180 out of 360 days by reason of injury, physical or mental illness or other parties if disability, which condition has been certified by a physician reasonably acceptable to the transactions contemplated by this Agreement have not been consummated by December 31Company; provided, 1999however, unless extended by that prior to discharging Employee due to such disability, the Company shall give a written agreement statement of findings to Employee or his personal representative setting forth specifically the nature of the parties heretodisability and the resulting performance failures, provided that and Employee shall have a period of thirty (30) days thereafter to respond in writing to the party terminating this Agreement Company’s findings, whereupon the Company shall not be in material -------- default or breach hereunder conduct a reasonable and provided, further, that fair hearing with the right Employee and any supporting witnesses and evidence for the Employee to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;reach a final determination; or
(c) Employee is discharged by either NBC or Xenon 2 if the Company for “Cause”. As used in this Agreement, the term “Cause” shall mean:
(i) Employee’s final and unappealed conviction of (or pleading guilty or “nolo contendere” to) any Governmental Authorityfelony or a major misdemeanor involving dishonesty or moral turpitude; provided, however, that prior to discharging Employee for Cause, the consent or approval Company shall give a written statement of findings to Employee setting forth specifically the grounds on which Cause is required for the consummation of the transactions contemplated herebybased, and Employee shall have determined not a period of ten (10) days thereafter to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or respond in writing to the Company’s findings; or
(ii) any court The Employee’s (1) unreasonable failure to perform his duties, as determined by the Board of competent jurisdiction in Directors, or (2) substantial and material breach of, or default under, this Agreement or the United States shall have issued a final Proprietary Information and unappealable permanent injunction, order, judgment or other decree Invention Assignment Agreement (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation as defined herein). The unreasonable failure of the transactions contemplated herebyCompany, provided that as determined by the party seeking Board of Directors, to meet reasonable sales and product development benchmarks, as may be agreed to from time to time by the Employee and the Board of Directions. In the case of any of the conditions set forth in this Section 5.1(c)(ii), the Employee shall be given written notice of the intent of the Board of Directors to terminate this Agreement -------- the Employee’s employment under this clause paragraph, and shall be permitted thirty (c30) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance days from receipt of such order, decree written notice to promptly cure any such breach or ruling;default to the reasonable satisfaction of the Board of Directors.
(d) Employee is discharged by either NBC Company other than in accordance with Section 5.1(a)-(c) (a termination “without Cause”), which the Company may do at any time, with at least thirty (30) days advance written notice, subject to the full performance of the obligations of the Company to the Employee pursuant to Section 4 or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereofSection 5.2, as the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;case may be; or
(e) Employee voluntarily terminates his employment due to “Good Reason”, which shall mean (i) a material default by NBC if the Company in the performance of any of its obligations hereunder, which default remains uncured by the Company for a period of thirty (30) days following receipt of written notice thereof to the Company from Employee; (ii) a material diminution of the roles, responsibilities or duties and/or the position, title or authority of Employee hereunder; or (iii) a requirement that Employee report to any person(s) other than the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any Chairman of the transactions contemplated hereby or thereby;Board; or
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to Employee voluntarily terminates his employment without Good Reason, which Employee may do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation at any time with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within at least 30 days after written notice of such breach is given by the non-breaching partyadvance notice.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual either Purchaser or the Company if the Closing has not occurred on or before December 31, 2017 (the “Outside Date”) on the Business Day following delivery of written consent notice thereof to the other parties hereto; provided, that neither Purchaser nor the Company shall be entitled to terminate this Agreement pursuant to this Section 9.1(a) if such Person’s willful breach of NBC this Agreement has prevented the consummation of the Transactions as of such date; provided, further that either the Purchaser or the Company may at its election provide that the Outside Date shall be extended until January 14, 2018 by sending written notice to the other party on or after the Outside Date, and Xenon 2such extension shall supersede any notice sent by the other party to terminate this Agreement on the same date;
(b) by mutual written consent of the Company and the Purchaser;
(c) by either NBC the Purchaser or Xenon 2 the Company if a Governmental Entity shall have (i) issued a non-appealable final judgment, order, writ, injunction, decree, stipulation, ruling, decision, verdict, determination, agreement or award (“Order”), or (ii) enacted, enforced or deemed applicable to the Transactions a Law in final form, in each case having the effect of permanently restraining, enjoining, prohibiting or making illegal the consummation of the Transactions (provided, however, that the Party seeking to terminate pursuant to this Section 9.1(c) shall have used commercially reasonable efforts to have any such Order or other action vacated or lifted and shall not be in breach in any material respect of any of its obligations hereunder);
(d) by the Purchaser: (i) upon a breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement such that the conditions set forth in Section 7.2(a), Section 7.2(b), Section 7.2(c) or Section 7.2(d) would not be satisfied (a “Seller Terminating Breach”); provided, however, that if such Seller Terminating Breach is curable prior to the expiration of thirty (30) days from the date of written notice to the other parties if Company of its occurrence through the transactions contemplated by exercise of the Company’s commercially reasonable efforts, and for so long as the Company continues to exercise such commercially reasonable efforts, the Purchaser may not terminate this Agreement have not under this Section 9.1(d) until the expiration of such thirty (30) day period without such Seller Terminating Breach having been consummated by December 31, 1999, unless cured (but in no event shall the preceding proviso be deemed to extend the Outside Date (as such may be extended by written agreement pursuant to Section 9.1(a)) set forth in Section 9.1(a)); or (ii) if satisfaction of any of the parties hereto, provided that conditions set forth in Section 7.2 is or becomes impossible (other than through the party terminating failure of the Purchaser to comply with its obligations under this Agreement shall not be in material -------- default or breach hereunder and Agreement); provided, further, that the right Purchaser shall not be entitled to terminate --------- ------- this Agreement pursuant to this clause Section 9.1(d) at any time during which the Purchaser would be unable to satisfy the conditions in Section 7.3(a) or Section 7.3(b) hereof; or
(e) by the Company: (i) upon a breach of any representation, warranty, covenant or agreement of the Purchaser or Merger Sub set forth in this Agreement such that the conditions set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied (a “Purchaser Terminating Breach”); provided, however, that if such Purchaser Terminating Breach is curable prior to the expiration of thirty (30) days from the date of written notice to the Purchaser of its occurrence through the exercise of the Purchaser’s commercially reasonable efforts, and for so long as the Purchaser continues to exercise such commercially reasonable efforts, the Company may not terminate this Agreement under this clause Section 9.1(e) until the expiration of such thirty (b30) day period without such Purchaser Terminating Breach having been cured (but in no event shall the preceding proviso be deemed to extend the Outside Date (as such may be extended pursuant to Section 9.1(a)) set forth in Section 9.1(a)); or (ii) if satisfaction of any of the conditions set forth in Section 7.3 is or becomes impossible (other than through the failure of the Company to comply with its obligations under this Agreement); provided, further, that the Company shall not be available entitled to any party whose failure to fulfill any obligation under terminate this Agreement has pursuant to this Section 9.1(e) at any time during which the Company would be unable to satisfy the conditions in Section 7.2(a), Section 7.2(b), Section 7.2(c) and Section 7.2(d) hereof.
(f) by the Company, if prior to the Outside Date (i) the conditions set forth in Sections 7.1 and 7.2 have been satisfied as of such date (other than those conditions that by their nature are to be satisfied at the cause ofClosing that would be satisfied at a Closing as of such date) or have been waived in writing by the Purchaser, or resulted in(ii) the Company is ready, the failure willing and able to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, at the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval Closing and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction has irrevocably certified thereto in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior writing to the receipt of Purchaser, and (iii) the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Purchaser fails to complete the Closing within three (3) Business Days following the date the Closing should have occurred pursuant to Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable 1.7 due to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given failure by the non-breaching partyDebt Financing Source to fund for any reason the Debt Financing.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Diplomat Pharmacy, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available At any time prior to the parties by law or this AgreementClosing, this Agreement may be terminated and the transactions contemplated herein may be Share Purchase abandoned at any time prior to by authorized action taken by the Effective Timeterminating party:
(a) by mutual written consent of NBC by A▇▇▇▇▇▇▇ and Xenon 2;the Sellers; or
(b) by either NBC Acquirer or Xenon 2 the Sellers by written notice to the other parties party, if the transactions contemplated by Closing shall not have occurred on or before the date that is 120 days after the date of this Agreement have not been consummated by December 31, 1999, unless (as may be extended by mutual written agreement of consent, the parties hereto“End Date”); provided, provided however, that the party terminating this Agreement a Party shall not be permitted to terminate this Agreement pursuant to this Section 10.1(b) if the failure to consummate the Share Purchase by the End Date is primarily attributable to a failure on the part of such Party to perform any covenant in material -------- default this Agreement required to be performed by such Party at or breach hereunder prior to the C▇▇▇▇▇▇.▇▇ either Acquirer or the Sellers by written notice to the other Party, if any permanent injunction or other order of a Governmental Authority restraining, enjoining or otherwise preventing the consummation of the Share Purchase shall have become final and non-appealable; provided, furtherhowever, that the right to terminate --------- ------- this Agreement under this clause (b) a Party shall not be available permitted to any party terminate this Agreement pursuant to this Section 10.1(c) (i) if such Party did not use reasonable best efforts to have such order vacated prior to its becoming final and non-appealable or (ii) whose failure to fulfill any obligation under this Agreement has shall have been the a material cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before occurrence of such date;order; or
(c) by either NBC Acquirer, by written notice to the Sellers, if the Company or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, Seller shall have determined not to grant its consent materially breached any representation, warranty, covenant or approval agreement contained herein and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid been cured within thirty (30) days after receipt by the issuance Sellers from Acquirer of written notice of such orderbreach; provided, decree however, that no such cure period shall be available or ruling;applicable to any such breach which by its nature cannot be cured) and if not cured within the timeframe above and at or prior to the Closing, such breach would result in the failure of any of the conditions set forth in Article 9 to be satisfied; or
(d) by either NBC the Sellers, by written notice to Acquirer, if Acquirer shall have materially breached any representation, warranty, covenant or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval agreement contained herein and such material breach shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 thirty (30) days after receipt by Acquirer from the Sellers of written notice of such breach; provided, however, that no such cure period shall be available or applicable to any such breach is given which by its nature cannot be cured, and if not cured within the non-breaching party.
(i) automatically timeframe above and without at or prior to the Closing, such breach would result in the failure of any action by the parties upon the termination of the Xenon 2 Merger Agreementconditions set forth in Article 8 to be satisfied.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available Notwithstanding anything herein or elsewhere to the parties by law or this Agreementcontrary, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned as follows:
(a) At any time prior to the Effective Time, by the mutual consent of the Acquiror and the Company.
(b) By either Acquiror or the Company, at any time prior to the Effective Time:
, by action of the board of directors of either Acquiror or the Company if (ai) by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement Merger shall not have not been consummated by December 31, 19992004, unless extended whether such date is before or after the date of approval by written agreement the shareholders of the parties hereto, provided that Company (the party terminating this Agreement shall not be in material -------- default or breach hereunder and "Termination Date"); provided, furtherhowever, that the right to terminate --------- ------- this Agreement under pursuant to this clause (b) Section 7.01 shall not be available to any party whose failure to fulfill perform any obligation of its obligations under this Agreement has primarily contributes to the failure of the Merger to be consummated by such time; provided, further, that the Termination Date may be extended not more than sixty days by either party by written notice to the other party if the Merger shall not have been consummated as a direct result of the cause ofcondition set forth in Section 6.01(b) failing to have been satisfied and the extending party reasonably believes that the relevant approvals will be obtained during such extension period, or resulted inits board of directors determines by majority vote that, the failure to consummate the transactions contemplated by this Agreement on any statute, law, rule or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for regulation shall have been promulgated that prohibits the consummation of the transactions contemplated hereby, shall have determined not to grant its consent Merger or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) if any court Governmental Authority of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, an order, judgment decree or ruling or taken any other action (which order, decree or ruling or other decree (other than a temporary restraining order) action each party hereto shall use its reasonable best efforts to have vacated or reversed in accordance with Section 5.02), in each case restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-appealable or (iii) in the case of the Company, an event or circumstance exists that results in any representation or warranty of Acquiror or Acquiror Sub contained in this Agreement being untrue which would result in a failure of a condition set forth in Sections 6.02(a), 6.02(b) or 6.02(c) and which cannot be cured or has not been cured by the earlier of (A) twenty Business Days after the giving of written notice to Acquiror of such event, circumstance or breach and (B) the Termination Date or, in the case of the Acquiror, an event or circumstance exists that results in any representation or warranty of the Company or any of its Subsidiaries contained in this Agreement being untrue which would result in a failure of a condition set forth in Sections 6.03(a), 6.03(b) or 6.03(c) and which cannot be cured or has not been cured by the earlier of (A) twenty Business Days after the giving of written notice to the Company of such event, circumstance or breach and (B) the Termination Date.
(c) By the Acquiror if the Company, in accordance with applicable law, applicable stock exchange rules, the Company Articles and the Company By-Laws, has not taken all action reasonably necessary to convene the Company Meeting at least ten Business Days prior to the Termination Date; provided, however, that the Acquiror may not utilize the provision of this Section 7.01(c) if the Georgia Insurance, Safety and Fire Commissioner has issued an order restricting distribution of the Proxy Statement which has not been vacated, withdrawn, rescinded or otherwise become of no effect at least forty-five days prior to the Termination Date.
(d) By the Company, prior to the Effective Time, by action of the Company Board if (i) the Company has complied with its obligations under Section 5.07 and the Company has given Acquiror prior written notice, of not less than the greater of seventy-two hours and two Business Days, of its intention to terminate this Agreement and accept or recommend a Superior Proposal and of the material terms and conditions of such Superior Proposal, provided that the termination described in this Section 7.01(d) shall not be effective unless and until the Company shall have paid to Acquiror the amounts specified in Section 7.03; (ii) concludes Acquiror or Acquiror Sub has taken any action (or failed to take any action) which would result in good faith based on a failure of a condition set forth in Sections 6.02(a), 6.02(b) or 6.02(c) and which cannot be cured or has not been cured by the advice earlier of outside legal counsel that termination (A) twenty Business Days after the giving of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice to Acquiror of such breach is given and (B) the Business Day immediately prior to Termination Date; or (iii) CMIC takes any action (or fails to take action) which results in the closing conditions set forth in the in the Alliance Agreement not being satisfied which cannot be cured or has not been cured by the non-breaching partyearlier of (A) twenty Business Days after the giving of written notice to Acquiror of such breach and (B) the Business Day immediately prior to Termination Date.
(e) By the Acquiror, prior to the Effective Time, by action of its board of directors if (i) automatically the Company breaches any of its covenants in Section 5.07 or the Company has taken (or the Company Board shall have resolved to effect) any of the actions referred to in the first paragraph of Section 5.07; (ii) the Company Board fails to recommend that the shareholders of the Company approve this Agreement and without any other matters required to be approved by the Company's shareholders for consummation of the Merger and the transactions contemplated hereby or a Change in Recommendation has occurred; (iii) the Company or any of its Subsidiaries has taken any action (or failed to take any action) which would result in a failure of a condition set forth in Sections 6.03(a), 6.03(b) or 6.03(c) and which cannot be cured or has not been cured by the parties upon earlier of (A) twenty Business Days after the termination giving of written notice to the Xenon 2 Merger AgreementCompany of such breach and (B) the Business Day immediately prior to the Termination Date; or (iv) CSMIC or Shield takes any action (or fails to take action) which results in the closing conditions set forth in the Alliance Agreement not being satisfied which cannot be cured or has not been cured by the earlier of (A) twenty Business Days after the giving of written notice to Acquiror of such breach and (B) the Business Day immediately prior to Termination Date.
Appears in 1 contract
Sources: Merger Agreement (Cotton States Life Insurance Co /)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time, whether before or after the Company Shareholder Approval or the Parent Shareholder Approval:
(a) by mutual written consent of NBC the Company and Xenon 2Parent;
(b) by either NBC Parent or Xenon 2 by written notice to Company, if:
(i) the Merger and the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
August 31, 2017 (c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and “End Date”); provided, further, that the right to terminate this Agreement under pursuant to this clause -------- ------- (cSection 9.1(b)(i) shall not be available to any party who shall not have used reasonable commercial efforts Party whose failure to avoid fulfill in any material respect any of its obligations under this Agreement has been the issuance primary cause of, or the primary factor that resulted in, the failure of the Merger and the other transactions contemplated by this Agreement to be consummated by such order, decree or rulingtime;
(dii) there shall be any applicable Legal Requirement that (A) makes consummation of the Merger and the other transactions contemplated by either NBC this Agreement illegal or Xenon 2 if upon otherwise prohibited; or (B) enjoins a vote at a duly held Xoom Stockholders Meeting or any adjournment thereofParty from consummating the Merger and the other transactions contemplated by this Agreement and such enjoinment shall have become final and nonappealable; provided, that, the Xoom Stockholder Party seeking to terminate this Agreement pursuant to this Section 9.1(b)(ii) shall have used its reasonable efforts to contest, appeal and remove such judgment, order, injunction, rule, decree, ruling or other action in accordance with Section 3.8.
(iii) Parent’s board of directors shall have made a Parent Adverse Recommendation Change;
(iv) the Parent Shareholder Approval shall not have been obtained at a meeting of the Parent shareholders duly convened therefor or by NBC if upon at any adjournment or postponement thereof at which a vote at was taken in an effort to obtain the Parent Shareholder Approval; provided, that, Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b)(iv) if the failure to obtain such Parent Shareholder approval is primarily caused by any action or failure of Parent that constitutes a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, beach of this Agreement;
(v) the Xenon 2 Stockholder Company’s Board shall have made a Company Adverse Recommendation Change;
(vi) the Company Shareholder Approval shall not have been obtained;
(eobtained at a meeting of the Company Shareholders duly convened therefor or at any adjournment or postponement thereof at which a vote was taken in an effort to obtain the Company Shareholder Approval; provided, that, the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b)(vi) by NBC if the Board failure to obtain such Company Shareholder approval is primarily caused by any action or failure of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in the Company that constitutes a manner adverse to NBC its approval or recommendation beach of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(hc) by either NBC Parent, if:
(i) a material breach by Company (directly or Xenon 2 in indirectly, through any subsidiaries, directors, officers, Business Employees, agents or representatives of the event Company) of Section 3.5(a) or Section 3.10 shall have occurred;
(ii) there has been a material default or breach by (x) NBCthe Company of any representation, where Xenon 2 is terminating warranty, covenant or agreement contained in this AgreementAgreement that has prevented or would prevent the satisfaction of any condition to the obligations of Parent at the Closing and such breach has not been waived by Parent in writing or, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not to the extent curable, cured by the Company within ten (10) Business Days after receipt by the Company or if curable, is not cured within 30 days after the Shareholders’ Representative of written notice thereof from Parent;
(iii) at the time of termination holders of more than five percent (5%) of the outstanding Company Shares have validly exercised their dissenters’ rights in accordance with the Dissenters’ Rights Rules (and not withdrawn such breach is given exercise or otherwise become ineligible to effect such exercise) in respect of the Merger; or
(iv) a Material Adverse Effect with respect to the Company has occurred and cannot be cured by the non-breaching party.Company within ten (10) Business Days after receipt by Parent of written notice thereof from the Company or the Shareholders’ Representative; or
(v) Parent does not accept updated Disclosure Schedules provided by the Company pursuant to Section 12.11(c); or
(d) by Company, if:
(i) automatically a material breach by Parent (directly or indirectly, through any subsidiaries, directors, officers, Business Employees, agents or representatives of Parent) of Section 3.5(b) or Section 3.11 shall have occurred;
(ii) there has been a material breach by Parent or the Merger Sub of any representation, warranty, covenant or agreement contained in this Agreement that has prevented or would prevent the satisfaction of any condition to the obligations of the Company at the Closing and without any action such breach has not been waived by the parties upon Company or, to the termination extent curable, cured by Parent within ten (10) Business Days after receipt by Parent of written notice thereof by the Xenon 2 Merger AgreementCompany;
(iii) if a Material Adverse Effect with respect to Parent and/or MergerSub has occurred and cannot be cured by Parent within ten (10) Business Days days after receipt by the Company of written notice thereof from Parent; or
(iv) the Company does not accept updated Disclosure Schedules provided by Parent pursuant to Section 12.11(c). The Party desiring to terminate this Agreement pursuant to this Section 9.1 shall give written notice to the other Parties.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which that may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) mutually, by mutual the written consent of NBC the Company and Xenon 2a Majority in Interest of the Investors;
(b) by either NBC the Company or Xenon 2 a Majority in Interest of the Investors by giving written notice to the other party or parties if the transactions contemplated by this Agreement Closing shall not have not been consummated by December occurred prior to August 31, 19992003, unless extended by written agreement of the parties heretosuch parties; provided, provided however, that the party terminating seeking termination pursuant to this Agreement shall subsection (b) is not be in material -------- default or material breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause subsection (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such date;
(c) by either NBC the Company or Xenon 2 a Majority in Interest of the Investors by giving written notice to the other party or parties if (i) any Governmental Authority, the consent governmental entity shall have issued an injunction or approval of which is required for other ruling prohibiting the consummation of any of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of by this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) such injunction or other ruling shall not be available subject to any party who appeal or shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingbecome final and unappealable;
(d) by either NBC the Company or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, Majority in Interest of the Xoom Investors in the event that the Required Stockholder Approval shall is not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedStockholders’ Meeting;
(e) by NBC either the Company or a Majority in Interest of the Investors, if (i) the Company shall have entered into an agreement to consummate a Superior Proposal, (ii) the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn recommended to the stockholders of the Company a Superior Proposal or (iii) the Board of Directors shall have withdrawn, modified or qualified in a any manner adverse to NBC its approval the Investors or recommendation made any public statement inconsistent with the Company Recommendation; provided, however, that, in order for the termination of this AgreementAgreement by the Company pursuant to this clause (e) to be deemed effective, the Xenon 2 Merger Agreement or any Company shall have complied with all provisions of the transactions contemplated hereby or therebySections 8.7 and 8.8;
(f) by NBC a Majority in Interest of the Investors, if (i) the Board of Directors of Xoom Company shall have accepted materially breached any covenant or recommended obligation in this Agreement and such breach is not cured within ten (10) business days of the date of the delivery to the Company by an Investor of a Takeover Proposal written notice of such breach or (ii) any of the Company’s representations and warranties contained in this Agreement shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 5.1 would not be satisfied as of such date and such breach is not cured within thirty (30) days of the date of the delivery to the Company by an Investor of a written notice of such breach; or
(g) by Xoom a Majority in Interest of the Investors, if there shall have occurred an event or Xenon 2events which, prior individually or in the aggregate, constitute a Material Adverse Effect on the Company and such Material Adverse Effect on the Company continues for at least thirty (30) days after the date of delivery to the receipt Company by an Investor of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by Material Adverse Effect on the non-breaching partyCompany.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Rigel Pharmaceuticals Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties This Agreement may, by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time notice given prior to or at the Effective TimeClosing, be terminated:
(a) by mutual written consent of NBC and Xenon 2;
(bi) by either NBC MTNO or Xenon 2 by written notice to D&SE if the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued committed a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of any provision of this Agreement and providedsuch breach has not been waived;
(ii) by MTNO if any of the conditions in Section 8 have not been satisfied as of the time of Closing or if satisfaction of such a condition is or becomes impossible (other than through the failure of MTNO to comply with its obligations under this Agreement) and MTNO has not waived such condition on or before the Closing;
(iii) by D&SE, furtherif any of the conditions in Section 9 has not been satisfied at the Closing or if satisfaction of such a condition is or becomes impossible (other than through the failure of D&SE to comply with their obligations under this Agreement) and D&SE has not waived such condition on or before the Closing;
(iv) by mutual consent of MTNO and D&SE; or
(v) By either party to this Agreement in the event the Closing does not occur on before the expiration of sixty (60) days from the date hereof, that time being of the essence with respect thereto. In the event the Closing does not occur within such period solely as a result of MTNO's failure or refusal to close and not as a result of Force Majeure or D&SE's default, then in such event, D&SE shall have the right to retain the Deposit as its liquidated damages and not as a penalty, which damages would be otherwise difficult or impossible to determine with precision. The Escrow Agent shall pay same to D&SE as provided in the Escrow Deposit Agreement, whereupon, the parties hereto shall have no further obligation to the other and this Agreement shall have no further force and effect. In the event MTNO or D&SE shall elect to terminate this Agreement under the provisions of this clause -------- ------- (csubparagraph 13(a)(v) for any reason other than MTNO's failure or refusal to close as heretofore provided, then in such event, upon the return of the Deposit to MTNO, this Agreement shall not be available to any of no further force and effect and no party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof hereto shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior further liability to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyother.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which (a) Bidder may be ------------------ available to the parties by law or terminate this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned agreement at any time prior by notice in writing to the Effective TimeTarget:
(ai) if:
(A) Target is in breach of any clause of this agreement (including any Target Warranty), which breach is material in the context of the Bid, or if a Prescribed Occurrence occurs. The parties agree that any breach of clause 6 will be taken to be material as will any breach of the agreement which has resulted or will result in a Condition being breached or not satisfied or becoming incapable of satisfaction;
(B) Bidder has given notice to Target setting out the relevant circumstances and stating an intention to terminate this agreement; and
(C) the relevant circumstances have not been rectified (if capable of being rectified), and/or the activity that caused them has not ceased to the reasonable satisfaction of Bidder, within, in the case of a breach of clause 6, one Business Day from the time such notice is given, and, in any other case, five Business Days from the time such notice is given;
(ii) if a Competing Transaction is publicly proposed by mutual written consent a person other than Bidder (or one of NBC its Related Bodies Corporate) and Xenon 2is recommended by any Independent Director;
(iii) if a person other than Bidder or one of its Related Bodies Corporate that does not hold 10% or more Voting Power in Target at the date of this agreement obtains Voting Power in Target of 10% or more;
(iv) if any Independent Director fails to make or withdraws, changes, revises, revokes or qualifies, or makes a public statement inconsistent with, the Recommendation or makes a public statement indicating that they no longer recommend or intend to accept the Offer; or
(v) if any Independent Director recommends, endorses or otherwise supports a Competing Transaction.
(b) Target may terminate this agreement at any time by either NBC or Xenon 2 by written notice in writing to Bidder:
(i) if:
(A) Bidder is in breach of any clause of this agreement (including any Bidder Warranty), which breach is material in the context of the Bid;
(B) Target has given notice to Bidder setting out the other parties if material breach and stating an intention to terminate this agreement; and
(C) the transactions contemplated by this Agreement have material breach has not been consummated by December 31rectified (if capable of being rectified) and/or the activity that caused the material breach has not ceased to the reasonable satisfaction of Target, 1999, unless extended by written agreement within five Business Days from the time such notice is given; or
(ii) if each Independent Director withdraws his or her recommendation of the parties hereto, provided that the party terminating this Agreement shall not be Offer in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this accordance with clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;2.2(b).
(c) Either Bidder or Target may terminate this agreement at any time by either NBC or Xenon 2 notice in writing to the other parties, if the Offer lapses for any reason (i) any Governmental Authorityprovided, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunctioncase of termination by Bidder, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material occurred without breach by Bidder of this Agreement and providedagreement) including non-satisfaction of a Condition, further, that or at any time after the right to terminate date 6 months after the date of this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;agreement.
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based This agreement automatically terminates on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyOffer Close Date.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (General Finance CORP)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Parent and Xenon 2Purchaser, on the one hand, and the Company, on the other;
(b) by either NBC Parent and Purchaser, on the one hand, or Xenon 2 by written notice to the other parties Company, on the other, if the transactions contemplated by this Agreement have Closing has not been consummated by December 31taken place on or before 5:00 p.m. (Pacific time) on October 1, 19992021 (the “End Date”); provided, unless extended by written agreement of the parties heretohowever, provided that the party terminating this Agreement (i) Parent and Purchaser shall not be in material -------- default or breach hereunder and provided, further, that the right permitted to terminate --------- ------- this Agreement under pursuant to this clause Section 10.1(b) if (bA) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on by the End Date results from, or before is caused by, a material breach by Parent and Purchaser of any of their representations, warranties, covenants or agreements contained herein or (B) the Company is seeking through a Legal Proceeding to specifically enforce this Agreement in accordance with Section 12.10 while any such dateLegal Proceeding is still pending and (ii) the Company shall not be permitted to terminate this Agreement pursuant to this Section 10.1(b) if (x) the failure to consummate the transactions contemplated by this Agreement by the End Date results from, or is caused by, a material breach by the Company or the Selling Shareholders of any of their respective representations, warranties, covenants or agreements contained herein or (y) Parent and Purchaser are seeking through a Legal Proceeding to specifically enforce this Agreement in accordance with Section 12.10 while any such Legal Proceeding is still pending;
(c) by either NBC Parent and Purchaser, on the one hand, or Xenon 2 the Company, on the other, if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunctionnonappealable Order, orderor shall have taken any other action, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided by this Agreement such that the party seeking conditions set forth in Section 8.3 and Section 9.3 would not be satisfied; provided, however, a Party shall not be permitted to terminate this Agreement -------- under pursuant to this clause Section 10.1(c) if such Party (ci) is did not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used use reasonable commercial best efforts to avoid the issuance have such Order vacated prior to its becoming final and nonappealable or (ii) failed to fulfill in any material respect any of such order, decree or rulingits obligations under Section 6.1(a) and Section 6.1(b);
(d) by either NBC Parent and Purchaser if: (i) any of the representations and warranties of the Company or Xenon 2 if upon the Selling Shareholders contained in this Agreement shall be inaccurate such that any condition set forth in Section 8.1 would not be satisfied; (ii) any of the covenants of the Company contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred; provided, however, in the case of clauses “(i)” and “(ii)” only, an inaccuracy in any of the representations and warranties of the Company or the Selling Shareholders as of a vote at date subsequent to the date of this Agreement or a duly held Xoom Stockholders Meeting breach of a covenant by the Company is curable by the Company through the use of reasonable best efforts within fifteen (15th) Business Days after Parent’s or any adjournment thereofPurchaser’s notification to the Company in writing of the existence of such inaccuracy or breach (the period from such notification until the earlier of the fifteenth (15th) Business Day and the End Date, the Xoom Stockholder Approval shall “Company Cure Period”), then Parent and Purchaser may not have been obtained terminate this Agreement under this Section 10.1(d) as a result of such inaccuracy or by NBC breach prior to the expiration of the applicable Company Cure Period, provided the Company or the Selling Shareholders, as applicable, during the applicable Company Cure Period, continue to exercise reasonable best efforts to cure such inaccuracy or breach (it being understood that Parent and Purchaser may not terminate this Agreement pursuant to this Section 10.1(d) with respect to such inaccuracy or breach if upon a vote at a duly held Xenon 2 Stockholders Meeting such inaccuracy or any adjournment thereof, breach is cured prior to the Xenon 2 Stockholder Approval shall not have been obtainedexpiration of the applicable Company Cure Period);
(e) by NBC the Company if: (i) any of Parent’s and Purchaser’s representations and warranties contained in this Agreement shall be inaccurate such that the condition set forth in Section 9.1 would not be satisfied; or (ii) if the Board any of Directors of Xoom or Xenon 2 or any committee thereof Parent’s and Purchaser’s covenants contained in this Agreement shall have withdrawn or modified been breached such that the condition set forth in Section 9.2 would not be satisfied; provided, however, if an inaccuracy in any of Parent’s and Purchaser’s representations and warranties as of a manner adverse date subsequent to NBC its approval or recommendation the date of this AgreementAgreement or a breach of a covenant by Parent and Purchaser is curable by Parent and Purchaser through the use of reasonable best efforts within fifteen (15th) Business Days after the Company’s notification to Parent and Purchaser in writing of the existence of such inaccuracy or breach (the period from such notification until the earlier of the fifteenth (15th) Business Day and the End Date, the Xenon 2 Merger “Purchaser Cure Period”), then the Company may not terminate this Agreement under this Section 10.1(e) as a result of such inaccuracy or any breach prior to the expiration of the transactions contemplated hereby Purchaser Cure Period, provided Parent and Purchaser, during the Purchaser Cure Period, continue to exercise reasonable best efforts to cure such inaccuracy or thereby;breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 10.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Purchaser Cure Period); or
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, Company if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom : (i) determines the conditions set forth in good faith and after consultation with a financial advisor of nationally recognized reputation Section 8 (other than those conditions that by their nature are to be more favorable satisfied by action taken at the Closing, but subject to the Xoom stockholders satisfaction thereof) have been and continue to be satisfied; (ii) the Company has irrevocably confirmed by written notice to Parent and Purchaser that the conditions set forth in Section 9 have been satisfied (other than those conditions that by their nature are to be satisfied by action taken at the Closing) or that it is willing to waive any unsatisfied conditions set forth in Section 9; (iii) the transactions contemplated by this Agreement shall not have been consummated within three (3) Business Days after the later of the delivery of such notice and the day the Closing is required to occur pursuant to Section 1.9(a); and (iv) the Company and each Selling Shareholder stands ready, willing and able to consummate the transactions contemplated by this Agreement and the Company and each Selling Shareholder is prepared to take such actions within its control to cause the Closing to occur; provided, however, notwithstanding anything in Section 10.1(b) to the contrary, no Party shall be permitted to terminate this Agreement pursuant to Section 10.1(b) during such three Business Day period following delivery of the notice referred to in clause (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyabove.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available Notwithstanding anything to the parties by law or contrary in this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing only as follows (for the avoidance of doubt, if the auction contemplated by the Bidding Procedures has occurred and Buyer is not the Successful Bidder but has been declared the Backup Bidder, Buyer agrees that it will not exercise its termination rights hereunder pursuant to Section 11.1(b)(ii) or (iii), until the earliest of (x) the Alternative Outside Date (as defined below), if applicable, (y) the closing of the sale to either the Successful Bidder or Buyer) or (z) the Outside Date, if applicable.
(a) by mutual written consent of NBC Sellers and Xenon 2Buyer;
(b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default from either Sellers or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;Buyer:
(c) by either NBC or Xenon 2 if (i) any if a Governmental AuthorityAuthority issues a final, the consent non-appealable ruling or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) Order permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated herebyhereby where such ruling or Order was not requested, encouraged or supported by any of Sellers or Buyer; provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (cSection 11.1(b)(i) shall not be available to any party who Party whose willful failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to the Outside Date;
(ii) if the Closing shall not have used reasonable commercial efforts occurred on or prior to avoid February 29, 2016 (the issuance “Outside Date”); provided, however, that if the Closing has not occurred by such date, but on such date all of the conditions set forth in Article 9 and Article 10 have been satisfied or waived (to the extent such conditions may be waived) other than the conditions set forth in Sections 9.4 and 10.4, then the Outside Date shall automatically be extended until thirty (30) days after such initial Outside Date (and such extended date shall be deemed to be the “Outside Date” for all purposes hereunder); provided, further that the terminating Party under this Section 11.1(b)(ii) is not (at such time of termination) in breach of any representation, warranty, covenant or other agreement in this Agreement so as to cause any conditions to Closing not to be satisfied and shall not have been the proximate cause of the failure of the Closing to occur on or prior to the Outside Date;
(iii) if at the end of the auction contemplated by the Bidding Procedures, Buyer is not determined by Sellers to be the (A) Successful Bidder or (B) Backup Bidder with respect to the Acquired Assets; provided that in the event Buyer is determined to be the Backup Bidder with respect to the Acquired Assets, then, this Agreement will terminate automatically without further action by any Party upon the earlier to occur of (X) the closing of a Successful Bid and (Y) the date that is sixty (60) days after the date of the sale hearing contemplated by the Bidding Procedures (the “Alternative Outside Date”);
(iv) if the Bankruptcy Court shall have entered an Order dismissing, or converting into cases under chapter 7 of the Bankruptcy Code, any of the cases commenced by Sellers under chapter 11 of the Bankruptcy Code and comprising part of the Bankruptcy Case;
(v) upon the occurrence of any Termination Event (as defined in the Cash Collateral Orders);
(vi) upon the date that is fourteen (14) days prior to the Bid Deadline, unless Buyer and Sellers shall have reached agreement in their sole discretion on each of the Deferred Matters, and this Agreement has been amended accordingly to reflect such agreement; or
(vii) upon the final, non-appealable ruling or denial of the Governmental Authorizations described in Sections 9.4 and 10.4 and required to be obtained by Closing.
(c) by written notice from Buyer:
(i) if any of the events set forth in clauses (a) through (d) of Section 7.5 shall not have occurred by the respective dates set forth therein;
(ii) other than as contemplated by the Sale Motion or Bidding Procedures Order, if any Seller seeks to have the Bankruptcy Court enter an Order dismissing, or converting into cases under chapter 7 of the Bankruptcy Code, any of the cases commenced by Sellers under chapter 11 of the Bankruptcy Code and comprising part of the Bankruptcy Case, or if a responsible officer or an examiner with enlarged powers is appointed (other than a fee examiner) relating to the operation of Sellers’ businesses pursuant to Section 1104 of the Bankruptcy Code and the order of appointment is not vacated or reversed within fourteen (14) days after the entry thereof;
(iii) in the event of any breach of, or failure to perform, by Sellers of any of their agreements, covenants, representations or warranties contained herein or in the Sale Order, which breach or failure to perform (A) would result in a condition set forth in Article 9 not to be satisfied and (B) cannot be cured within ten (10) Business Days after Buyer notifies Sellers of such orderbreach in writing; provided that Buyer shall not have a right of termination pursuant to this Section 11.1(c)(iii) if it is then in material breach of any of its agreements, decree covenants, representations or ruling;warranties contained herein or in the Sale Order; or
(iv) if, Buyer (other than as a result of (1) Buyer’s own breach of this Agreement or (2) the disallowance or avoidance of a substantial portion of the First Lien Obligations and/or the Prepetition First Priority Liens (as defined in the Cash Collateral Orders)) is unable, pursuant to Section 363(k) of the Bankruptcy Code, to credit bid in payment of all or any portion of the Purchase Price as set forth in Section 3.1 (other than the Assumed Liabilities and the cash portion of the Purchase Price); provided, that the inability to credit bid post-petition interest payable under Section 506(b) of the Bankruptcy Code or any other amount not in excess of $1,000,000 shall not give rise to a termination right under this Section 11.1(c)(iv).
(d) by either NBC written notice from Sellers: in the event of any breach of, or Xenon 2 if upon failure to perform, by Buyer of any of its agreements, covenants, representations or warranties contained herein or in the Sale Order, which breach or failure to perform (A) would result in a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval condition set forth in Article 10 not to be satisfied and (B) cannot be cured within ten (10) Business Days after Sellers notify Buyer of such breach in writing; provided that Sellers shall not have been obtained a right of termination pursuant to this Section 11.1(d) if Sellers are then in material breach of any of their agreements, covenants, representations or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting warranties contained herein or any adjournment thereofin the Sale Order. Each condition set forth in this Section 11.1 shall be considered separate and distinct from each other such condition. If more than one of the termination conditions set forth in this Section 11.1 are applicable, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof applicable party shall have withdrawn or modified in a manner adverse the right to NBC its approval or recommendation of this Agreement, choose the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved termination condition pursuant to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partybe terminated.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC Parent and Xenon 2the Company as authorized by their respective Boards of Directors;
(b) by either NBC Parent or Xenon 2 the Company, if any Order by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent Body of competent jurisdiction preventing or approval of which is required for the prohibiting consummation of the transactions contemplated hereby, Merger shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a become final and unappealable permanent injunctionnonappealable; provided, orderhowever, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under pursuant to this clause Section 9.1(b) must have used all reasonable efforts to remove any such Order;
(c) is not then in material breach by either Parent or the Company if (i) the Company Shareholders’ Meeting (including any adjournment or postponement thereof) shall have been duly held and completed and the shareholders of the Company shall have taken a final vote on a proposal to approve and adopt the Merger and this Agreement and (ii) the Merger and this Agreement shall not have been adopted and approved by the shareholders of the Company; provided, furtherhowever, that the right a party shall not be permitted to terminate this Agreement pursuant to this Section 9.1(c) if the failure of such party’s shareholders to adopt and approve the Merger and this Agreement is attributable to a failure on the part of such party to perform its obligations under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingAgreement;
(d) by either NBC Parent if any of the Company’s representations and warranties contained in this Agreement shall have become materially inaccurate such that the condition specified in Section 6.1 would not be satisfied, or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, of the Xoom Stockholder Approval Company’s covenants contained in this Agreement shall not have been obtained breached in any material respect; provided, however, that Parent may not terminate this Agreement under this Section 9.1(d) on account of an inaccuracy in the Company’s representations and warranties or on account of a breach of a covenant by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting the Company which is capable of being cured, unless the Company fails to cure such inaccuracy or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedbreach within 15 days after receiving written notice from Parent of such inaccuracy or breach;
(e) by NBC the Company if the Board any of Directors of Xoom Parent’s or Xenon 2 or any committee thereof Merger Sub’s representations and warranties contained in this Agreement shall have withdrawn become materially inaccurate such that the condition specified in Section 7.1 would not be satisfied, or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or if any of Parent’s or Merger Sub’s covenants contained in this Agreement shall have been breached in any material respect; provided, however, that the transactions contemplated hereby Company may not terminate this Agreement under this Section 9.1(e) on account of an inaccuracy in Parent’s representations and warranties or therebyon account of a breach of a covenant by Parent or Merger Sub which is capable of being cured, unless Parent or Merger Sub fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Company of such inaccuracy or breach;
(f) by NBC Parent or the Company if the Closing has not taken place on or before October 31, 2004, or such later date as mutually agreed in writing (the “Termination Date”); provided, that a party shall not be permitted to terminate this Agreement pursuant to this Section 9.1(f) if the failure of the Closing to have occurred is attributable to a failure on the part of such party to perform its obligations under this Agreement;
(g) by Parent if a Company Triggering Event (as defined below) shall have occurred; or
(h) By the Company, upon approval of the Board of Directors of Xoom the Company, if prior to the Company Shareholders’ Meeting, the Board of Directors of the Company determines, in its good faith judgment after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that it is required to do so to comply with its fiduciary obligations to the Company and its shareholders under applicable Legal Requirements in order to enter into a definitive agreement with respect to a Superior Proposal, but only (i) after providing five (5) business days prior written notice to Parent setting forth in reasonable detail the identity of the Person making, and the final terms and conditions of, such Superior Proposal, and (ii) duly considering any proposals that may be made by Parent during such five (5) business day period and determining, in its good faith judgment (after consultation with a financial advisor of internationally recognized reputation and independent legal counsel), that any such proposals would not be at least as favorable to the Company’s shareholders as such Superior Proposal; provided, however, that any termination of this Agreement pursuant to this Section 9.1(h) shall not be effective until the Company has made full payment of all amounts provided under Section 9.4. For purposes of this Agreement, a “Company Triggering Event” shall be deemed to have accepted occurred if: (i) the Board of Directors of the Company withdraws, modifies or recommended changes the Company Recommendation in a Takeover Proposal manner adverse to Parent or shall have resolved to do so;
; (gii) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable the Company shall have recommended to the Xoom stockholders than shareholders of the transactions contemplated by Company a Competing Transaction or shall have resolved to do so or shall have entered into any letter of intent or similar document or any agreement, contract or commitment accepting any Competing Transaction; (iii) the Company shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company in favor of the approval and adoption of this Agreement and the approval of the Merger; (iiiv) concludes in good faith based on through the advice fault (whether by commission or omission) of outside legal counsel that termination the Company, the Merger is not, prior to September 30, 2004, submitted for the approval of this Agreement is required to comply with the holders of Company Common Stock at the Company Shareholders’ Meeting; (v) the Company shall have intentionally breached its fiduciary duties obligations under applicable lawSection 4.5; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (yvi) Xoom a tender offer or Xenon 2exchange offer for 20% or more of the outstanding shares of capital stock of the Company is commenced, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice and the Board of Directors of the Company fails to recommend against acceptance of such breach is given tender offer or exchange offer by its shareholders (including by taking no position with respect to the non-breaching partyacceptance of such tender offer or exchange offer by its stockholders).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing, notwithstanding approval of this Agreement by the Company’s stockholders in accordance with the terms hereof:
(a) by mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 by written notice the Company, if there shall be any Legal Requirement enacted or deemed applicable to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided Merger that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the makes consummation of the transactions contemplated herebyMerger illegal, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) if any court Order by any Governmental Body of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment preventing or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated herebyMerger shall have become final and nonappealable; provided, provided however, that the party seeking to terminate this Agreement -------- under pursuant to this clause Section 8.1(b) must have used all commercially reasonable efforts to remove any such Order prior to the Termination Date;
(c) by either Parent or the Company, if this Agreement and the Merger shall not have been approved by the vote of the stockholders of the Company required by applicable Legal Requirements; provided, however, that the Company shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure of the Company stockholders to approve this Agreement is not then in material breach attributable to a failure on the part of the Company to perform its obligations under this Agreement;
(d) By Parent, if within 24 hours of the execution of this Agreement by each of the parties hereto, the Company shall not have delivered to Parent at least that number of fully executed Stockholder Written Consents representing the Requisite Stockholder Vote.
(e) by Parent, (i) if any of the Company’s representations and warranties contained in this Agreement shall have been inaccurate as of the date of this Agreement or shall have become inaccurate as of any subsequent date (as if made on such subsequent date), such that the condition to closing described in Section 6.1 would not be satisfied; or (ii) if any of the Company’s covenants contained in this Agreement shall have been breached such that the condition to closing described in Section 6.2 would not be satisfied; provided, furtherhowever, that the right to Parent may not terminate this Agreement under this clause -------- ------- (cSection 8.1(e) shall not be available on account of an inaccuracy in the Company’s representations and warranties or on account of a breach of a covenant by the Company if such inaccuracy or breach is curable by the Company unless the Company fails to any party who shall not have used reasonable commercial efforts to avoid the issuance cure such inaccuracy or breach within 15 days after receiving written notice from Parent of such order, decree inaccuracy or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or therebybreach;
(f) by NBC the Company, if the Board (i) any of Directors of Xoom Parent’s representations and warranties contained in this Agreement shall have accepted or recommended a Takeover Proposal been inaccurate as of the date of this Agreement or shall have resolved become inaccurate as of any subsequent date (as if made on such subsequent date), such that the condition to do so;closing described in Section 7.1 would not be satisfied; or (ii) if any of Parent’s covenants contained in this Agreement shall have been breached, such that the condition to closing described in Section 7.2 would not be satisfied; provided, however, that the Company may not terminate this Agreement under this Section 8.1(f) on account of an inaccuracy in Parent’s representations and warranties or on account of a breach of a covenant by Parent if such inaccuracy or breach is curable unless Parent fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Company of such inaccuracy or breach; or
(g) by Xoom Parent or Xenon 2the Company, prior to if the receipt Closing has not taken place on or before September 30, 2006 (the “Termination Date”) (other than as a result of any failure on the part of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third terminating party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with or perform any of its fiduciary duties under applicable law; or
(h) by either NBC covenants or Xenon 2 obligations set forth in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Contribution, Investment and Merger (General Electric Co)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the adoption of this Agreement by the Company’s stockholders):
(a) by the mutual written consent of NBC Parent and Xenon 2the Company;
(b) by Parent if the Closing has not taken place on or before 5:00 p.m. (California Time) on March 31, 2023 (the “End Date”) and any condition set forth in Section 6 has not been satisfied or waived as of the time of termination (other than as a result of any failure on the part of Parent or Merger Sub to comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement); provided, however, that if, on such date, any of the conditions to the Closing set forth in Section 6.3, 6.7 or 6.8 have not been satisfied but all other conditions to the Closing either NBC have been satisfied or Xenon 2 waived or would be satisfied if the Closing were to occur on such date, then Parent may (but shall not be obligated to) elect, by written notice to the other parties if Company, to extend the transactions contemplated by End Date to June 30, 2023 and such date shall become the “End Date” for all purposes of this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateAgreement;
(c) by either NBC the Company if the Closing has not taken place on or Xenon 2 if before 5:00 p.m. (California Time) on the End Date and any condition set forth in Section 7 has not been satisfied or waived as of the time of termination (other than as a result of any failure on the part of the Company to comply with or perform any covenant or obligation set forth in this Agreement);
(d) by Parent or the Company if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Entity shall have issued a final and unappealable permanent injunctionnonappealable Order or shall have taken any other action, order, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Entity that would make consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedMerger illegal;
(e) by NBC if Parent if: (i) any representation and warranty of the Board Company contained in this Agreement shall be inaccurate as of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation the date of this Agreement, or shall have become inaccurate as of a date subsequent to the Xenon 2 Merger Agreement or date of this Agreement, such that any of the transactions contemplated hereby conditions set forth in Section 6.1 would not be satisfied; or thereby(ii) any of the covenants of the Company contained in this Agreement shall have been breached such that the conditions set forth in Section 6.2 would not be satisfied; provided, however, that, in the case of each of clauses “(i)” and “(ii)”, if an inaccuracy in any of the representations and warranties of the Company as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company is curable by the Company through the use of reasonable efforts within 10 days after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(e) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company, during the Company Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period);
(f) by NBC if the Board Company if: (i) any of Directors Parent’s representations and warranties contained in this Agreement shall be inaccurate as of Xoom shall have accepted or recommended a Takeover Proposal the date of this Agreement, or shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement, such that any of the conditions set forth in Section 7.1 would not be satisfied; or (ii) if any of Parent’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts within 10 days after the Company notifies Parent in writing of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Parent Cure Period); and
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days Parent if written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by consents adopting this Agreement by the Required Stockholder Vote shall not have been duly executed and (ii) concludes in good faith based on delivered within two hours after the advice of outside legal counsel that termination execution and delivery of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein Company may be abandoned at dissolved, subject to Section 9.7, upon the occurrence of any time prior to of the Effective Time:following events (collectively, "Termination Events"):
(a) by mutual written consent the Board unanimously votes for the termination of NBC and Xenon 2the Agreement pursuant to Section 4.4;
(b) by either NBC or Xenon 2 by written notice Shareholder in the event of a Deadlock pursuant to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateSection 4.5;
(c) by either NBC MSK, upon a material violation or Xenon 2 if (i) any Governmental Authoritybreach by Sequana of a material provision of this Agreement, the consent Sequana License Agreement or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Sequana Services Agreement and provided, further, such violation or breach has not been waived by MSK and such breach remains uncorrected for a period of ninety (90) days after receipt by Sequana of a written 31 notice specifying the provision that has been breached and the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of details surrounding such order, decree or rulingbreach;
(d) by either NBC or Xenon 2 if Sequana, upon a vote at material violation or breach by MSK of a duly held Xoom Stockholders Meeting or any adjournment thereofmaterial provision of this Agreement, the Xoom Stockholder Approval shall MSK License Agreement or the MSK Services Agreement and such violation or breach has not have been obtained or waived by NBC if upon Sequana; and such breach remains uncorrected for a vote at period of ninety (90) days after receipt by MSK of a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, written notice specifying the Xenon 2 Stockholder Approval shall not have provision that has been obtainedbreached and the details surrounding such breach;
(e) by NBC if MSK, in the Board event of Directors a Sequana Change of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified Control which results in a manner adverse Person controlling Sequana that has not been approved by MSK; provided that MSK's approval of such Person shall not be unreasonably withheld or delayed and provided further that MSK shall not be entitled to NBC terminate this Agreement pursuant to this clause (e) in the event that the Person controlling Sequana following a Sequana Change of Control is engaged in the health care or pharmaceutical business unless MSK, in its approval reasonable judgment believes that an affiliation by MSK with such Person would jeopardize MSK's scientific or recommendation of this Agreementethical principles, the Xenon 2 Merger Agreement MSK's not-for-profit charter or any of the transactions contemplated hereby or therebyMSK's relationships with regulatory agencies;
(f) by NBC if MSK upon the Board occurrence of Directors an Insolvency Event of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do soSequana;
(g) by Xoom or Xenon 2, prior to Sequana upon the receipt occurrence of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board an Insolvency Event of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; orMSK;
(h) by either NBC or Xenon 2 Shareholder, in the event there that (a) the Company has expended (i) the Initial Contributions and (ii) any required investments by the Shareholders pursuant to Section 3.3(a) hereof and (iii) additional investments from each Shareholder, if any, required pursuant to Section 3.3(b) hereof and (b) the Scientific Advisory Committee has certified to the Board that no gene discovery has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.made; and
(i) automatically and without any action by either Shareholder in the parties upon event of the termination of the Xenon 2 Merger AgreementSequana License Agreement or the MSK License Agreement in accordance with the terms thereof.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing, whether before or after the Lance Stockholder Approval or the Snyder’s Stockholder Approval:
(a) by mutual written consent of NBC Lance and Xenon 2Snyder’s;
(b) by either NBC Lance or Xenon 2 by written notice to Snyder’s, if:
(i) the other parties if the transactions contemplated by this Agreement Transactions have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
April 1, 2011 (c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and “End Date”); provided, further, that the right to terminate this Agreement under pursuant to this clause -------- ------- (cSection 7.1(b)(i) shall not be available to any party who shall not have used reasonable commercial efforts Party whose breach of any provision of this Agreement results in the failure of the Transactions to avoid the issuance of be consummated by such order, decree or rulingtime;
(dii) by either NBC there shall be any applicable Law that (A) makes consummation of the Transactions illegal or Xenon 2 if upon otherwise prohibited; or (B) enjoins a vote at Party from consummating the Transactions and such enjoinment shall have become final and nonappealable;
(iii) Lance’s board of directors shall have made a duly held Xoom Stockholders Meeting or any adjournment thereof, Lance Adverse Recommendation Change;
(iv) the Xoom Lance Stockholder Approval shall not have been obtained at a meeting of the Lance stockholders duly convened therefor or by NBC if upon at any adjournment or postponement thereof at which a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, was taken in an effort to obtain the Xenon 2 Lance Stockholder Approval;
(v) the Snyder’s Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in obtained at a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any meeting of the transactions contemplated hereby Snyder’s stockholders duly convened therefor or thereby;
(f) by NBC if at any adjournment or postponement thereof at which a vote was taken in an effort to obtain the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Snyder’s Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(hvi) Snyder’s board of directors shall have made a Snyder’s Adverse Recommendation Change;
(c) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBCLance, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.if:
(i) automatically a material breach by Snyder’s (directly or indirectly, through any Representative of Snyder’s) of Sections 5.5 or 5.7 shall have occurred;
(ii) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Snyder’s set forth in this Agreement shall have occurred that would cause a condition set forth in Sections 6.2(a)(i) or 6.2(a)(ii) not to be satisfied, and without any action such condition is incapable of being satisfied by the parties upon End Date; or
(iii) a Material Adverse Effect with respect to Snyder’s has occurred and cannot be cured by the termination End Date; or
(d) by Snyder’s, if:
(i) a material breach by Lance (directly or indirectly, through any Representative of Lance) of Sections 5.6 or 5.8 shall have occurred;
(ii) a breach of any representation or warranty or failure to perform any covenant or agreement on the Xenon 2 Merger Agreementpart of Lance set forth in this Agreement shall have occurred that would cause a condition set forth in Sections 6.3(a)(i) or 6.3(a)(ii) not to be satisfied, and such condition is incapable of being satisfied by the End Date; or
(iii) a Material Adverse Effect with respect to Lance has occurred and cannot be cured by the End Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give written notice to the other Parties.
Appears in 1 contract
Sources: Merger Agreement (Lance Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent the Purchaser if:
(i) there is a material Breach of NBC any representation, warranty, covenant or obligation of the Company under this Agreement or of the Inventor under the Inventor Agreement;
(ii) the Purchaser reasonably determines that the timely satisfaction of any condition set forth in Article VIII has become impossible or impractical (other than as a result of any failure on the part of the Purchaser to comply with or perform its covenants and Xenon 2obligations under this Agreement);
(iii) the Purchaser is not, in its reasonable discretion, satisfied with the results of its due diligence review of the Company, provided that the Purchaser's right to terminate pursuant to this Section 10.1(a)(iii) shall exist only during the Due Diligence Review Period;
(iv) a Governmental Authorization required for consummation of the Merger and the other Transactions shall have been denied by final nonappealable action of the Governmental Body responsible for such Governmental Authorization or a Governmental Body issues a final nonappealable order blocking the Merger; or
(v) the Company modifies or amends its Disclosure Schedule and discloses any items or events that have resulted in or are likely to result in a Material Adverse Change.
(b) by either NBC the Company if:
(i) there is a material Breach of any representation, warranty, covenant or Xenon 2 by written notice obligation of the Purchaser;
(ii) the Company reasonably determines that the timely satisfaction of any condition set forth in Article IX has become impossible or impractical (other than as a result of any failure on the part of the Company to comply with or perform any covenant or obligation set forth in this Agreement);
(iii) a Governmental Authorization required for consummation of the Merger and the other parties if the transactions contemplated Transactions shall have been denied by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement final nonappealable action of the parties heretoGovernmental Body responsible for such Governmental Authorization or a Governmental Body issues a final nonappealable order blocking the Merger;
(iv) the Purchaser modifies or amends its Disclosure Schedule and disclosed any items or events that have resulted in or are likely to result in a Material Adverse Change;
(v) the Purchaser or Merger Sub modifies the Purchaser Disclosure Schedule and discloses any items or events that have resulted in or are likely to result in a Material Adverse Change; or
(vi) the Company is not, provided that in its reasonable discretion, satisfied with the party terminating this Agreement shall not be in material -------- default or breach hereunder and results of its due diligence review of the Purchaser; provided, further, that the Company's right to terminate --------- ------- pursuant to this Agreement under this clause (bSection 10.1(b)(vi) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been exist only during the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;Due Diligence Review Period.
(c) by either NBC the Purchaser or Xenon 2 the Company if (i) any Governmental Authoritythe Closing has not taken place on or before June 1, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree 2002 (other than as a temporary restraining order) restraining, enjoining or otherwise prohibiting result of any failure on the consummation part of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- to materially comply with or perform its covenants and obligations under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;Agreement); and
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any mutual written consent of the transactions contemplated hereby or thereby;
(f) by NBC if Purchaser and the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyCompany.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Merger Agreement (Innovative Gaming Corp of America)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Purchaser and Xenon 2the Company;
(b) by either NBC Purchaser if the Closing has not taken place on or Xenon 2 before 5:00 p.m. (Alaska time) on December 1, 2014 (the “End Date”) and any condition set forth in Section 8 has not been satisfied or waived as of the time of termination (in each case other than as a result of any failure on the part of Purchaser to comply with or perform any covenant or obligation of Purchaser set forth in this Agreement);
(c) by written notice the Company or the Sellers if the Closing has not taken place on or before 5:00 p.m. (Alaska time) on the End Date and any condition set forth in Section 9 has not been satisfied or waived as of the time of termination (in each case other than as a result of any failure on the part of the Company, any of the Sellers to comply with or perform any covenant or obligation set forth in this Agreement);
(d) by Purchaser if the other parties if approval of any Governmental Entity required for consummation of the transactions contemplated by this Agreement shall have not been consummated denied by December 31, 1999, unless extended by written agreement final nonappealable action of such Governmental Entity or if an application therefor shall have been permanently withdrawn at the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such daterequest of a Governmental Entity;
(ce) by either NBC Purchaser or Xenon 2 if the Company if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Entity shall have issued a final and unappealable permanent injunctionnonappealable Order, orderor shall have taken any other action, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of transactions contemplated by this Agreement; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the transactions contemplated hereby, provided that the party seeking to terminate by this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, by any Governmental Entity that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance would make consummation of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or therebyillegal;
(f) by NBC if Purchaser if: (i) any of the Board representations and warranties of Directors the Company or any Seller contained in this Agreement shall be inaccurate as of Xoom shall have accepted or recommended a Takeover Proposal the date of this Agreement, or shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement, such that the condition set forth in Section 8.1 would not be satisfied; (ii) any of the covenants of the Company contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; or (iii) any Company Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects that have occurred or shall exist, would reasonably be expected to have or result in a Company Material Adverse Effect; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company or any Seller as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company or any Seller is curable by the applicable party through the use of commercially reasonable efforts within five (5) Business Days after Purchaser notifies the such party in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Purchaser may not terminate this Agreement under this Section 10.1(f) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the applicable party, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that Purchaser may not terminate this Agreement pursuant to this Section 10.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period); or
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, Company if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom : (i) determines any of Purchaser’s representations and warranties contained in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on shall be inaccurate as of the advice date of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating shall have become inaccurate as of a date subsequent to the date of this Agreement, such that the condition set forth in each case which default Section 9.1 would not be satisfied; or (ii) if any of Purchaser’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 9.2 would not be satisfied; provided, however, that if an inaccuracy in any of Purchaser’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Purchaser is curable by Purchaser through the use of commercially reasonable efforts within five (5) Business Days after the Company notifies Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Company may not terminate this Agreement under this Section 10.1(g) as a result of such inaccuracy or breach prior to the expiration of the Purchaser Cure Period, provided Purchaser, during the Purchaser Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 10.1(g) with respect to such inaccuracy or breach if such inaccuracy or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by prior to the non-breaching party.
(i) automatically and without any action by the parties upon the termination expiration of the Xenon 2 Merger AgreementPurchaser Cure Period).
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to Closing upon prior written notice given by (or on behalf of) the Effective Timeparty electing to terminate this Agreement to the other party:
(a) by mutual written consent agreement of NBC Buyer and Xenon 2Seller (expressed in writing);
(b) by either NBC Buyer or Xenon 2 by written notice Seller, if (i) a Governmental Authority whose approval is necessary to the other parties if consummate the transactions contemplated by this Agreement hereby shall have not been consummated by December 31refused to approve the transactions contemplated hereby, 1999and such decision is non-appealable, unless extended by written agreement or (ii) any permanent injunction, court order or other order, decree or ruling of any court of competent jurisdiction or other Governmental Authority or new law or change to existing law permanently restraining, enjoining or otherwise preventing the consummation of the parties heretotransactions contemplated hereby shall have been issued and become final and non-appealable;
(c) by either Buyer or Seller, provided that the party terminating this Agreement if Closing shall not be in material -------- default or breach hereunder and have occurred by October 1, 2012; provided, furtherhowever, that the right to terminate --------- ------- this Agreement under this clause (bSection 11.1(c) shall not be available to (i) any party whose breach of its representations and warranties in this Agreement or whose failure to perform any of its covenants and agreements under this Agreement shall have been a contributing cause of, or resulted in, the failure of Closing to occur on or before such date, or (ii) any party whose failure to fulfill any material obligation under this Agreement or whose failure to use all good faith efforts to promptly cause the satisfaction of the conditions under Article 7 or Article 8, as applicable, has been the cause of, or resulted in, the failure of Closing to consummate the transactions contemplated occur by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 Buyer, if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, Material Adverse Effect shall have occurred since the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedBalance Sheet Date;
(e) by NBC if the Board Buyer, upon a breach in any material respect of Directors of Xoom any covenant or Xenon 2 or any committee thereof shall have withdrawn or modified agreement by Seller set forth in a manner adverse to NBC its approval or recommendation of this Agreement, or if any representation or warranty of Seller or ▇▇▇▇▇▇▇ shall have been materially breached or shall have been or become materially untrue, in any such case that the Xenon 2 Merger Agreement conditions set forth in Article 7 would be incapable of being satisfied by October 1, 2012 (or any of the transactions contemplated hereby or thereby;later date as such date may be otherwise extended by Buyer); or
(f) by NBC if the Board Seller, upon a breach in any material respect of Directors of Xoom shall have accepted any covenant or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based agreement on the advice part of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 Buyer set forth in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or if any representation or warranty of Buyer shall have been materially breached or shall have been or become materially untrue in any such case such that the conditions set forth in Article 8 would be incapable of being satisfied by October 1, 2012 (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of any later date as such breach is given date may be otherwise extended by the non-breaching partySeller).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Acadia Healthcare Company, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice to on or before the other parties if Closing Date: by the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement mutual consent of the parties hereto; or by Buyer, provided that if the party terminating this Agreement shall conditions set forth in Article 6 are not be in material -------- default satisfied (or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (bare incapable or being satisfied) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental AuthorityMay 30, the consent or approval 2006, without fault of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained Buyer; or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereofSeller, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board conditions set forth in Article 7 are not satisfied (or are incapable of Directors being satisfied) on or before May 30, 2006 without fault of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation Seller. EFFECT OF TERMINATION. In the event of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply as provided in Section 8.1 hereof, this Agreement shall forthwith become void and there shall be no liability on the part of Buyer, Seller, their respective officers or managers, except that the agreements contained in Section 8.3 hereof shall survive the termination hereof and any confidentiality or non-disclosure agreements between Buyer and Seller or its Affiliates shall survive in accordance with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in their terms. RETURN OF DOCUMENTS. In the event there has been that the sale of the Purchased Assets is not consummated for any reason whatsoever, or if this Agreement is terminated for any reason whatsoever, each party will return to the other party on a material default timely basis all documents, agreements, instruments or breach other written information concerning the other party that was obtained from such other party, or to the extent permitted by (x) NBClaw will destroy the same and provide to the other party written certification of such destruction, where Xenon 2 is terminating and will destroy any related electronic files, to the extent commercially feasible. INDEMNIFICATION INDEMNIFIED LOSSES. For the purpose of this Article 9 and when used elsewhere in this Agreement, "Losses" shall mean and include any and all liability, loss, damage, claim, expense, cost, fine, fee, penalty, obligation or (y) Xoom injury including those resulting from any and all actions, suits, proceedings, demands, assessments or Xenon 2judgments, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by together with reasonable costs and expenses including the non-breaching partyattorneys' fees and other legal costs and expenses relating thereto.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the adoption of this Agreement by the Company’s stockholders):
(a) by the mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent if the Closing has not taken place on or Xenon 2 by written notice before 5:00 p.m. (Pacific time) on the three (3) month anniversary of the date of this Agreement (the “Expiration Date”) (other than as a result of any failure on the part of Parent to comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement or in any other agreement or instrument delivered to the other parties if Company in connection with the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateAgreement);
(c) by either NBC or Xenon 2 the Company if (i) the Closing has not taken place on or before 5:00 p.m. (Pacific time) on the Expiration Date (other than as a result of any Governmental Authority, failure on the consent part of the Company or approval any of which is required for the consummation stockholders of the Company to comply with or perform any covenant or obligation set forth in this Agreement or in any other agreement or instrument delivered to Parent in connection with the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful by this Agreement) or (ii) any if Parent breaches its obligation to consummate the Merger pursuant to Section 1.3;
(d) by either Parent or the Company if: (i) a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, non-appealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Body that would make consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedMerger illegal;
(e) by NBC if Parent if: (i) any of the Board representations and warranties of Directors the Company contained in this Agreement shall be inaccurate as of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation the date of this Agreement, or shall have become inaccurate as of a date subsequent to the Xenon 2 Merger Agreement date of this Agreement, such that the condition set forth in Section 6.1 would not be satisfied; or (ii) any of the transactions contemplated hereby covenants of the Company contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Company as of a date subsequent to the date of this Agreement or therebya breach of a covenant by the Company is curable by the Company through the use of reasonable efforts during the period between the date Parent notifies the Company in writing of the existence of such inaccuracy or breach and the Expiration Date (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(e) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company, during the Company Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period);
(f) by NBC if the Board Company if: (i) any of Directors Parent’s representations and warranties contained in this Agreement shall be inaccurate as of Xoom shall have accepted or recommended a Takeover Proposal the date of this Agreement, or shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement, such that the condition set forth in Section 7.1 would not be satisfied; or (ii) if any of Parent’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts during the period between the date the Company notifies Parent in writing of the existence of such inaccuracy or breach and the Expiration Date (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Parent Cure Period); or
(g) by Xoom or Xenon 2, prior to Parent if the receipt of Required Merger Stockholder Vote is not obtained within twenty four (24) hours after the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination execution of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Merger Agreement (Veracyte, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeabandoned:
(a) by mutual written consent of NBC and Xenon 2the Parties;
(b) after March 15, 2006 (the “Outer Date”), by either NBC or Xenon 2 any Party by written notice to the other parties Party if the transactions contemplated by this Agreement Closing shall not have not been consummated by December 31, 1999, unless extended by written agreement of on or prior to the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and Outer Date; provided, furtherhowever, that the right to terminate --------- ------- this Agreement under this clause (bSection 10.1(b) shall not be available to any party Party whose failure or whose Affiliate’s failure to fulfill perform in all material respects any obligation of its obligations under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such date;
(c) by either NBC or Xenon 2 any Party by notice to the other Party, if (i) a final, non-appealable order, decree or ruling enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement to occur on the Closing Date has been issued by any Governmental Authorityfederal or state court in the United States having jurisdiction (unless such order, the consent decree or approval of which is required for ruling has been withdrawn, reversed or otherwise made inapplicable) or any U.S. federal or state Law has been enacted that would make the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate by this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that to occur on the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;Closing Date illegal; or
(d) by either NBC or Xenon 2 Party by notice to the other Party if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, an Extraordinary Event shall have occurred and the Xoom Stockholder Approval Closing shall not have been obtained or taken place by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereofDecember 16, the Xenon 2 Stockholder Approval shall not have been obtained;
2005. Any termination (ex) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse Purchaser pursuant to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
Section 10.1(d) will be effective immediately upon receipt by Seller and (fy) by NBC if Seller will become effective on the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
sixteenth Business Day after receipt by Purchaser (g) by Xoom or Xenon 2, prior subject to the immediately succeeding sentence). Following receipt by Purchaser of a termination notice pursuant to this Section 10.1(d)), Purchaser may, at its option, terminate the right of Seller and Purchaser to terminate this Agreement pursuant to this Section 10.1(d) and render such termination null and void by delivering to Seller, no later than fifteen Business Days after receipt of the Xoom Stockholder Approval, on five business days written Seller’s termination notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with written notice that Purchaser has elected to exercise its rights under this sentence (a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement “Waiver Notice”) and (ii) concludes in good faith based on written evidence reasonably satisfactory to Seller that Purchaser’s equity and debt financing sources have amended their commitments to the advice extent necessary to permit the Closing to occur notwithstanding the occurrence of outside legal counsel that termination of the Extraordinary Event and the amendments to this Agreement is required resulting from this Section 10.1(d). Upon delivery of a Waiver Notice (1) the definition of Seller Material Adverse Effect will automatically be amended to comply with its fiduciary duties under applicable law; or
(h) by provide no change, circumstance, event or effect resulting from or arising out of the Extraordinary Event shall be deemed, either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreementalone, or in combination, to constitute a Seller Material Adverse Effect and (y2) Xoom for all purposes of Article III 10/31/05 Adjusted EBITDA will be increased by an amount equal to the difference between any reduction in 10/31/05 Adjusted EBITDA directly or Xenon 2, where NBC is terminating indirectly arising out of or relating to the Extraordinary Event (with such reduction being equal to the difference between 10/31/05 Adjusted EBITDA determined without regard to this Agreement, in each case which default or breach is Section 10.1(d) and what 10/31/05 Adjusted EBITDA would reasonably been expected to have been if such Extraordinary Event had not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyoccurred) and $50 million.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agilent Technologies Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties This Agreement may, by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time written notice given prior to or at the Effective TimeClosing, be terminated:
(a) by 8.1.1 By mutual written consent of NBC Buyer and Xenon 2Sellers’ Representative;
(b) by either NBC 8.1.2 on or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by after December 31, 19992013, unless extended by written agreement either Sellers’ Representative or Buyer if the Closing has not occurred on or before such date; provided, that the terminating party shall give the other party not less than two (2) Business Days’ notice of its intent to terminate this Agreement pursuant to this Section 8.1.2 and within such two (2) Business Day period will discuss with the other party or parties the basis upon which such notice was given and shall explore possible alternatives; provided, however, that the decision to terminate shall rest solely in the discretion of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder notifying party; and provided, further, further that (i) the right to terminate --------- ------- this Agreement under pursuant to this clause (b) Section 8.1.2 shall not be available to a party that is then in breach in any party whose failure to fulfill material respect of any representation, warranty, covenant, agreement or obligation under contained in this Agreement has been the cause of, or resulted in, the failure and (ii) Sellers’ Representative’s right to consummate the transactions contemplated by terminate this Agreement pursuant to this Section 8.1.2 shall not be available if Closing shall not have occurred on or before prior to November 30, 2013 solely because the condition contained in Section 6.10 shall not have been satisfied or waived on or prior to such date, except that Sellers’ Representative may terminate this Agreement pursuant to this Section 8.1.2 (subject to the proviso set forth in the immediately preceding clause (i)) if (y) Closing shall not have occurred on or prior to February 28, 2014 or (z) a Gaming Authority shall have determined, in a writing delivered to Buyer, not to issue a Key Gaming Approval to Buyer, and on or prior to the fifth (5th) Business Day following Buyer’s receipt of such determination, Buyer shall not have delivered to Sellers’ Representatives a request for a Withdrawn Consent with respect to such Key Gaming Approval (provided, that, Sellers’ Representative may not terminate this Agreement pursuant to this clause (z) if Buyer uses its commercially reasonable efforts to challenge such determination, unless and until such time as such determination is subsequently upheld pursuant to the entry of a final, binding and non-appealable order issued, made or rendered by a court of competent jurisdiction);
(c) 8.1.3 by either NBC or Xenon 2 Sellers’ Representative, upon written notice, if (i) any Governmental Authority, the consent one or approval of which is required for the consummation more of the transactions contemplated hereby, representations and warranties of Buyer shall have determined become untrue such that the condition set forth in Section 7.1 would not to grant its consent or approval and all appeals of such determination be satisfied, (ii) Buyer shall have been taken breached any agreement, obligation or covenant such that the condition set forth in Section 7.2 would not be satisfied, or (iii) all of the conditions set forth in Section 6 are satisfied (excluding conditions that, by their terms, cannot be satisfied until the Closing, but which would be reasonably capable of being satisfied at Closing) and have been unsuccessful Buyer fails to satisfy its obligations to be carried out at Closing under Section 1; provided, that in the case of (i) or (ii) any court if the inaccuracy in Buyer’s representations and warranties or the breach of competent jurisdiction in Buyer’s agreement, obligation or covenant is curable through the United States exercise of Buyer’s commercially reasonable efforts, then Sellers’ Representative may not terminate this Agreement for thirty (30) days after Sellers’ Representative shall have issued a final given written notice of such inaccuracy or breach to Buyer (so long as Buyer continues to use commercially reasonable efforts to cure the inaccuracy or breach during such period), it being understood that Sellers’ Representative may not terminate this Agreement if Buyer cures such inaccuracy or breach within such thirty (30) day period;
8.1.4 by Buyer, upon written notice to Sellers’ Representative, if (i) one or more of the representations and unappealable permanent injunctionwarranties of Sellers and/or the Company shall have become untrue such that the condition set forth in Section 6.1 would not be satisfied, order(ii) Sellers or the Company shall have breached any agreement, judgment obligation or other decree covenant such that the condition set forth in Section 6.2 would not be satisfied, or (other than a temporary restraining orderiii) restrainingall of the conditions set forth in Section 7 are satisfied (excluding conditions that, enjoining by their terms, cannot be satisfied until the Closing, but which would be reasonably capable of being satisfied at Closing) and Sellers and the Company fail to satisfy all of their obligations to be carried out at Closing under Section 1; or
8.1.5 by Buyer or otherwise prohibiting the Sellers if there shall be any Legal Requirement that makes consummation of the transactions contemplated herebypurchase of the Shares illegal or otherwise prohibited, or if any Governmental Order enjoining Buyer or Sellers from consummating the purchase of the Shares is entered and such order shall have become final and nonappealable; provided that the party seeking to terminate this Agreement -------- under pursuant to this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) provision shall not be available to any party who shall not have used all commercially reasonable commercial efforts to avoid the issuance of remove or vacate such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Purchaser and Xenon 2Seller;
(b) by either NBC or Xenon 2 by written notice to the other parties Purchaser if the transactions contemplated by this Agreement have Closing has not taken place on or before 5:00 p.m. (Eastern Time) on December 15, 2021 (the “End Date”) and any condition set forth in Section 7 (other than any condition to be satisfied at the Closing) has not been consummated by December 31, 1999, unless extended by written agreement satisfied or waived as of the parties heretotime of termination; provided, provided however, that the party terminating this Agreement Purchaser shall not be in material -------- default or breach hereunder and provided, further, that the right entitled to terminate --------- ------- this Agreement under pursuant to this clause (bSection 9.1(b) shall not be available to if Purchaser’s breach of any party whose failure to fulfill any obligation representation, warranty, covenant or agreement under this Agreement has been the cause of, or resulted in, results in the failure of any condition set forth in Section 7 to consummate be satisfied by such time on the transactions contemplated by this Agreement on or before such dateEnd Date;
(c) by either NBC Seller if the Closing has not taken place on or Xenon 2 before 5:00 p.m. (Eastern Time) on the End Date and any condition set forth in Section 8 has not been satisfied or waived as of the time of termination; provided, however, that Seller shall not be entitled to terminate this Agreement pursuant to this Section 9.1(c) if a breach of any representation, warranty, covenant or agreement under this Agreement by Seller or any Acquired Company results in the failure of any condition set forth in Section 8 to be satisfied by such time on the End Date;
(d) by Purchaser or Seller if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Entity shall have issued a final and unappealable permanent injunctionnonappealable Order or shall have taken any other action, order, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the Membership Interest Purchase; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Membership Interest Purchase by any Governmental Entity that would make consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedMembership Interest Purchase illegal;
(e) by NBC if Purchaser if: (i) any representation or warranty of Seller contained in this Agreement shall be inaccurate as of the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation date of this Agreement, or shall have become inaccurate as of a date subsequent to the Xenon 2 Merger Agreement or date of this Agreement, such that any of the transactions contemplated hereby conditions set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company or thereby;Seller contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred; provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations or warranties of Seller as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company or Seller is curable by the Company or Seller through the use of reasonable efforts within 30 days after Purchaser notifies Seller in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Purchaser may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided that the Company or Seller continues to exercise reasonable efforts during the Company Cure Period to cure such inaccuracy or breach (it being understood that Purchaser may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period); or
(f) by NBC if Seller if: (i) any representations or warranties of Purchaser contained in this Agreement shall be inaccurate as of the Board date of Directors of Xoom shall have accepted or recommended a Takeover Proposal this Agreement, or shall have resolved become inaccurate as of a date subsequent to do so;
the date of this Agreement, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of the covenants of Purchaser contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any representations or warranties of Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by Purchaser is curable by Purchaser through the use of reasonable efforts within 30 days after Seller notifies Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then Seller may not terminate this Agreement under this Section 9.1(f) as a result of such inaccuracy or breach prior to the expiration of the Purchaser Cure Period, provided that Purchaser continues to exercise reasonable efforts during the Purchaser Cure Period to cure such inaccuracy or breach (it being understood that Seller may not terminate this Agreement pursuant to this Section 9.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Purchaser Cure Period); or (g) by Xoom Purchaser or Xenon 2Seller if, prior after a 10-day period immediately following delivery of written notice by Purchaser to the receipt Seller of a Price Renegotiation Event described in Schedule 9.1(g) (such notice, a “Price Renegotiation Event Notice”) within 10 days of the Xoom Stockholder Approvalanticipated Closing Date, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, Purchaser and Seller fail to agree to a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation mutually acceptable amendment to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on incorporating a reduced amount of Closing Consideration; provided that, for the advice avoidance of outside legal counsel that termination of doubt, Seller shall have no right to terminate this Agreement is required pursuant to comply with this Section 9.1(g) at any time after delivery of a Price Renegotiation Event Notice if Purchaser indicates in writing a willingness to pay the full Closing Consideration as set forth herein and irrevocably waives in a legally binding instrument its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating termination right pursuant to this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partySection 9.1(g).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (American Public Education Inc)
Termination Events. Without prejudice to other remedies which may Upon the occurrence of any of the following events (each, a "Termination Event") and whether any such Termination Event shall be ------------------ available to the parties voluntary or involuntary or come about or be effected by operation of law or this Agreementpursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, the non-defaulting party (as the case may be, the "Aggrieved Party") may elect to terminate this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timein accordance with Section 24 hereof:
(a) a party (the "Defaulting Party") fails to comply with the applicable Standard of Conduct and such failure continues unremedied for a period of twenty (20) days (or such longer period as determined by mutual the Aggrieved Party) after the date on which written consent notice of NBC such failure describing the nature of such failure and Xenon 2;requesting the same to be remedied shall have been given to the Defaulting Party by the Aggrieved Party; or
(b) by either NBC or Xenon 2 by written notice the Defaulting Party fails to meet the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause Targeted Service Levels for two (b2) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;consecutive fiscal quarters; or
(c) by either NBC the Defaulting Party fails to observe or Xenon 2 if to perform in any material respect any of its other covenants or agreements set forth herein, which failure shall (i) any Governmental Authoritymaterially and adversely, in the consent or approval of which is required for the consummation reasonable judgment of the transactions contemplated herebyAggrieved Party, shall have affect the rights of the Aggrieved Party hereunder or under any Lease and (ii) continue unremedied for a period of thirty (30) days (or such longer period as determined not to grant its consent or approval and all appeals by the Aggrieved Party) after the date on which written notice of such determination failure requesting the same to be remedied shall have been taken given to the Defaulting Party by the Aggrieved Party; or
(d) the Defaulting Party fails generally to pay its debts as they become due; or its dissolution, termination of existence, or discontinuance of business; or the insolvency, business failure or appointment of a receiver of any part of such party's property, or an assignment by such party for the benefit of creditors, or the commencement by or against it of any proceedings under any bankruptcy, reorganization or arrangement laws and, in the case of any involuntary proceedings, the continuance of such proceedings unstayed and have been unsuccessful in effect for sixty (60) days, or (ii) the assumption of custody or control by any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation over any substantial portion of the transactions contemplated herebyDefaulting Party's property, provided that and the party seeking to terminate this Agreement -------- under this clause same remaining in force unstayed or unterminated for sixty (c60) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;days; or
(e) by NBC if the Board Defaulting Party (i) enters into any transaction of Directors of Xoom merger or Xenon 2 consolidation or any committee thereof shall have withdrawn commitment with respect thereto, unless it is the surviving corporation, after giving effect to such merger or modified in a manner adverse consolidation, its tangible net worth is equal to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, greater than that which existed immediately prior to the receipt merger or consolidation and the ratio of its debt to tangible net worth is not greater than that which existed immediately prior to the merger or consolidation and the person with whom it merges or consolidates is not a competitor of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and other party; (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBCsells, where Xenon 2 is terminating this Agreementtransfers, or otherwise disposes of all or substantially all of its assets; (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Operating Agreement (Pitney Bowes Office Systems Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties This Agreement shall terminate, and any action or consent taken or given by law any party hereto in furtherance of or this Agreement, reliance upon this Agreement may (including any vote in favor of the Joint Plan of Reorganization and any execution or deemed execution of the Stockholders’ Agreement) shall be terminated null and the transactions contemplated herein may be abandoned at any time prior to the Effective Timevoid upon:
(a) by mutual The occurrence of a Material Adverse Change and written consent notice from the Consenting Lock-up Noteholders of NBC and Xenon 2their respective termination of this Agreement based upon the occurrence of a Material Adverse Change;
(b) Unless approved in advance or subsequently ratified by either NBC the Consenting Lock-up Noteholders, the Joint Plan of Reorganization or Xenon 2 by written notice any other Restructuring Document contains terms that are materially inconsistent with, or less favorable to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted inNoteholders than, the failure to consummate terms and conditions set forth in the transactions contemplated by this Agreement on Restructuring Term Sheet or before such datethe other Restructuring Documents;
(c) Any representation or warranty made by either NBC the Company in this Agreement or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination Restructuring Documents shall have been taken and have been unsuccessful untrue in any material respect when made or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunctioncome untrue in any material respect, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material any breach of this Agreement and provided, further, that any covenant or material provision hereof by the right to terminate this Agreement under this clause -------- ------- (c) Company shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingoccurred;
(d) by either NBC The Company’s failure to pay the reasonable pre-petition or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereofpost-petition fees and expenses, when due, of the financial advisor and the counsel to the Informal Noteholders’ Committee; provided, however, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or payment of any adjournment thereofsuch post-petition fees and expenses will be subject to Bankruptcy Court approval, and only to the Xenon 2 Stockholder Approval shall not have been obtainedextent so approved;
(e) by NBC if The Company’s failure to file prior to 9:00 a.m. on November 16, 2004 its Form 10-Q with the Board of Directors of Xoom Securities & Exchange Commission which contains either the Restructuring Term Sheet as an exhibit, or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any summary of the transactions contemplated hereby or thereby;terms of the Restructuring Term Sheet.
(f) The day preceding the filing of any bankruptcy or insolvency proceeding involving the Company other than the Bankruptcy Proceedings contemplated by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;this Agreement; or
(g) by Xoom or Xenon 2, prior Notwithstanding anything in this Section 6 to the receipt contrary, this Agreement shall automatically terminate on April 30, 2005 without the requirement of any further action by any of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines parties hereto unless extended in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given writing by the nonCompany and the Consenting Lock-breaching partyup Noteholders.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Lock Up Agreement (Syratech Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Horizon and Xenon 2Nitec;
(b) by either NBC or Xenon 2 by written notice to the other parties Horizon if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before such date5:00 p.m. (US Pacific time) on April 30, 2010 (other than as a result of any failure on the part of Holdco or Horizon to comply with or perform any covenant or obligation of Holdco or Horizon set forth in this Agreement, the other Transactional Agreements or in any other agreement or instrument delivered to Nitec in connection with the Contemplated Transactions);
(c) by Nitec if the Closing has not taken place on or before 5:00 p.m. (US Pacific time) on April 30, 2010 (other than as a result of any failure on the part of Nitec or the Nitec Shareholders to comply with or perform any covenant or obligation set forth in this Agreement or in any other agreement or instrument delivered to Horizon in connection with the Contemplated Transactions);
(d) by either NBC Horizon or Xenon 2 if Nitec if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Contemplated Transactions; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Contemplated Transactions by any Governmental Body that would make consummation of the such transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedillegal;
(e) by NBC if Horizon if: (i) any of the Board representations and warranties of Directors Nitec or the Nitec Shareholders contained in this Agreement shall be inaccurate as of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation the date of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior become inaccurate as of a date subsequent to the receipt date of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default such that any of the conditions set forth in Section 9.1 would not be satisfied; or (ii) any of the covenants of Nitec or the Nitec Shareholders contained in this Agreement shall have been breached such that the condition set forth in Section 9.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of Nitec and the Nitec Shareholders as of a date subsequent to the date of this Agreement or a breach of a covenant by Nitec or the Nitec Shareholders is not curable, curable by Nitec or if curable, is not cured a Nitec Shareholder through the use of reasonable efforts within 30 days after written notice Horizon notifies Nitec in writing of the existence of such inaccuracy or breach (the “Nitec Cure Period”), then Horizon may not terminate this Agreement under this Section 11.1(e) as a result of such inaccuracy or breach prior to the expiration of the Nitec Cure Period, provided Nitec and the Nitec Shareholders, during the Nitec Cure Period, continue to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Horizon may not terminate this Agreement pursuant to this Section 11.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is given cured prior to the expiration of the Nitec Cure Period); or
(f) by the non-breaching party.
Nitec if: (i) automatically any of Holdco’s, Horizon’s or any Horizon Stockholder’s representations and without any action by the parties upon the termination warranties contained in this Agreement shall be inaccurate as of the Xenon 2 Merger date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement, in each case such that the condition set forth in Section 10.1 would not be satisfied; or (ii) any of Holdco’s, Horizon’s or any Horizon Stockholder’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 10.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of Holdco, Horizon and the Horizon Stockholders as of a date subsequent to the date of this Agreement or a breach of a covenant by Holdco, Horizon or the Horizon Stockholders is curable by Holdco, Horizon or such Horizon Stockholder through the use of reasonable efforts within 30 days after Nitec notifies Holdco or Horizon in writing of the existence of such inaccuracy or breach (the “Horizon Cure Period”), then Nitec may not terminate this Agreement under this Section 11.1(f) as a result of such inaccuracy or breach prior to the expiration of the Horizon Cure Period, provided Holdco, Horizon and the Horizon Stockholders, during the Horizon Cure Period, continue to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Nitec may not terminate this Agreement pursuant to this Section 11.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Horizon Cure Period).
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may This Agreement shall terminate and be ------------------ available to of no further force or effect, upon the parties by law occurrence of any of the following:
(i) Any regulatory authority whose consent or this Agreement, this Agreement may be terminated and approval is necessary for consummation of the transactions contemplated herein may hereby shall have issued a final order denying or refusing to grant any such approval or consent or shall have granted such approval but shall have imposed conditions that are or would become applicable to either Seller or Buyer that either Seller or Buyer reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ to be abandoned at any time prior materially burdensome to the Effective Time:it; or
(aii) by mutual written consent Mutual agreement of NBC and Xenon 2;the parties evidenced in writing; or
(biii) by Immediately upon the expiration of thirty (30) days from the date that either NBC or Xenon 2 by written party hereto has given notice to the other parties party hereto of such other party's material breach or misrepresentation of any condition, warranty, representation or covenant herein; provided, however, that no such termination shall take effect if within said thirty (30) day period the party so notified shall have corrected in all material respects the grounds for termination as specified in the aforementioned notice; or
(iv) Written notice by Buyer or Seller to the other party if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement Closing shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement have taken place on or before ninety (90) days from the date of this Agreement, other than by reason of a matter within the control of the person asserting such termination provided that if, as of such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required all regulatory approvals necessary for the consummation of the transactions contemplated herebyhereunder have been received but the Closing cannot take place because any applicable waiting period has not expired, the parties agree that this Agreement shall have determined not to grant its consent or approval and all appeals be extended for such period as shall be required for the expiration of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued waiting period and, within a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereoftime thereafter, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawClosing; or
(hv) Written notice by either NBC Buyer or Xenon 2 in Seller given to the event there has been other party after entry of a material default final, restraining order or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by injunction prohibiting the non-breaching party.
(i) automatically and without any action by the parties upon the termination assumption of the Xenon 2 Merger AgreementAccounts.
Appears in 1 contract
Sources: Deposit Assumption and Loan Purchase Agreement (Nara Bancorp Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available Anything contained in this Agreement to the parties by law or this Agreementcontrary notwithstanding, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by either Sellers or Buyer:
(i) if a Governmental Authority issues a final, non-appealable ruling or Order prohibiting the transactions contemplated hereby where such ruling or Order was not requested, encouraged or supported by any of Sellers or Buyer;
(ii) by mutual written consent of NBC Sellers and Xenon 2Buyer;
(biii) if the Closing shall not have occurred by either NBC the close of business on March 31, 2016 (the “Outside Date”); provided, however, that (A) Buyer shall be permitted to terminate this Agreement pursuant to this Section 11.1(a)(iii) only if (x) Buyer is not itself in material breach of any of its representations, warranties, covenants or Xenon 2 by agreements contained herein and (y) Buyer has provided written notice to the other parties if the transactions contemplated by Sellers of its intention to exercise its rights under this Agreement Section 11.1(a)(iii) and Sellers have not been consummated by December 31provided written notice to Buyer that they are ready, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder willing and provided, further, that the right able to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate close the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which date that is required for five Business Days after the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals date of such determination notice from Buyer, and (B) Sellers shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking be permitted to terminate this Agreement -------- under pursuant to this clause Section 11.1(a)(iii) only if (cx) is Sellers are not then themselves in material breach of this Agreement any of their representations, warranties, covenants or agreements contained herein and provided, further, that the right (y) Sellers have provided written notice to terminate this Agreement Buyer of their intention to exercise their rights under this clause -------- ------- (cSection 11.1(a)(iii) shall and Buyer has not be available provided written notice to any party who shall not have used reasonable commercial efforts Sellers that it is ready, willing and able to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than close the transactions contemplated by this Agreement and on or before the date that is five (ii5) concludes in good faith based on Business Days after the advice date of outside legal counsel that termination such notice from Sellers; Table of this Agreement is required to comply with its fiduciary duties under applicable lawContents
(iv) if Sellers withdraw the Sale Motion, or file any stand-alone plan of reorganization or liquidation (or support any such plan filed by any other party); or
(hv) if the Bankruptcy Court enters an Order dismissing, or converting into cases under chapter 7 of the Bankruptcy Code, any of the cases commenced by either NBC or Xenon 2 in Sellers under chapter 11 of the event there has been a material default or breach by (x) NBCBankruptcy Code and comprising part of the Bankruptcy Case, where Xenon 2 is terminating this Agreementsuch Order was not requested, encouraged or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given supported by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.Sellers;
Appears in 1 contract
Sources: Asset Purchase Agreement (Quicksilver Resources Inc)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC the Purchaser and Xenon 2the Selling Shareholders;
(b) by either NBC the Purchaser or Xenon 2 by written notice to the other parties Selling Shareholders if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before 5:00 p.m. (U.S. Pacific time) on March 15, 2008 (other than as a result of any failure on the part of the Party wishing to terminate to comply with or perform any covenant or obligation set forth in this Agreement (or in any other agreement or instrument entered into by such dateParty in connection with the Contemplated Transactions);
(c) by either NBC the Purchaser or Xenon 2 if the Selling Shareholders if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Contemplated Transactions; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Contemplated Transactions by any Governmental Body that would make consummation of the such transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingillegal;
(d) by either NBC the Purchaser if: (i) any of the representations and warranties of any of the Selling Shareholders contained in this Agreement shall be inaccurate as at the date of this Agreement, or Xenon 2 if upon a vote shall have become inaccurate as at a duly held Xoom Stockholders Meeting date subsequent to the date of this Agreement, such that any of the conditions set forth in Section 7.1 would not be satisfied; or (ii) any adjournment thereof, of the Xoom Stockholder Approval covenants of any of the Selling Shareholders contained in this Agreement shall not have been obtained or by NBC breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if upon a vote an inaccuracy in any of the representations and warranties of any of the Selling Shareholders as at a duly held Xenon 2 Stockholders Meeting date subsequent to the date of this Agreement or a breach of a covenant by any adjournment thereofof the Selling Shareholders is curable by a Selling Shareholder through the use of commercially reasonable efforts within 30 days after the Purchaser notifies the Selling Shareholder in writing of the existence of such inaccuracy or breach (the “Selling Shareholders Cure Period”), then the Xenon 2 Stockholder Approval shall Purchaser may not have been obtained;terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Selling Shareholders Cure Period, provided the Selling Shareholders, during the Selling Shareholders Cure Period, continue to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Purchaser may not 37 terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Selling Shareholders Cure Period); or
(e) by NBC if the Board Selling Shareholders if: (i) any of Directors of Xoom or Xenon 2 or any committee thereof the Purchaser’s representations and warranties contained in this Agreement shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation be inaccurate as at the date of this Agreement, or shall have become inaccurate as at a date subsequent to the Xenon 2 Merger Agreement date of this Agreement, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom Purchaser’s covenants contained in this Agreement shall have accepted or recommended been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of the Purchaser’s representations and warranties as at a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior date subsequent to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination date of this Agreement or a breach of a covenant by the Purchaser is required to comply with its fiduciary duties under applicable law; or
(h) curable by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured Purchaser through the use of commercially reasonable efforts within 30 days after written notice the Selling Shareholders notify the Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Selling Shareholders may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Purchaser Cure Period, provided the Purchaser, during the Purchaser Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Selling Shareholders may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is given by cured prior to the non-breaching party.
(i) automatically and without any action by the parties upon the termination expiration of the Xenon 2 Merger AgreementPurchaser Cure Period).
Appears in 1 contract
Sources: Share Purchase Agreement
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC the Purchaser and Xenon 2the Selling Shareholders;
(b) by either NBC the Purchaser or Xenon 2 by written notice to the other parties Selling Shareholders if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before 5:00 p.m. (U.S. Pacific time) on March 15, 2008 (other than as a result of any failure on the part of the Party wishing to terminate to comply with or perform any covenant or obligation set forth in this Agreement (or in any other agreement or instrument entered into by such dateParty in connection with the Contemplated Transactions);
(c) by either NBC the Purchaser or Xenon 2 if the Selling Shareholders if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Contemplated Transactions; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Contemplated Transactions by any Governmental Body that would make consummation of the such transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingillegal;
(d) by either NBC the Purchaser if: (i) any of the representations and warranties of any of the Selling Shareholders contained in this Agreement shall be inaccurate as at the date of this Agreement, or Xenon 2 if upon a vote shall have become inaccurate as at a duly held Xoom Stockholders Meeting date subsequent to the date of this Agreement, such that any of the conditions set forth in Section 7.1 would not be satisfied; or (ii) any adjournment thereof, of the Xoom Stockholder Approval covenants of any of the Selling Shareholders contained in this Agreement shall not have been obtained or by NBC breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if upon a vote an inaccuracy in any of the representations and warranties of any of the Selling Shareholders as at a duly held Xenon 2 Stockholders Meeting date subsequent to the date of this Agreement or a breach of a covenant by any adjournment thereofof the Selling Shareholders is curable by a Selling Shareholder through the use of commercially reasonable efforts within 30 days after the Purchaser notifies the Selling Shareholder in writing of the existence of such inaccuracy or breach (the “Selling Shareholders Cure Period”), then the Xenon 2 Stockholder Approval shall Purchaser may not have been obtained;terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Selling Shareholders Cure Period, provided the Selling Shareholders, during the Selling Shareholders Cure Period, continue to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Purchaser may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Selling Shareholders Cure Period); or
(e) by NBC if the Board Selling Shareholders if: (i) any of Directors of Xoom or Xenon 2 or any committee thereof the Purchaser’s representations and warranties contained in this Agreement shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation be inaccurate as at the date of this Agreement, or shall have become inaccurate as at a date subsequent to the Xenon 2 Merger Agreement date of this Agreement, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom Purchaser’s covenants contained in this Agreement shall have accepted or recommended been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of the Purchaser’s representations and warranties as at a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior date subsequent to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination date of this Agreement or a breach of a covenant by the Purchaser is required to comply with its fiduciary duties under applicable law; or
(h) curable by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured Purchaser through the use of commercially reasonable efforts within 30 days after written notice the Selling Shareholders notify the Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Selling Shareholders may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Purchaser Cure Period, provided the Purchaser, during the Purchaser Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Selling Shareholders may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is given by cured prior to the non-breaching party.
(i) automatically and without any action by the parties upon the termination expiration of the Xenon 2 Merger AgreementPurchaser Cure Period).
Appears in 1 contract
Sources: Share Purchase Agreement (Applied Materials Inc /De)
Termination Events. Without prejudice The Agreement may, by notice given prior to other remedies which may or at the Closing, be ------------------ available to terminated as follows:
(a) Upon the parties by law or this Agreementmutual written consent of the Prospect Parties and the Northwest Parties, this Agreement may be terminated on such terms and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;conditions as agreed; or
(b) by either NBC or Xenon 2 by By written notice of the Prospect Parties to the other parties Northwest Parties if any Northwest Party breaches in any material respect any of its representations or warranties or defaults in any material respect in the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement observance or in the due and timely performance of the parties hereto, provided that the party terminating this Agreement any of its covenants or agreements herein contained and such breach or default shall not be in material -------- cured within 30 days of the date of notice of breach or default or breach hereunder and provided, further, that served by the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;Prospect Parties; or
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation By written notice of the transactions contemplated herebyNorthwest Parties to the Prospect Parties, if any Prospect Party breaches in any material respect any of its representations or warranties or defaults in any material respect in the observance or in the due and timely performance of any of its covenants or agreements herein contained and such breach or default shall have determined not be cured within 30 days of the date of notice of breach or default served by the Northwest Parties; or
(d) By written notice of the Prospect Parties to grant its consent the Northwest Parties, or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) by the Northwest Parties to the Prospect Parties if any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, any order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) action restraining, enjoining or otherwise prohibiting the contemplated transactions; or
(e) By written notice of the Prospect Parties to the Northwest Parties if any court, legislative body or governmental or regulatory authority has taken, or is reasonably expected to take, any action that would make the consummation of the transactions contemplated hereby, provided that hereby inadvisable or undesirable as determined by the party seeking to terminate this Agreement -------- under this clause (c) is not then Prospect Parties in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;their sole discretion; or
(f) by NBC By written notice of the Prospect Parties to the Northwest Parties if it shall become apparent in the Board judgment of Directors the Prospect Parties reasonably exercised that any condition to the obligation of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved the Prospect Parties to do so;
(g) by Xoom or Xenon 2close, to which Northwest is obligated to perform as set forth in Section 6 will in fact not be satisfied prior to the receipt Closing Date (following prior notification of such judgment by the Prospect Parties and a 30 day cure period in favor of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which Northwest Parties and the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation failure thereafter to be more favorable provide reasonable assurance to the Xoom stockholders than Prospect Parties that such condition will in fact be satisfied prior to the transactions contemplated by this Agreement and (ii) concludes Closing Date). Notwithstanding the foregoing, no party hereto may effect a termination hereof at such time such party is in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating of this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC Purchaser and Xenon 2Seller;
(b) by either NBC Purchaser or Xenon 2 by written notice to the other parties Seller if the transactions contemplated by this Agreement Share Transfer shall not have not been consummated by December 31April 15, 19992013 (the “Outside Date”); provided, unless extended by written agreement of the parties heretohowever, provided that the that, a party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right permitted to terminate --------- ------- this Agreement under pursuant to this clause (bSection 8.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, if the failure to consummate the transactions contemplated Share Transfer by the Outside Date is attributable to a failure on the part of such party to perform any covenant or obligation in this Agreement on that is required to be performed by such party at or before such dateprior to the Closing Date;
(c) by either NBC Purchaser or Xenon 2 Seller if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated herebyShare Transfer; provided, provided however, that the party seeking to terminate this Agreement -------- under pursuant to this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (cSection 8.1(c) shall not be available to any party who shall not have used its commercially reasonable commercial efforts to avoid the issuance of contest, appeal and remove such order, decree decree, ruling or rulingother action;
(d) by either NBC Purchaser if Seller or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting the Company breaches any of its representations, warranties, or covenants hereunder and such breach would cause any adjournment thereof, of the Xoom Stockholder Approval shall conditions set forth in Section 7.2(a) or Section 7.2(b) not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedto be satisfied;
(e) by NBC Seller if the Board Purchaser breaches any of Directors of Xoom its representations, warranties, or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or covenants hereunder and such breach would cause any of the transactions contemplated hereby conditions set forth in Section 7.3(a) or therebySection 7.3(b) not to be satisfied;
(f) by NBC if either Purchaser or Seller if: (i) the Board of Directors of Xoom Shareholder Meeting (including any adjournments and postponements thereof) shall have accepted or recommended a Takeover Proposal or been held and completed and Seller’s shareholders shall have resolved taken a final vote on a proposal to do soadopt and approve this Agreement; and (ii) this Agreement shall not have been adopted and approved at the Shareholder Meeting (and shall not have been adopted and approved at any adjournment or postponement thereof) by the required Shareholder Approval;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, Purchaser if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom : (i) determines Seller or the Company shall have materially breached or failed to perform, in good faith and after consultation with any material respect, any of its obligations set forth in Section 4.3, 4.4 or 4.6 in a financial advisor of nationally recognized reputation manner adverse to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and Purchaser; (ii) concludes in good faith based on an Adverse Recommendation Change occurs; (iii) Seller or the advice Seller Board (or any committee thereof) shall publicly approve or publicly recommend, or cause or permit Seller or the Company to enter into, an Alternative Acquisition Agreement relating to an Acquisition Proposal; or (iv) Seller or the Seller Board (or any committee thereof) fails publicly to reaffirm its recommendation of outside legal counsel the Transaction within 10 business days after the date any Acquisition Proposal or any material modification thereto is first publicly announced to Seller’s shareholders upon a request to do so by Purchaser (it being agreed that termination of this Agreement is required Purchaser may make only one such request with respect to comply with its fiduciary duties under applicable law; orany single Acquisition Proposal or modification thereof);
(h) by either NBC or Xenon 2 Seller, at any time prior to obtaining the Shareholder Approval, in order to accept a Superior Offer in accordance with Section 4.4(a); provided, however, that Seller shall have (i) simultaneously with such termination entered into the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this associated Alternative Acquisition Agreement, or (yii) Xoom or Xenon 2otherwise complied with all provisions of Section 4.4(a), where NBC is terminating this Agreementincluding the notice provision, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.and (iii) paid any amounts due pursuant to Section 8.5;
(i) automatically by Seller, at any time prior to the Closing Date, in the event that Purchaser notifies Seller that it no longer believes in good faith that it will be able to obtain the Financing; and
(j) by Purchaser, at any time prior to the Closing Date, in the event that (i) the Tax Conditions are not satisfied; and without any action by (ii) the parties upon Tax Deficit as set forth in the termination of the Xenon 2 Merger AgreementSection 382 Study is greater than $5,000,000.00.
Appears in 1 contract
Termination Events. Without prejudice (a) This Agreement shall automatically terminate upon the occurrence of any of the following events (the “Termination Events”), unless such automatic termination is waived in writing by the Requisite Consenting Lenders and the Company, within three (3) days of the occurrence of such event, and in accordance with the requirements of Section 4, in which case the Termination Event so waived shall be deemed not to other remedies which may be ------------------ available to the parties by law or this Agreementhave occurred, this Agreement may shall be terminated deemed to continue in full force and effect, and the transactions contemplated herein may rights and obligations of the Parties hereto shall be abandoned at restored, subject to any time prior modification set forth in such waiver; provided, however, that the concurrence of the Company and TIL, but not of any of the Requisite Consenting Lenders, shall be required with respect to the Effective Time:
(a) by mutual written consent waiver of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice any automatic termination to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31extent that such automatic termination occurs pursuant to paragraphs (vi), 1999(vii), unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and (viii) below; provided, further, that the right concurrence of Requisite Consenting Lenders, but not Worldwide, the Company or TIL, shall be required with respect to terminate --------- ------- this Agreement under this clause (b) shall not be available the waiver of any automatic termination to the extent that such automatic termination occurs pursuant to any party whose failure to fulfill any obligation under this Agreement of paragraphs (v) or (x) below.
(i) In the event the Restructuring has not been the cause ofcompleted by May 10, or resulted in2013, the failure to consummate provided, however, if the transactions contemplated by the PIK Restructuring Documents are not consummated May 10, 2013, but the restructuring transactions contemplated by the Restructuring Documents (other than the PIK Restructuring Documents) have closed by May 10, 2013, this Agreement on or before such datemay not be terminated pursuant to this subsection prior to July 26, 2013;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) A court of competent jurisdiction shall enter a final, non-appealable judgment or order declaring this Agreement or any material portion hereof to be unenforceable;
(iii) Any governmental authority, including any court of competent jurisdiction or regulatory authority, grants relief that is inconsistent with this Agreement in any material respect (with such amendments and modifications as have been effected in accordance with the United States shall have issued a final and unappealable permanent injunction, order, judgment terms hereof) or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of a material portion of the transactions contemplated herebyRestructuring;
(iv) The entry of an order by any court of competent jurisdiction invalidating or disallowing any portion of the Claims or subordinating or limiting, as applicable, the enforceability, priority, amount or validity of any portion of the Claims;
(v) Any material breach of this Agreement by the Company or Worldwide; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by such Party of such breach from the Requisite Consenting Lenders of such breach (provided that the party seeking to terminate none of the Initial Consenting Lenders or Requisite Consenting Lenders are then in material breach of its obligations hereunder), and such breach, if capable of being cured, remains uncured for a period of five (5) business days;
(vi) Any material breach of this Agreement -------- by a Consenting Lender; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by the Consenting Lenders of such breach from either the Company or Worldwide (provided that the Party giving notice of a breach by a Consenting Lender is not itself in material breach of its obligations hereunder) and such breach, if capable of being cured, remains uncured for a period of five (5) business days;
(vii) Immediately upon delivery by any of the Company or Worldwide (collectively, the “Notifying Parties” and each, a “Notifying Party”) to the Consenting Lenders of notice (in accordance with Section 27 below) of its intent, in the exercise of its fiduciary duties (set forth in Section 18 below) to take any action that is otherwise prohibited hereunder or to refrain from taking any action that is required hereunder (a “Fiduciary Out Notice”); provided, however that no Notifying Party shall have or incur any liability under this clause Agreement or otherwise on account of, arising out of or otherwise relating to any other Notifying Party’s issuance of a Fiduciary Out Notice;
(cviii) Following good faith, commercially reasonable efforts, the Board of Directors of the Company’s direct subsidiary, Travelport Limited, shall have not received by March 11, 2013, fairness and solvency opinions from a nationally recognized valuation firm for those entities to which a fairness and/or solvency opinion is not then reasonably requested to consummate the Restructuring and in form and substance reasonably acceptable to the Company and sufficient under applicable law, in each case, for such purpose;
(ix) By mutual written consent of the Company and the Requisite Consenting Lenders;
(x) The occurrence of an Event of Default under the PIK Credit Agreement (as defined therein), other than as a result of the Company’s entry into this Agreement or the taking of any actions required or contemplated by, and consistent with, the terms of this Agreement; or
(xi) The Senior Noteholder RSA is no longer in full force and effect for at least 33%, collectively, of the holders of (1) Travelport LLC’s 9 7/8% Senior Dollar Fixed Rate Notes due 2014, Senior Dollar Floating Rate Notes due 2014 and Senior Euro Floating Rate Notes due 2014 and (2) Travelport LLC’s and Travelport Inc.’s 9% Senior Notes due 2016.
(b) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., Q5-R5 Trading, Ltd. and R2 Top Hat, Ltd. shall have the right to withdraw their consent to this Agreement if TIL is in material breach of this Agreement and provided, further, that such breach is not being contested by the right to terminate this Agreement under this clause -------- ------- Company.
(c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon Upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required in accordance with this Section 8, no Party hereto shall have any continuing liability or obligation to comply with its fiduciary duties under applicable law; or
(h) by either NBC any other Party hereunder and the provisions of this Agreement shall have no further force or Xenon 2 effect, except for the provisions in the event there has been a material default or breach by (x) NBCSections 10 and 11 and 13 through 25, where Xenon 2 is terminating each of which shall survive termination of this Agreement, ; provided that no such termination shall relieve any Party from liability for its breach or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice non-performance of its obligations hereunder prior to the date of such breach is given by the non-breaching partytermination (other than as set forth in clauses (a)(vii) and (a)(viii) above).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available Subject to the parties by law or this Agreementprovisions of Section 9.2, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC the Sellers and Xenon 2the Buyer;
(b) by either NBC the Sellers or Xenon 2 the Buyer by giving written notice to the other parties if the transactions contemplated Closing shall not have occurred by this Agreement have not been consummated by December 31, 1999the Drop Dead Date, unless extended by written agreement of the parties hereto, Sellers and the Buyer; provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause subsection (b) shall not be available to any party Party whose failure to fulfill any obligation under this Agreement in all material respects has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such datethe Drop Dead Date;
(c) by either NBC the Sellers or Xenon 2 the Buyer by giving written notice to the other Party if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States Authority shall have issued a final and unappealable permanent injunction, an order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) Action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated herebyby this Agreement, provided and such order, decree, ruling or other Action shall not be subject to appeal or shall have become final and unappealable; provided, that the party Party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement shall have used its commercially reasonable efforts to remove or lift such order, decree, ruling or other Action, if it has standing to do so, before it became final and unappealable, and, provided, further, that the right to terminate pursuant to this Agreement under this clause -------- ------- (cSection 9.1(c) shall is not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance Party whose breach of any provision of this Agreement results in or causes such order, decree decree, ruling or rulingother Action, or (ii) there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited;
(d) by either NBC the Buyer by written notice to the Sellers if the Buyer is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or Xenon 2 failure to perform any representation, warranty, covenant or agreement made by the Company or the Sellers pursuant to this Agreement that would give rise to the failure of any of the conditions set forth in Sections 7.1 or 7.3 and such breach, inaccuracy or failure is not curable or, if upon a vote at a duly held Xoom Stockholders Meeting curable, it has not been cured by the Company or any adjournment thereofthe Sellers, as the Xoom Stockholder Approval shall not have been obtained case may be, on or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, before the Xenon 2 Stockholder Approval shall not have been obtained;Drop Dead Date; or
(e) by NBC the Sellers by written notice to the Buyer if the Board Sellers and the Company are not then in material breach of Directors any provision of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default breach, inaccuracy in or breach failure to perform any representation, warranty, covenant or agreement made by (x) NBCthe Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions set forth in Section 7.2 and such breach, where Xenon 2 is terminating this Agreement, inaccuracy or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach failure is not curablecurable or, or if curable, is it has not been cured within 30 days after written notice of such breach is given by the non-breaching partyBuyer on or before the Drop Dead Date.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kapstone Paper & Packaging Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to Closing upon prior written notice by the Effective Timeparty electing to terminate this Agreement to the other party:
(a) by mutual written consent agreement of NBC HCA and Xenon 2Purchaser (expressed in writing);
(b) by either NBC HCA or Xenon 2 by written notice Purchaser if any permanent injunction, Court Order or other order, decree or ruling of any court or other Governmental Authority of competent jurisdiction permanently restraining, enjoining or otherwise preventing the consummation of the transactions contemplated hereby shall have been issued and become final and non-appealable; provided, however, that any such injunction, Court Order or other order, decree or ruling that affects only a portion of the Acquired Entities (or the transactions contemplated hereby with respect to only a portion of the Acquired Entities) will not enable HCA or Purchaser to terminate this Agreement with respect to the other parties Acquired Entities if and to the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement extent a Closing on a portion of the parties hereto, provided that the party terminating this Agreement shall not Acquired Entities would still be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement possible under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateSection 2.6;
(c) by either NBC HCA or Xenon 2 Purchaser if (i) any Governmental Authority, the consent or approval of which is required for Closing shall not have occurred by the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and Optional Termination Date; provided, furtherhowever, that the right to terminate this Agreement under this clause -------- ------- (cSection 10.1(c) shall not be available to any party whose breach of its representations and warranties in this Agreement or whose failure to perform any of its covenants and agreements under this Agreement shall have been a contributing cause of, or resulted in, the failure of the Closing to occur on or before the Optional Termination Date; and provided further that the Optional Termination Date shall be extended through March 31, 2006 for any party who shall has complied with or performed, or who is in a position to comply with or perform, all conditions to the other party’s obligations other than receipt of the certificates of need required for the consummation of the transaction and if the required certificates of need have not have used reasonable commercial efforts been received by March 31, 2006 the parties will work together in good faith to avoid determine whether to further extend the issuance of such order, decree or ruling;Optional Termination Date to a later time.
(d) by either NBC or Xenon 2 if HCA upon a vote at a duly held Xoom Stockholders Meeting breach in any material respect of any covenant or agreement on the part of the Purchaser set forth in this Agreement, or if any representation or warranty of the Purchaser shall have been breached or shall have become untrue, in any such case that the conditions set forth in Sections 8.1 and 8.2 would be incapable of being satisfied by the Optional Termination Date (or any adjournment thereof, later termination date specified in this Agreement or as may be otherwise extended by mutual agreement of the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;parties).
(e) by NBC if the Board Purchaser upon a breach in any material respect of Directors of Xoom any covenant or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based agreement on the advice part of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 any Seller set forth in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom if any representation or Xenon 2, where NBC is terminating this Agreement, warranty of any Seller shall have been breached or shall have become untrue in each any such case which default or breach is not curable, or if curable, is not cured within 30 days after written notice such that the conditions set forth in Sections 7.1 and 7.2 would be incapable of such breach is given being satisfied by the non-breaching party.
Optional Termination Date (i) automatically and without or any action later termination date specified in this Agreement or as may be otherwise extended by the parties upon the termination mutual agreement of the Xenon 2 Merger Agreementparties).
Appears in 1 contract
Sources: Stock Purchase Agreement (Lifepoint Hospitals, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after adoption of this Agreement by the Required Company Stockholder Vote):
(a) by mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 by written notice to the other parties Company if the transactions contemplated by this Agreement Merger I shall not have not been consummated by December 31February 28, 1999, 2003 (the “Termination Date”) (unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate Merger I is primarily caused by a failure on the transactions contemplated by part of the party seeking to terminate this Agreement on to perform any material obligation required to be performed by such party at or before such dateprior to the Effective Time of Merger I);
(c) by either NBC Parent or Xenon 2 the Company if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingeither Merger;
(d) by either NBC Parent or Xenon 2 the Company if upon (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and the Company’s stockholders shall have taken a final vote at on a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval proposal to adopt this Agreement and (ii) this Agreement shall not have been obtained or by NBC if upon a vote adopted at a duly held Xenon 2 Stockholders the Company Stockholders’ Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval (and shall not have been obtainedadopted at any adjournment or postponement thereof) by the Required Company Stockholder Vote; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d) if the failure to have this Agreement adopted by the Required Company Stockholder Vote is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Effective Time of Merger I;
(e) by NBC Parent (at any time prior to the adoption of this Agreement by the Required Company Stockholder Vote) if the Board of Directors of Xoom or Xenon 2 or any committee thereof a Triggering Event shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or therebyoccurred;
(f) by NBC Parent if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines any of the Company’s representations and warranties contained in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on shall be inaccurate as of the advice date of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (yas if made on such subsequent date) Xoom except for those representations and warranties that address matters only as of a particular date (which representations and warranties shall have been accurate as of such date), such that the condition set forth in Section 7.1 would not be satisfied or Xenon 2(ii) any of the Company’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, where NBC however, that if such inaccuracy in the Company’s representations and warranties or a breach of a covenant by the Company is terminating curable by the Company through the exercise of commercially reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement, in each case which default Agreement under this Section 9.1(f) on account of such inaccuracy or breach is not curable, or if curable, is not cured within 30 days after until the earlier of (A) the expiration of a fourteen (14) day period commencing upon delivery of written notice from Parent to the Company of such breach is given or inaccuracy and (B) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(f) as a result of such particular breach or inaccuracy if such breach by the non-breaching party.
(i) automatically and without any action by the parties upon the Company is cured prior to such termination of the Xenon 2 Merger Agreement.becoming effective); or
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC Parent, the Purchaser and Xenon 2the Seller;
(b) by either NBC Parent and the Purchaser or Xenon 2 by written notice to the other parties Seller if the transactions contemplated by this Agreement Transactions shall not have not been consummated by December 31June 30, 19992003 (the “Termination Date”); provided, unless extended by written agreement of the parties heretohowever, provided that the a party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right permitted to terminate --------- ------- this Agreement under pursuant to this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, Section 0 if the failure to consummate the transactions contemplated Transactions by the Termination Date is attributable to a failure on the part of such party to perform any covenant in this Agreement on required to be performed by such party at or before such dateprior to the Closing Date;
(c) by either NBC Parent and the Purchaser or Xenon 2 the Seller if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, non-appealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingTransactions;
(d) by either NBC or Xenon 2 Parent and the Purchaser if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval Triggering Event shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedoccurred;
(e) by NBC Parent and the Purchaser if (i) any of the Board Seller’s representations and warranties contained in this Agreement shall be inaccurate as of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation the date of this Agreement, or shall have become inaccurate as of a date subsequent to the Xenon 2 Merger date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 0 hereof would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, any update of or modification to the Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), or (ii) any of the transactions contemplated hereby Seller’s covenants contained in this Agreement shall have been breached in any material respect such that the condition set forth in Section 0 hereof would not be satisfied; provided, however, that if an inaccuracy in any of the Seller’s representations and warranties as of a date subsequent to the date of this Agreement or thereby;a breach of a covenant by the Seller is curable by the Seller and the Seller is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent and the Purchaser may not terminate this Agreement under this Section 0 on account of such inaccuracy or breach; or
(f) by NBC the Seller if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines any of the representations and warranties of Parent and the Purchaser contained in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on shall be inaccurate as of the advice date of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (y) Xoom or Xenon 2as if made on such subsequent date), where NBC is terminating this Agreement, such that the condition set forth in each case which default or breach is Section 0 hereof would not curablebe satisfied, or (ii) if curableany of the covenants of Parent and the Purchaser contained in this Agreement shall have been breached such that the condition set forth in Section 0 hereof would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of Parent and the Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent or the Purchaser is curable by Parent or the Purchaser and Parent or the Purchaser is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then the Seller may not cured within 30 days after written notice terminate this Agreement under this Section 0 on account of such breach is given by the non-breaching partyinaccuracy or breach.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Medical Technologies Inc/De)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and before the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
Closing: (a) by the mutual written consent of NBC Purchaser and Xenon 2;
the Sellers’ Representative; (b) by either NBC or Xenon 2 by written notice to the other parties Purchaser if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before such date;
5:00 p.m. (Central time) on the date that is 10 months after the Agreement Date (the “End Date”) and any condition set forth in Section 6 has not been satisfied or waived as of the time of termination (other than as a result of any failure on the part of Purchaser to comply with or perform any covenant or obligation of Purchaser set forth in this Agreement or in the Share Issuance Agreement); (c) by either NBC the Sellers’ Representative if the Closing has not taken place on or Xenon 2 if before 5:00 p.m. (Central time) on the End Date and any condition set forth in Section 7 has not been satisfied or waived as of the time of termination (other than as a result of any failure on the part of any Seller to comply with or perform any covenant or obligation set forth in this Agreement or any other Transaction Document); (d) by Purchaser if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (iiA) any a court of competent jurisdiction or other Governmental Entity in India, Singapore or the United States shall have issued a final and unappealable permanent injunction, order, judgment nonappealable Order or shall have taken any other decree (other than a temporary restraining order) action having the effect of permanently restraining, enjoining or otherwise prohibiting the Secondary Share Purchase or the Share Issuance, in whole or in part, or (B) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Secondary Share Purchase or the Share Issuance by any Governmental Entity in India, Singapore or the United States that would make consummation of the transactions contemplated herebySecondary Share Purchase or the Share Issuance illegal, provided that in whole or in part; and (ii) the party seeking failure to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and providedcomply with such Order or Legal Requirement, further, that or the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance effect of such orderother action, decree would reasonably be expected to give rise to the imposition of criminal sanctions or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting criminal liability on Purchaser or any adjournment thereofof Purchaser’s officers, the Xoom Stockholder Approval shall not have been obtained directors or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
Affiliates; (e) by NBC if the Board Sellers’ Representative if: (i) (A) a court of Directors of Xoom competent jurisdiction or Xenon 2 other Governmental Entity in India, Singapore or any committee thereof the United States shall have withdrawn issued a final and nonappealable Order binding on all Sellers or modified shall have taken any other action binding on all Sellers having the effect of permanently restraining, enjoining or otherwise prohibiting the Secondary Share Purchase, or (B) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Secondary Share Purchase by any Governmental Entity in a manner adverse India, Singapore or the United States that would make consummation of the Secondary Share Purchase illegal; and (ii) the failure to NBC its approval comply with such Order or recommendation Legal Requirement, or the effect of this Agreementsuch other action, would reasonably be expected to give rise to the Xenon 2 Merger Agreement imposition of criminal sanctions or criminal liability on the Sellers or any of the transactions contemplated hereby Sellers’ officers or thereby;
directors; (f) by NBC if Purchaser if: (i) any Personal Representations of any Sellers that constitute Required Sellers shall be inaccurate as of the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal Agreement Date, or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior become inaccurate as of a date subsequent to the receipt Agreement Date, such that any of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under conditions set forth in Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which 6.1 would not be satisfied with respect to such Sellers (and there are not remaining Sellers who satisfy such conditions and can themselves constitute the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and Required Sellers); or (ii) concludes any covenants of any Sellers that constitute Required Sellers contained in good faith based on the advice of outside legal counsel that termination of this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied with respect to such Sellers (and there are not remaining Sellers who satisfy such condition and can themselves constitute the Required Sellers); provided, however, that if an inaccuracy in any of the representations and warranties of any such Seller as of the Agreement Date or a date subsequent to the Agreement Date or a breach of a covenant by any such Seller is required to comply with its fiduciary duties under applicable law; or
(h) curable by either NBC or Xenon 2 in such Seller through the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured use of reasonable efforts within 30 days after written notice of Purchaser notifies such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.Seller in writing 21
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 the Company, if any Order by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent Body of competent jurisdiction preventing or approval of which is required for the prohibiting consummation of the transactions contemplated hereby, Merger shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a become final and unappealable permanent injunctionnonappealable; provided, orderhowever, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under pursuant to this clause Section 8.1(b) must have used all reasonable efforts to remove any such Order without agreeing to the imposition of any Burdensome Condition prior to the Termination Date;
(c) is not then in material breach of by either Parent or the Company if (i) the Company Shareholders Meeting (including any adjournment or postponement thereof) shall have been duly held and completed and the Company shareholders shall have taken a final vote on a proposal to approve and adopt the Merger, this Agreement and the Escrow Agreement and (ii) the Merger, this Agreement and the Escrow Agreement shall not have been adopted and approved by the Required Company Shareholder Vote; provided, furtherhowever, that the right Company shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure of the Company shareholders to adopt and approve the Merger, this Agreement and the Escrow Agreement is attributable to a failure on the part of the Company to perform its obligations under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingAgreement;
(d) by either NBC or Xenon 2 Parent if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, of the Xoom Stockholder Approval Company's representations and warranties contained in this Agreement shall not have been obtained inaccurate as of the date of this Agreement or by NBC shall have become inaccurate as of any subsequent date (as if upon a vote at a duly held Xenon 2 Stockholders Meeting made on such subsequent date) such that the condition set forth in Section 6.1 would not be satisfied, or if any adjournment thereof, of the Xenon 2 Stockholder Approval Company's covenants contained in this Agreement shall not have been obtainedbreached in any material respect; provided, however, that Parent may not terminate this Agreement under this Section 8.1(d) on account of an inaccuracy in the Company's representations and warranties or on account of a breach of a covenant by the Company if such inaccuracy or breach is curable by the Company unless the Company fails to cure such inaccuracy or breach within 15 days after receiving written notice from Parent of such inaccuracy or breach;
(e) by NBC the Company if the Board any of Directors of Xoom or Xenon 2 or any committee thereof Parent's representations and warranties contained in this Agreement shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation been inaccurate as of the date of this Agreement, the Xenon 2 Merger Agreement or shall have become inaccurate as of any subsequent date (as if made on such subsequent date) such that the condition set forth in Section 7.1 would not be satisfied, or if any of Parent's covenants contained in this Agreement shall have been breached in any material respect; provided, however, that the transactions contemplated hereby Company may not terminate this Agreement under this Section 8.1(e) on account of an inaccuracy in Parent's representations and warranties or therebyon account of a breach of a covenant by Parent if such inaccuracy or breach is curable unless Parent fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Company of such inaccuracy or breach;
(f) by NBC Parent or the Company if the Board Closing has not taken place on or before July 31, 2002 (the "Termination Date") (other than as a result of Directors any failure on the part of Xoom shall have accepted the terminating party to comply with or recommended a Takeover Proposal perform any of its covenant or shall have resolved to do soobligation set forth in this Agreement);
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, Parent if a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawCompany Triggering Event shall have occurred; or
(h) by either NBC Parent if the average closing sales price for Parent Common Stock on the New York Stock Exchange Composite Transaction Tape (as reported in The Wall Street Journal, or, if not reported therein, any other authoritative source) for any (5) trading-day period ending on, or Xenon 2 immediately after, the date on which the condition set forth in the event there Section 6.3 has been a material default or breach by (x) NBC, where Xenon 2 satisfied is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partybelow $18.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC Parent, the Purchaser and Xenon 2the Seller;
(b) by either NBC Parent and the Purchaser or Xenon 2 by written notice to the other parties Seller if the transactions contemplated by this Agreement Transactions shall not have not been consummated by December 31May 15, 19992001 (the "Termination Date"); provided, unless extended by written agreement of the parties heretohowever, provided that the (i) a party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right permitted to terminate --------- ------- this Agreement under pursuant to this clause (bSection 8.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, if the failure to consummate the transactions contemplated Transactions by the Termination Date is attributable to a failure on the part of such party to perform any covenant in this Agreement on required to be performed by such party at or before such dateprior to the Closing Date, and (ii) the Seller shall not be permitted to terminate this Agreement pursuant to this Section 8.1(b) unless the Seller shall have made any payment required to be made to the Purchaser pursuant to Section 8.4(a) and shall have paid to the Purchaser any fee required to be paid to the Purchaser pursuant to Section 8.4(c);
(c) by either NBC Parent and the Purchaser or Xenon 2 the Seller if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingTransactions;
(d) by either NBC Parent and the Purchaser or Xenon 2 the Seller if upon (i) the Shareholders' Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Seller's shareholders shall have taken a final vote on a proposal to approve the Acquisition and the Plan of Dissolution, and (ii) the Acquisition and the Plan of Dissolution shall not both have been approved at a duly held Xoom Stockholders the Shareholders' Meeting (or at any adjournment or postponement thereof) by the Required Shareholder Vote; provided, the Xoom Stockholder Approval however, that (A) a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(d) if the failure to have been obtained the Acquisition and the Plan of Dissolution approved by the Required Shareholder Vote is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereofprior to the Closing Date, and (B) the Xenon 2 Stockholder Approval Seller shall not be permitted to terminate this Agreement pursuant to this Section 8.1(d) unless the Seller shall have been obtainedmade the payment required to be made to the Purchaser pursuant to Section 8.4(a) and shall have paid to the Purchaser the fee required to be paid to the Purchaser pursuant to Section 8.4(c);
(e) by NBC Parent and the Purchaser (at any time prior to the approval of the Acquisition and the Plan of Dissolution by the Required Shareholder Vote) if the Board of Directors of Xoom or Xenon 2 or any committee thereof a Triggering Event shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or therebyoccurred;
(f) by NBC Parent and the Purchaser if (i) any of the Board Seller's representations and warranties contained in this Agreement shall be inaccurate as of Directors the date of Xoom shall have accepted or recommended a Takeover Proposal this Agreement, or shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 6.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, any update of or modification to the Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), or (ii) any of the Seller's covenants contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the Seller's representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by the Seller is curable by the Seller and the Seller is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent and the Purchaser may not terminate this Agreement under this Section 8.1(f) on account of such inaccuracy or breach; or
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom Seller if (i) determines any of the representations and warranties of Parent and the Purchaser contained in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on shall be inaccurate as of the advice date of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (y) Xoom or Xenon 2as if made on such subsequent date), where NBC is terminating this Agreement, such that the condition set forth in each case which default or breach is Section 7.1 would not curablebe satisfied, or (ii) if curableany of the covenants of Parent and the Purchaser contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of Parent and the Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent or the Purchaser is curable by Parent or the Purchaser and Parent or the Purchaser is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then the Seller may not cured within 30 days after written notice terminate this Agreement under this Section 8.1(g) on account of such breach is given by the non-breaching partyinaccuracy or breach.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC Seller and Xenon 2Buyer;
(b) by either NBC Seller or Xenon 2 Buyer by giving written notice to the other parties Party if the transactions contemplated by this Agreement Closing shall not have not been consummated occurred by December 3110, 19992011, unless extended by written agreement of the parties heretoSeller and Buyer; provided, provided that the party terminating this Agreement a Party shall not be permitted to terminate pursuant to this subsection (b) if such Party is in material -------- default or breach hereunder and hereunder; provided, further, that the right to terminate --------- ------- this Agreement under this clause subsection (b) shall not be available to any party Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such date;
(c) by either NBC the Seller or Xenon 2 Buyer by giving written notice to the other if such other Party has breached its covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in this Section 9.1(c) not to be satisfied and, except in the case of a breach of Buyer’s obligation to pay the Purchase Price in accordance with the terms of Article II, such breach has not been cured within thirty (i30) days following written notification thereof by the Party seeking termination hereunder; or
(d) by either Seller or Buyer by giving written notice to the other if any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of Authority with competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, an order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) Action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated herebyby this Agreement, provided that the party seeking and such order, decree, ruling or other Action shall not be subject to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement appeal or shall have become final and unappealable; provided, further, that the right to terminate this Agreement under this clause -------- ------- subsection (cd) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance Party whose breach (or whose Affiliates’ breach) of this Agreement has resulted in such order, decree decree, ruling or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyother Action.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wendy's/Arby's Restaurants, LLC)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the adoption of this Agreement by the Company’s stockholders):
(a) by the mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC or Xenon 2 by written notice to the other parties Parent if the transactions contemplated by this Agreement have Closing has not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement taken place on or before such date5:00 p.m. (Pacific time) on February 12, 2010 (the “End Date”) (other than as a result of any failure on the part of Parent to comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement);
(c) by either NBC the Company if the Closing has not taken place on or Xenon 2 if before 5:00 p.m. (Pacific time) on the End Date (other than as a result of any failure on the part of the Company or any of the stockholders of the Company to comply with or perform any covenant or obligation set forth in this Agreement or in the Support Agreement);
(d) by Parent or the Company if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Body that would make consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedMerger illegal;
(e) by NBC if Parent if: (i) any of the Board representations and warranties of Directors the Company contained in this Agreement shall be inaccurate as of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation the date of this Agreement, or shall have become inaccurate as of a date subsequent to the Xenon 2 Merger Agreement date of this Agreement, such that, if such inaccuracy occurred or was continuing as of the Closing Date, the condition set forth in Section 6.1 would not be satisfied; or (ii) any of the transactions contemplated hereby covenants of the Company contained in this Agreement shall have been breached such that, if such breach occurred or thereby;was continuing as of the Closing Date, the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Company or a breach of a covenant by the Company is curable by the Company through the use of reasonable efforts within 60 days after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(e) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company, during the Company Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period); Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange act of 1934, as amended.
(f) by NBC if the Board Company if: (i) any of Directors Parent’s representations and warranties contained in this Agreement shall be inaccurate as of Xoom shall have accepted or recommended a Takeover Proposal the date of this Agreement, or shall have resolved become inaccurate as of a date subsequent to do so;the date of this Agreement, such that, if such inaccuracy occurred or was continuing as of the Closing Date, the condition set forth in Section 7.1 would not be satisfied; or (ii) if any of Parent’s covenants contained in this Agreement shall have been breached such that, if such breach occurred or was continuing as of the Closing Date, the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts within 60 days after the Company notifies Parent in writing of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Parent Cure Period); or
(g) by Xoom or Xenon 2, prior to the receipt Parent if any of the Xoom Required Merger Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which Votes or the Board of Directors of Xoom (i) determines in good faith and Required Amendment Stockholder Votes is not obtained within one day after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination date of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Onyx Pharmaceuticals Inc)
Termination Events. (a) Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeabandoned:
(ai) by mutual written consent of NBC and Xenon 2;the parties hereto.
(bii) by either NBC or Xenon 2 any party by written notice to the other parties party if the transactions contemplated by Initial Closing shall not have been consummated within sixty (60) days after the date hereof; provided that if the Initial Closing shall not occur before such date due to the breach of this Agreement have by Company or Stockholders, on the one hand, or Buyer, on the other hand, then that party may not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating terminate this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right pursuant to terminate --------- ------- this Agreement under this paragraph clause (bii).
(iii) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been by Buyer, on the cause ofone hand, or resulted inCompany or Stockholders, on the failure to consummate the transactions contemplated by this Agreement on other hand, if an injunction, restraining order or before such date;
(c) by either NBC or Xenon 2 if (i) decree of any nature of any Governmental Authority, the consent or approval Authority of which competent jurisdiction is required for issued that prohibits the consummation of the transactions contemplated herebyPurchase and such injunction, shall have determined not to grant its consent restraining order or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a decree is final and unappealable permanent injunctionnon-appealable; provided, orderhowever, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under pursuant to this clause (iii) shall have used its reasonable best efforts to have such injunction, order or decree vacated or denied.
(b) The respective obligations of the parties hereto pursuant to Section 6.5 and this Article 10 shall survive any termination of this Agreement.
(c) is not then in material breach of this Agreement and provided, further, that In the right event either party wishes to terminate this Agreement under this clause -------- ------- pursuant to Section 10.2(a)(ii) or 10.2(a)(iii) hereof, written notice thereof (cstating the reasons for such termination) shall not promptly be available given to any the other party who hereto and this Agreement shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of terminate and the transactions contemplated hereby or thereby;
(f) shall be abandoned without further action by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt any of the Xoom Stockholder Approvalparties hereto; provided, on five business days written noticehowever, if, Xoom receives, without violating its obligations under Section 5.5 that nothing herein shall relieve any party from liability for any breach hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the adoption of this Agreement by the Company’s stockholders):
(a) by the mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC the Company or Xenon 2 by written notice to the other parties Parent if the transactions contemplated by this Agreement have Closing has not been consummated by December taken place on or before 5:00 p.m. (Eastern time) on May 31, 1999, unless extended by written agreement of 2017 (the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and “End Date”); provided, furtherhowever, that the right to terminate --------- ------- this Agreement under pursuant to this clause Section 8.1(b) of this Agreement (with respect to either date set forth in this subsection (b)) shall not be available to any party whose breach of any provision of or failure to fulfill any obligation comply with its obligations under this Agreement has been is the primary cause of, or resulted in, of the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated herebyMerger to be consummated by the End Date or August 31, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in 2017, as the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and case may be; provided, further, that the right to terminate this Agreement under pursuant to this clause -------- ------- (cSection 8.1(b) shall not be available to any party who until August 31, 2017 if the failure to consummate the Merger on or prior to the End Date is the direct result of the failure or non-satisfaction of any conditions set forth in Section 6.3;
(c) by either the Company or Parent if: (i) a court of competent jurisdiction or other Governmental Entity shall not have used reasonable commercial efforts to avoid the issuance of such issued a final and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Entity that would make consummation of the Merger illegal;
(d) by either NBC Parent if: (i) any representation and warranty of the Company under Section 2 of this Agreement shall be inaccurate or Xenon 2 untrue as of the date of this Agreement, or shall have become inaccurate or untrue as of a date subsequent to the date of this Agreement, such that the conditions set forth in Section 6.1 would not be satisfied or (ii) any of the covenants of the Company under Section 4 or Section 5 of this Agreement shall have been breached such that the conditions set forth in Section 6.2 would not be satisfied; provided, however, that if upon an inaccuracy in any of the representations and warranties of the Company as of a vote at date subsequent to the date of this Agreement or a duly held Xoom Stockholders Meeting breach of a covenant by the Company is curable through the use of reasonable efforts within 20 days after written notice to the other of the existence of such inaccuracy or any adjournment thereofbreach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(d) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided that, during the Company Cure Period, the Xoom Stockholder Approval shall Company continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not have been obtained terminate this Agreement pursuant to this Section 8.1(d) with respect to such inaccuracy or by NBC breach if upon a vote at a duly held Xenon 2 Stockholders Meeting such inaccuracy or any adjournment thereof, breach is cured prior to the Xenon 2 Stockholder Approval shall not have been obtainedexpiration of the Company Cure Period);
(e) by NBC if the Board Company if: (i) any representation and warranty of Directors Parent or Merger Sub under Section 3 of Xoom this Agreement shall be inaccurate or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation untrue as of the date of this Agreement, or shall have become inaccurate or untrue as of a date subsequent to the Xenon 2 Merger Agreement date of this Agreement, such that the conditions set forth in Section 7.1 would not be satisfied or (ii) any of the transactions contemplated hereby covenants of Parent or therebyMerger Sub under Section 4 or Section 5 of this Agreement shall have been breached such that the conditions set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of Parent as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent is curable through the use of reasonable efforts within 20 days after written notice to the other of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 8.1(e) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided that, during the Parent Cure Period, Parent continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 8.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Parent Cure Period);
(f) by NBC Parent if the Board of Directors of Xoom any Material Adverse Effect shall have accepted occurred, or recommended a Takeover Proposal any event or other Effect shall have resolved occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, could reasonably be expected to do so;have or result in a Material Adverse Effect; provided, however, that if any such Material Adverse Effect is curable through the use of reasonable efforts by the Company within 15 days after written notice by Parent to the Company of the existence of such Material Adverse Effect (the “MAE Cure Period”), then Parent may not terminate this Agreement under this Section 8.1(f) as a result of such Material Adverse Effect prior to the expiration of the MAE Cure Period, provided that, during the MAE Cure Period, the Company continues to exercise best efforts to cure such Material Adverse Effect (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such Material Adverse Effect if such Material Adverse Effect is cured prior to the expiration of the MAE Cure Period); and
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days Parent if written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by consents adopting this Agreement and (ii) concludes in good faith based on approving the advice Merger and the Charter Amendment by the stockholders of outside legal counsel that termination the Company representing the Required Stockholder Vote shall not have been duly executed and delivered within two hours after the execution and delivery of this Agreement is required to comply with its fiduciary duties Agreement; provided, however, that Parent may not exercise the termination right under applicable law; or
(hthis Section 8.1(g) by either NBC or Xenon 2 in at any time following the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice actual delivery of such breach is given by the non-breaching partywritten consents.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ca, Inc.)
Termination Events. Without prejudice This Agreement may, by written notice given prior to other remedies which may be ------------------ available or at the Closing to the other parties by law or this Agreementhereto, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeby this Agreement abandoned:
(a) by mutual Seller if a material Breach of any provision of this Agreement has been committed by Buyer which (i) would result in a failure of a condition set forth in Section 8.1 or 8.2 and (ii) is not cured, or cannot be cured, in all material respects within thirty (30) days after written consent of NBC notice thereof and Xenon 2such Breach has not been waived in writing by Seller;
(b) by either NBC Seller if the Closing shall not have occurred on or Xenon 2 by written notice prior to the other parties if expiration of a 180-day period from the transactions contemplated by date of this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and Agreement; provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, furtherhowever, that the right to terminate this Agreement under this clause -------- ------- (cSection 9.1(b) shall not be available to Seller if Seller is in material Breach of this Agreement;
(c) by Seller, upon written notice to Buyer, if (i) Seller, or the Board, as the case may be, shall have (A) entered into any party who Acquisition Agreement or (B) approved or recommended, or, in the case of a committee, proposed to the Board, to approve or recommend, any Acquisition Proposal, (ii) the Board or any committee thereof shall not have used reasonable commercial efforts resolved to avoid do any of the issuance of foregoing, or (iii) a Seller Adverse Recommendation Change shall have occurred in response to a Superior Proposal or a Seller Sale Proposal or the Board or any committee thereof shall have resolved to make such order, decree or rulingSeller Adverse Recommendation Change;
(d) by either NBC Buyer if a material Breach of any provision of this Agreement has been committed by Seller which (i) would result in a failure of a condition set forth in Section 7.1 or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting 7.2 and (ii) is not cured, or any adjournment thereofcannot be cured, the Xoom Stockholder Approval shall in all material respects within thirty (30) days after written notice thereof and such Breach has not have been obtained or waived in writing by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedBuyer;
(e) by NBC Buyer if the Board Closing shall not have occurred on or prior to expiration of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation 180-day period from the date of this Agreement; provided, however, that the Xenon 2 Merger right to terminate this Agreement or any under this Section 9.1(e) shall not be available to Buyer if Buyer is in material Breach of the transactions contemplated hereby or therebythis Agreement;
(f) by NBC either Seller or Buyer if the Board of Directors of Xoom any Governmental Body shall have accepted issued an Order or recommended a Takeover Proposal taken any other action preventing or prohibiting Closing and such Order or other such action shall have resolved become final without possibility of appeal, or there shall be any Legal Requirement enacted, promulgated, issued or applicable to do sothe material transactions contemplated herein by any Governmental Body that would make consummation of such transactions illegal;
(g) by Xoom Buyer if (A) a Seller Adverse Recommendation Change shall have occurred or Xenon 2(B) Seller shall have entered into, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which or the Board of Directors of Xoom (ior any committee thereof) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to shall have publicly announced an intention that the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; orSeller enter into, an Acquisition Agreement;
(h) by either NBC Buyer if a Change of Control occurs in respect of Seller (which for the purpose of this Section 9.1(h) shall deemed to have occurred upon (A) Seller entering into any binding or Xenon 2 non-binding agreement, letter of intent or other document with any third party which contemplates a Change of Control of Seller; (B) the Board of Seller having made a favorable recommendation to shareholders regarding a transaction contemplating a Change of Control of Seller; or (C) a third party makes an offer to acquire a majority shareholding in the event there Seller (whether through a tender offer or otherwise) and such offer has been a material default accepted by shareholders holding 25% or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice more of such breach is given by the non-breaching party.total outstanding shares of Seller;
(i) automatically by mutual consent of Seller and without any action Buyer;
(j) by Buyer prior to Closing if a Company Material Adverse Effect has occurred;
(k) by Buyer in accordance with Section 6.8;
(l) by Buyer in accordance with Section 6.13;
(m) by Buyer if Seller fails to obtain export control licenses from the U.S. Department of Commerce in respect of the Export Controlled Technologies or approval by CFIUS in respect of the transaction by the parties upon end of a 180-day period from the termination date of the Xenon 2 Merger this Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC Parent, Seller, and Xenon 2Buyer;
(b) by either NBC Parent and Seller, on the one hand, or Xenon 2 Buyer, on the other hand, by giving written notice to the other parties Parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement Closing shall not be in material -------- default or breach hereunder and providedhave occurred by the Termination Date, further, as extended; provided that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such date;
(c) by either NBC Parent and Seller, on the one hand, or Xenon 2 Buyer, on the other hand, by giving written notice to the other Parties if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States Authority shall have issued a final and unappealable permanent injunction, an order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated herebyby this Agreement, and such order, decree, ruling or other Action shall not be subject to appeal or shall have become final and unappealable;
(d) by Buyer (provided that the party seeking to terminate this Agreement -------- under this clause (c) Buyer is not then in material breach of any representation or warranty, or material covenant contained herein), if there shall have been a material breach of any of the representations or warranties, or material covenants of Parent or Seller set forth in this Agreement Agreement, which breach would constitute, either individually or in the aggregate, if occurring on the Closing Date, the failure of the conditions set forth in Sections 7.3(a) or 7.3(b) (a “Seller Terminating Breach”); provided that if, (x) within ten (10) Business Days following receipt by Seller of written notice from Buyer specifying the nature of the Seller Terminating Breach in reasonable detail (the “Seller Breach Notice”), Seller delivers to Buyer a notice outlining the manner in which, and providedthe time within which, furthersuch Seller Terminating Breach shall be, or is reasonably likely to be, cured such that a Seller Terminating Breach shall no longer be continuing (a “Seller Cure Plan”), and (y) within 30 days following receipt by Seller of the right Seller Breach Notice, Parent or Seller commences implementation of the actions described in such Seller Cure Plan and continues to exercise its reasonable best efforts to cure such Seller Terminating Breach such that a Seller Terminating Breach shall no longer be continuing, Buyer may not terminate this Agreement under this clause -------- ------- (cSection 10.1(d) until the Termination Date; provided further that Buyer’s right to terminate pursuant to this Section 10.1(d) shall not be available lapse if and when such Seller Terminating Breach is cured such that the Seller Terminating Breach is no longer continuing and Parent and Seller are otherwise no longer in breach, which breach would give rise to any party who shall not have used reasonable commercial efforts to avoid the issuance a right of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;termination under this Section 10.1(d); or
(e) by NBC Parent and Seller (provided that Parent and Seller are not then in material breach of any representation or warranty, or material covenant contained herein), if the Board of Directors of Xoom or Xenon 2 or any committee thereof there shall have withdrawn been a material breach of any of the representations or modified warranties, or material covenants of Buyer set forth in a manner adverse to NBC its approval or recommendation of this Agreement, which breach would constitute, either individually or in the Xenon 2 Merger Agreement or any aggregate, if occurring on the Closing Date, the failure of the transactions contemplated hereby conditions set forth in Sections 7.2(a) or thereby;
7.2(b) (f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, “Buyer Terminating Breach”); provided that if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBCwithin ten (10) Business Days following receipt by Buyer of written notice from Seller specifying the nature of the Buyer Terminating Breach in reasonable detail (the “Buyer Breach Notice”), where Xenon 2 is terminating this AgreementBuyer delivers to Seller a notice outlining the manner in which, and the time within which, such Buyer Terminating Breach shall be, or is reasonably likely to be, cured such that a Buyer Terminating Breach shall no longer be continuing (a “Buyer Cure Plan”), and (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given following receipt by the non-breaching party.
(i) automatically and without any action by the parties upon the termination Buyer of the Xenon 2 Merger AgreementBuyer Breach Notice, Buyer commences implementation of the actions described in such Buyer Cure Plan and continues to exercise its reasonable best efforts to cure such Buyer Terminating Breach such that a Buyer Terminating Breach shall no longer be continuing, Parent and Seller may not terminate this Agreement under this Section 10.1(e) until the Termination Date; provided further that Parent’s and Seller’s right to terminate pursuant to this Section 10.1(e) shall lapse if and when such Buyer Terminating Breach is cured such that the Buyer Terminating Breach is no longer continuing and Buyer is otherwise no longer in breach, which breach would give rise to a right of termination under this Section 10.1(e).
Appears in 1 contract
Sources: Share Purchase Agreement (SSI Southland Holdings, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing Date:
(a) by mutual written consent of NBC Network CN and Xenon 2the Selling Shareholder (pursuant to a written instrument signed by Network CN and the Selling Shareholder);
(b) by either NBC Network CN or Xenon 2 the Selling Shareholder if any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of the Transactions shall have become final and nonappealable; provided, however, that (A) the Party or Parties seeking to terminate this Agreement pursuant to this Section 7.1(b) must have used all reasonable efforts to remove any such Order prior to the Termination Date and (B) no Party may terminate this Agreement pursuant to this Section 7.1(b) if its breach of its obligations under this Agreement proximately contributed to the occurrence of such Order;
(c) by Network CN if:
(i) the Selling Shareholder or the Operating Companies shall have breached any representation, warranty or covenant contained herein and (A) such breach shall not have been cured within thirty (30) days after receipt by the Selling Shareholder of written notice of such breach (provided, however, that no such cure period shall be available or applicable to the other parties if the transactions contemplated any such breach which by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall its nature cannot be in material -------- default or breach hereunder and cured); provided, furtherhowever, that the termination right to terminate --------- ------- this Agreement under this clause (bSection 7.1(c)(i) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 Network CN if (i) any Governmental Authority, the consent or approval of which Network NC is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided at that the party seeking to terminate this Agreement -------- under this clause (c) is not then time in material breach of this Agreement Agreement);
(d) by Selling Shareholder (pursuant to a written instrument signed by Selling Shareholder) if Network CN shall have breached any representation, warranty or covenant contained herein and (A) such breach shall not have been cured within thirty (30) days after receipt by Network CN of written notice of such breach (provided, furtherhowever, that no such cure period shall be available or applicable to any such breach which by its nature cannot be cured); provided, however, that the termination right to terminate this Agreement under this clause -------- ------- (cSection 7.1(d) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 Selling Shareholder if upon a vote Selling Shareholder is at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified that time in a manner adverse to NBC its approval or recommendation material breach of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby);
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing, whether before or after adoption of this Agreement by the Company's shareholders:
(a) by mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 the Company, if any Order by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent Body of competent jurisdiction preventing or approval of which is required for the prohibiting consummation of the transactions contemplated hereby, Merger shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a become final and unappealable permanent injunctionnonappealable; provided, orderhowever, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under pursuant to this clause Section 8.1(b) must have used all reasonable efforts to remove any such Order without agreeing to the imposition of any Burdensome Condition prior to the Termination Date;
(c) by either Parent or the Company if (i) the Company Shareholders Meeting (including any adjournment or postponement thereof) shall have been duly held and completed and the Company shareholders shall have taken a final vote on a proposal to approve and adopt the Merger, this Agreement and the Escrow Agreement and (ii) the Merger, this Agreement and the Escrow Agreement shall not have been adopted and approved by the Required Company Shareholder Vote; provided, however, that the Company shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure of the Company shareholders to adopt and approve the Merger, this Agreement and the Escrow Agreement is not then attributable to a failure on the part of the Company to perform its obligations under this Agreement;
(d) by Parent if any of the Company's representations and warranties contained in material breach this Agreement shall have been materially inaccurate as of the date of this Agreement and or shall have become materially inaccurate as of any subsequent date (as if made on such subsequent date), or if any of the Company's covenants contained in this Agreement shall have been breached in any material respect; provided, furtherhowever, that Parent may not terminate this Agreement under this Section 8.1(d) on account of an inaccuracy in the Company's representations and warranties or on account of a breach of a covenant by the Company if such inaccuracy or breach is curable by the Company unless the Company fails to cure such inaccuracy or breach within 15 days after receiving written notice from Parent of such inaccuracy or breach;
(e) by the Company if any of Parent's representations and warranties contained in this Agreement shall have been materially inaccurate as of the date of this Agreement or shall have become materially inaccurate as of any subsequent date (as if made on such subsequent date), or if any of Parent's covenants contained in this Agreement shall have been breached in any material respect; provided, however, that the Company may not terminate this Agreement under this Section 8.1(e) on account of an inaccuracy in Parent's representations and warranties or on account of a breach of a covenant by Parent if such inaccuracy or breach is curable unless Parent fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Company of such inaccuracy or breach;
(f) by Parent or the Company if the Closing has not taken place on or before August 1, 2002 (the "Termination Date") (other than as a result of any failure on the part of the terminating party to comply with or perform any of its covenant or obligation set forth in this Agreement); provided that if Parent has a right to terminate this Agreement pursuant to 8.1(d) and has elected not to terminate this Agreement and the Closing has not taken place on or before the Termination Date, then the Company shall have the right to terminate this Agreement under if the Closing has not taken place on or before October 1, 2002 (the "Final Termination Date") even if the failure to close is the result of a failure on the part of the Company to comply with or perform any of its covenants or obligations so long as the Company has used commercially reasonable efforts to cure any breach of its obligations and to satisfy the conditions to Closing and has negotiated in good faith for at least five (5) business days an amendment to this clause -------- ------- (c) shall Agreement to address any breach that is not curable or any condition to Closing that cannot be available to any party who shall not have used reasonable commercial efforts to avoid satisfied by the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do soFinal Termination Date;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, Parent if a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; orCompany Triggering Event shall have occurred;
(h) by either NBC or Xenon 2 the Company, at any time during the Price Election Period if the Average Parent Closing Price is less than $15.00; subject, however, to the following three sentences. If the Company elects to exercise its termination right pursuant to the immediately preceding sentence, it shall promptly give written notice to Parent; provided that such notice of election to terminate this Agreement may be withdrawn by the Company at any time during the Price Election Period pursuant to written notice provided by the Company to Parent. During the two-day period following the date on which Parent receives such notice, Parent shall have the option to make the Parent Fixed Value Election; provided, however, that Parent may not make the Parent Fixed Value Election if the Average Parent Closing Price is less than $10.00. If Parent makes the Parent Fixed Value Election within such two-day period, it shall give prompt written notice to the Company of such election, whereupon no termination shall have occurred pursuant to this Section 8.1(h), and this Agreement shall remain in effect in accordance with its terms, and any reference in this Agreement to "Exchange Ratio" shall thereafter be deemed to refer to the event there has been a material default or breach by Exchange Ratio as computed pursuant to paragraph (xv)(A) NBC, where Xenon 2 is terminating of the definition of the term "Exchange Ratio" in Section 1.5(a) of this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.; or
(i) automatically by Parent, at any time during the Price Election Period if the Average Parent Trading Price is greater than $27.00; subject, however, to the following three sentences. If Parent elects to exercise its termination right pursuant to the immediately preceding sentence, it shall promptly give written notice to the Company; provided that such notice of election to terminate this Agreement may be withdrawn by Parent at any time during the Price Election Period pursuant to written notice provided by Parent to the Company. During the two-day period following the date on which the Company receives such notice, the Company shall have the option to make the Company Fixed Value Election. If the Company makes the Company Fixed Value Election within such two-day period, it shall give prompt written notice to Parent of such election, whereupon no termination shall have occurred pursuant to this Section 8.1(i), and without this Agreement shall remain in effect in accordance with its terms, and any action by reference in this Agreement to "Exchange Ratio" shall thereafter be deemed to refer to the parties upon the termination Exchange Ratio as computed pursuant to paragraph (iv)(A) of the Xenon 2 Merger definition of the term "Exchange Ratio" in Section 1.5(a) of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC ▇▇▇▇▇▇▇▇▇ and Xenon 2the Seller;
(b) by either NBC Purchaser, at any time after the End Time, if (i) the Closing has not taken place on or Xenon 2 by written notice before the End Time and (ii) any condition set forth in Article 7 has not been satisfied or waived as of the time of termination (in each case, other than as a result of any failure on the part of Purchaser to comply with or perform any covenant or obligation of Purchaser set forth in this Agreement or in any other Transaction Document or instrument delivered to the Seller in connection with the Contemplated Transactions, in all material respects);
(c) by the Seller, at any time after the End Time, if (i) the Closing has not taken place on or before the End Time and (ii) any condition set forth in Article 8 has not been satisfied or waived as of the time of termination (in each case, other parties if than as a result of any failure on the transactions contemplated by part of the Seller to comply with or perform any covenant or obligation set forth in this Agreement or in any other Transaction Document or instrument delivered to the Seller in connection with the Contemplated Transactions, in all material respects);
(d) by Purchaser or the Seller if: (i) a court of competent jurisdiction or other Governmental Entity shall have not been consummated issued a final and nonappealable Order or shall have taken any other action, having the effect of permanently restraining, enjoining, or otherwise prohibiting the Acquisition; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued, or deemed applicable to the Acquisition by December 31, 1999, unless extended by written agreement any Governmental Entity that would make consummation of the parties hereto, provided that Acquisition illegal;
(e) by Purchaser if (i) any representation or warranty made by the party terminating Seller in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement, such that any condition set forth in Section 7.1 would not be satisfied; or (ii) any covenant of the Seller contained in material -------- default this Agreement shall have been breached such that any condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any representation or warranty made by the Seller in this Agreement as of a date subsequent to the date of this Agreement or a breach of a covenant by the Seller is curable by the Seller through the use of ACTIVE/123404471.12 commercially reasonable efforts within [***] days after Purchaser notifies the Seller in writing of the existence of such inaccuracy or breach hereunder and (the “Seller Cure Period”), then Purchaser may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Seller Cure Period; provided, further, that the right Seller continues to exercise commercially reasonable efforts during the Seller Cure Period to cure such inaccuracy or breach (it being understood that Purchaser may not terminate --------- ------- this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Seller Cure Period); or
(f) by the Seller if: (i) any representation or warranty made by Purchaser in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement, such that any condition set forth in Section 8.1 would not be satisfied; (ii) any covenant of Purchaser contained in this Agreement shall have been breached such that any condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any representation or warranty made by Purchaser in this Agreement as of a date subsequent to the date of this Agreement or a breach of a covenant by Purchaser is curable by Purchaser through the use of commercially reasonable efforts within [***] days after the Seller notifies Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Seller may not terminate this Agreement under this clause (bSection 9.1(f) shall not be available as a result of such inaccuracy or breach prior to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation expiration of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and Purchaser Cure Period; provided, further, that Purchaser continues to exercise commercially reasonable efforts during the right Purchaser Cure Period to cure such inaccuracy or breach (it being understood that the Seller may not terminate this Agreement under pursuant to this clause -------- ------- (cSection 9.1(f) shall not be available with respect to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree inaccuracy or ruling;
(d) by either NBC breach if such inaccuracy or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, breach is cured prior to the receipt expiration of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyPurchaser Cure Period).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeabandoned:
(a) by mutual written consent of NBC and Xenon 2the Parties;
(b) after the date that is three (3) months following the date hereof (the “Outside Date”), by either NBC or Xenon 2 Party by written notice to the other parties Party if the transactions contemplated by this Agreement Closing shall not have not been consummated by December 31, 1999, unless extended by written agreement of on or prior to the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and Outside Date; provided, furtherhowever, that the right to terminate --------- ------- this Agreement under this clause (bSection 9.1(b) shall not be available to any party either Party whose failure or whose Affiliate’s failure to fulfill perform in all material respects any obligation of its obligations under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such date;
(c) by either NBC or Xenon 2 Party by notice to the other Party, if (i) a final, non-appealable order, decree or ruling enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement to occur on the Closing Date has been issued by any Governmental Authorityfederal or state court in the United States having jurisdiction (unless such order, the consent decree or approval of which is required for ruling has been withdrawn, reversed or otherwise made inapplicable) or (ii) any U.S. federal or state Law has been enacted that would make the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate by this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that to occur on the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingClosing Date illegal;
(d) by either NBC Buyer, if (i) any representation or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting warranty of Seller contained in this Agreement shall be inaccurate such that the condition set forth in Section 7.3(a) would not be satisfied, or any adjournment thereof, (ii) the Xoom Stockholder Approval covenants or obligations of Seller contained in this Agreement shall not have been obtained breached in any material respect such that the condition set forth in Section 7.3(c) would not be satisfied; provided, however, that if an inaccuracy or breach is curable by NBC if upon Seller during the 15-day period after Buyer notifies Seller in writing of the existence of such inaccuracy or breach (the “Seller Cure Period”) relating to such inaccuracy or breach, then Buyer may not terminate this Agreement under this Section 9.1(d) as a vote at a duly held Xenon 2 Stockholders Meeting result of such inaccuracy or any adjournment thereof, breach prior to the Xenon 2 Stockholder Approval shall not have been obtained;expiration of the Seller Cure Period unless Seller is no longer continuing to exercise commercially reasonable efforts to cure such inaccuracy or breach; or
(e) by NBC Seller, if (i) any representation or warranty of Buyer contained in this Agreement shall be inaccurate such that the Board condition set forth in Section 7.2(a) would not be satisfied, or (ii) the covenants or obligations of Directors of Xoom or Xenon 2 or any committee thereof Buyer contained in this Agreement shall have withdrawn been breached in any material respect such that the condition set forth in Section 7.2(b) would not be satisfied; provided, however, that if an inaccuracy or modified breach is curable by Buyer during the 15-day period after Seller notifies Buyer in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any writing of the transactions contemplated hereby existence of such inaccuracy or thereby;
breach (fthe “Buyer Cure Period”), then Seller may not terminate this Agreement under this Section 9.1(e) by NBC if the Board as a result of Directors of Xoom shall have accepted such inaccuracy or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, breach prior to the receipt expiration of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation Buyer Cure Period unless Buyer is no longer continuing to be more favorable exercise commercially reasonable efforts to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC cure such inaccuracy or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partybreach.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeabandoned:
(a) by mutual written consent of NBC and Xenon 2the parties hereto;
(b) by either NBC Purchaser or Xenon 2 SALD by written notice to the other parties if the transactions contemplated by this Agreement have Closing has not been consummated by December 31July 1, 19992000, unless extended by written agreement of the parties Parties hereto, provided that the party Party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available (i) to any party Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to consummate occur on or before such date; or (ii) in the event that the Closing has not occurred as a result of a failure of any representation to be true and correct, the terminating party shall not have the right to terminate this Agreement if such party knew of such breach prior to the date of this Agreement; or
(c) by either Purchaser or SALD, if any Governmental Authority has issued a final order, decree or ruling enjoining or otherwise permanently prohibiting any of the transactions contemplated by this Agreement on (unless such order, decree or before such date;
ruling has been withdrawn, reversed or otherwise made inapplicable ); provided, that this clause (c) shall not apply in the case where all of the following apply: (x) to any such order, decree or ruling in any country (or by either NBC or Xenon 2 if (i) any Governmental AuthorityAuthority in any country) other than the U.S., France, the consent U.K. and Spain, (y) where the aggregate effect of all such orders, decrees or approval of which is required for rulings on the consummation of the transactions contemplated herebywould not reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect following the Closing Date and (z) the order, shall have determined not to grant its consent decree or approval and all appeals of such determination shall ruling wherever it may have been taken and have been unsuccessful issued, does not purport to restrict in their entirety or (ii) substantially in their entirety the transactions contemplated in this Agreement, in which case the Closing shall proceed in accordance with Article VII except that any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated herebythat are enjoined will not be closed until such time as it no longer is enjoined and there shall be an appropriate adjustment in the Purchase Price to reflect that such portion of the Business will not be transferred; and provided, provided further, that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement Agreement; and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party Party who shall not have used reasonable commercial best efforts to avoid the issuance of such order, decree or ruling;
(d) . If the enjoinder or prohibition by either NBC its terms would permit the Closing to occur before July 1, 2000, then the Closing shall occur promptly after the enjoinder or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting prohibition no longer is effective. If the Closing has occurred and any Transferred Subsidiary or Purchased Asset has not been sold, assigned, transferred, conveyed, delivered or acquired due to any adjournment thereofenjoinder or prohibition, the Xoom Stockholder Approval parties shall not have been obtained use their reasonable best efforts, and shall cooperate with each other, to obtain promptly the removal of such enjoinder or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting prohibition; provided, that neither Purchaser nor any of its respective Affiliates shall be required to pay any consideration therefor, other than filing, recordation or similar fees payable to any adjournment thereofGovernmental Authority. Pending or in the absence of the removal of such enjoinder or prohibition, the Xenon 2 Stockholder Approval parties shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or cooperate with each other in any committee thereof shall have withdrawn or modified in a manner adverse reasonable and lawful arrangements designed to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior provide to the receipt of Purchaser and any respective Designated Purchaser the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith benefits and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice liabilities of such breach is given by the non-breaching partyTransferred Subsidiary or Purchased Asset which are enjoined or prohibited from being sold, assigned, transferred, conveyed, delivered or acquired.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Polo Ralph Lauren Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and (prior to the transactions contemplated herein may be abandoned expiration of its term pursuant to Section 4) at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by one party, upon written notice to the other parties if party, upon the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement occurrence of any of the parties heretofollowing events:
(i) either party may terminate the Agreement if Dr. Crystal dies, provided becomes disabled such that he cannot continue his employment at the Medical College, terminates his employment at the Medical College, or his employment at the Medical College is otherwise terminated;
(ii) either party may terminate the Agreement if, in the reasonable judgment of the terminating this Agreement shall not be party, termination is necessitated by reason of a change in material -------- default or breach hereunder and Laws; provided, furtherhowever, that the right to terminate --------- ------- this Agreement under this clause (b) Sponsor shall not use as a ground of termination such a change which could be available to any party whose failure to fulfill any obligation under this Agreement has been cured by a revision of Dr. Crystal's relationship with the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateSponsor;
(ciii) by either NBC a party may terminate the Agreement if it has a reasonable basis to believe that the other party has engaged in unlawful, unethical, or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation seriously inappropriate conduct such that continued performance of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation Agreement would affront legitimate interests of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawterminating party; or
(hiv) a party may terminate the Agreement if the other party has committed a material breach of the terms of this Agreement or the License Agreement and has failed to remedy such breach within [*] in relation to a payment-related breach, and [*] in relation to other breaches, following written notice thereof. For purposes of this Section 8, a failure by either NBC or Xenon 2 in the Sponsor to make any payment required pursuant to Section 5 shall be deemed a material breach.
(v) In the event there has been that a material default party intends to terminate the Agreement under Section 8.1(ii), (iii) or breach (iv), the party shall give written notice to that effect to the other party, which notice shall effect forthwith suspension of future performance of the Agreement. The party so notified may initiate arbitration under Section 19.5, by filing a request for arbitration with the American Arbitration Association, not later than [*] thereafter, and termination shall occur if (xa) NBC, where Xenon 2 arbitration is terminating this Agreementnot so initiated, or (yb) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyarbitrator finds that termination was reasonable.
(ivi) automatically Sponsor may provide notice of termination any time for any reason after [*] and without in any action by the parties upon the such case, such termination of the Xenon 2 Merger Agreementwill be effective [*] thereafter.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein hereby may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent of NBC the Seller Representative and Xenon 2Parent;
(b) by either NBC the Seller Representative or Xenon 2 Parent by giving written notice to the other parties Party if the transactions contemplated Closing shall not have occurred by this Agreement have not been consummated by December July 31, 19992015, unless extended by written agreement of the parties heretoSeller Representative and Parent (such date, provided the “Termination Date”); provided, that the party terminating this Agreement (i) Parent shall not be in material -------- default or breach hereunder and provided, further, that have the right to terminate --------- ------- this Agreement under pursuant to this clause Section 9.1(b) if the Company has the right to terminate this Agreement pursuant to Section 9.1(d) and (bii) the Company shall not be available have the right to any party whose failure to fulfill any obligation under terminate this Agreement pursuant to this Section 9.1(b) if Parent has been the cause of, or resulted in, the failure right to consummate the transactions contemplated by terminate this Agreement on or before such datepursuant to Section 9.1(e);
(c) by either NBC the Seller Representative or Xenon 2 Parent by giving written notice to the other Party if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States Authority shall have issued a final and unappealable permanent injunction, order, judgment an injunction or taken any other decree (other than a temporary restraining order) action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated herebyby this Agreement, provided and such order, decree, ruling or other Action shall not be subject to appeal or shall have become final and unappealable;
(d) by the Company, if there has been a breach of any representation, warranty, covenant or agreement made by Parent or Merger Sub in this Agreement, which breach (i) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii)(x) cannot be cured by Parent or Merger Sub prior to the Termination Date or (y) if capable of being cured, shall not have been cured by the earlier of (1) twenty (20) calendar days following receipt of written notice from the Company of such breach or (2) the date that is three (3) calendar days prior to the Termination Date; provided, that the party seeking to terminate this Agreement -------- under this clause (c) is Company shall not then in material breach of this Agreement and provided, further, that have the right to terminate this Agreement under pursuant to this clause -------- ------- (cSection 9.1(d) shall not be available if it is then in material breach of any of its representations, warranties, covenants or other agreements hereunder and such breach would give rise to any party who shall not have used reasonable commercial efforts to avoid the issuance failure of such order, decree a condition set forth in Section 6.3(a) or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;Section 6.3(b); or
(e) by NBC Parent and Merger Sub, if there has been a breach of any representation, warranty, covenant or agreement made by the Board of Directors of Xoom or Xenon 2 Company in this Agreement or any committee thereof such representation shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation become untrue after the date of this Agreement, the Xenon 2 Merger Agreement which breach or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved failure to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom be true (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable would give rise to the Xoom stockholders than the transactions contemplated by this Agreement failure of a condition set forth in Section 6.3(a) or Section 6.3(b) and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, cannot be cured by the Company by the Termination Date or (y) Xoom or Xenon 2if capable of being cured, where NBC is terminating this Agreement, in each case which default or breach is shall not curable, or if curable, is not have been cured within 30 by the earlier of (A) twenty (20) calendar days after following receipt of written notice from Parent of such breach or (B) the date that is given by three (3) calendar days prior to the non-breaching partyTermination Date; provided that, Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(e) if it or Merger Sub is then in material breach of any of their representations, warranties, covenants or other agreements hereunder and such breach would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Merger Agreement (CyrusOne Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing, whether before or after approval of this Agreement by the Company Shareholders:
(a) by mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 by written notice the Company, if there shall be any Legal Requirement enacted or deemed applicable to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided Merger that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the makes consummation of the transactions contemplated herebyMerger illegal, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) if any court Order by any Governmental Body of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment preventing or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated herebyMerger shall have become final and nonappealable; provided, provided however, that the party seeking to terminate this Agreement -------- under pursuant to this clause Section 8.1(b) must have used all reasonable efforts to remove any such Order prior to the Termination Date;
(c) is not then in material breach of by either Parent or the Company, if this Agreement and the Merger shall not have been approved by the vote of the Company Shareholders required by applicable Legal Requirements on or before the Termination Date; provided, furtherhowever, that the right Company shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure of the Company Shareholders to approve this Agreement is attributable to a failure on the part of the Company to perform its obligations under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingAgreement;
(d) by either NBC Parent, if there has been a material inaccuracy of any representation or Xenon 2 warranty, or a failure to comply with or perform any covenant or agreement contained herein on the part of Company which inaccuracy or failure causes any of the conditions set forth in Article 6 to not be satisfied; provided, however, that Parent may not terminate this Agreement under this Section 8.1(d) on account of an inaccuracy in the Company’s representations and warranties or on account of a failure to comply with or perform a covenant by the Company if upon a vote at a duly held Xoom Stockholders Meeting such inaccuracy or any adjournment thereof, failure is curable by the Xoom Stockholder Approval shall not have been obtained Company unless the Company fails to cure such inaccuracy or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting breach within 15 days after receiving written notice from Parent of such inaccuracy or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedfailure;
(e) by NBC the Company, if there has been a material inaccuracy of any representation or warranty, or a failure to comply with or perform any covenant or agreement contained herein on the Board part of Directors of Xoom Parent which inaccuracy or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or failure causes any of the transactions contemplated hereby conditions set forth in Article 7 to not be satisfied; provided, however, that the Company may not terminate this Agreement under this Section 8.1(e) on account of an inaccuracy in the Parent’s representations and warranties or therebyon account of a failure to comply with or perform a covenant by the Parent if such inaccuracy or failure is curable by the Parent unless the Parent fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Company of such inaccuracy or failure;
(f) by NBC Parent or the Company, if the Board Closing has not taken place on or before January 15, 2010 (the “Termination Date”) (other than as a result of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to any failure on the receipt part of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third terminating party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with or perform any of its fiduciary duties under applicable law; or
(h) by either NBC covenants or Xenon 2 obligations set forth in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party).
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Merger Agreement (Semtech Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned obligations of the parties hereunder shall thereupon cease (except with respect to those obligations theretofore accrued or to which by the express provisions of this Agreement survive such termination) at any time prior to during the Effective Timeterm hereof as follows:
(a) Either party may terminate this Agreement upon thirty (30) days’ prior written notice served by mutual written consent of NBC and Xenon 2;such party upon the other party, which notice shall state such party’s intent to terminate this Agreement.
(b) A non-defaulting party may terminate this Agreement if any default occurs in the performance of any obligation hereunder and such default continues for fifteen (15) days after written notice from such non-defaulting party to the defaulting party, which termination shall become effective as of the expiration of such fifteen (15) day period; provided however, if the default is of such a nature that it cannot be cured in such fifteen (15) day period, the defaulting party shall not be deemed to be in default if it commences to cure the default within such fifteen (15) day period and thereafter diligently pursues such cure to completion.
(c) This Agreement may be terminated upon the occurrence of any of the following events: (i) the filing by or against either NBC party of an involuntary petition in bankruptcy or Xenon 2 similar proceeding; (ii) the adjudication of a party as bankrupt or insolvent; (iii) the appointment of a receiver or trustee to take possession of all or substantially all of the assets of a party; (iv) a general assignment by a party for the benefit of creditors; or (v) any other action taken or suffered by a party under state or federal insolvency or bankruptcy law, or any comparable law which is now or hereafter may be in effect. Upon the occurrence of any such event, the non-defaulting party may, at its option, terminate this Agreement by written notice to the other parties if defaulting party, and upon the transactions contemplated by giving of such notice this Agreement have not been consummated by December 31and the term hereof shall immediately terminate.
(d) This Agreement may be terminated immediately upon giving written notice to Manager if Manager, 1999without the prior written consent of Owner, unless extended by written agreement shall assign, transfer or otherwise alienate its rights and obligations hereunder or attempt to do any of the parties hereto, provided that same in violation of Section 9.2 hereof.
(e) This Agreement may be terminated immediately upon the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to giving of written notice by any party whose failure hereunder to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 other party if (i) any Governmental Authority, the consent Property shall be damaged or approval destroyed to the extent of which is required for the consummation of the transactions contemplated hereby, shall have determined 25% or more by fire or other casualty and Owner elects not to grant its consent restore or approval and all appeals of replace such determination shall have been taken and have been unsuccessful property or (ii) any court there shall be a condemnation or deed in lieu thereof of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment 10% or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation more of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyProperty.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Credit Agreement (Macerich Co)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the adoption and approval of this Agreement by the Company’s stockholders):
(a) by the mutual written consent of NBC Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 by written notice to the other parties Company, if the transactions contemplated by Closing has not taken place on or before 5:00 p.m. (Pacific time) on the date that is 60 days following the date of this Agreement (the “End Date”); provided, however, if all the conditions set forth in Section 7 and Section 8 have been satisfied (other than those conditions that by their terms or nature are to be satisfied at the Closing) except that the required approvals under the antitrust laws of the jurisdictions set forth on Schedule 7.3 have not been consummated received by December 31the End Date, 1999, unless then the End Date shall be automatically extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and for an additional forty-five (45) days; provided, further, that neither Parent nor the right Company shall be permitted to terminate --------- ------- this Agreement under pursuant to this clause Section 9.1(b) if (bi) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated Mergers by the End Date results from, or is caused by, a material breach by such party of any of its representations, warranties, covenants or agreements contained herein (including any failure to fulfill in any material respect any of its obligations under Section 5.1(a) and Section 5.1(b)) or (ii) the other party is seeking through a Legal Proceeding to specifically enforce this Agreement on or before in accordance with Section 11.9 while any such dateLegal Proceeding is still pending;
(c) by either NBC Parent or Xenon 2 the Company if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunctionnonappealable Order, orderor shall have taken any other action, judgment or other decree (other than a temporary restraining order) having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided Mergers such that the conditions set forth in Section 7.8 and Section 8.6 would not be satisfied; provided, however, that a party seeking shall not be permitted to terminate this Agreement -------- under pursuant to this clause (cSection 9.1(c) is if such party did not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used use reasonable commercial best efforts to avoid the issuance of have such order, decree or rulingOrder vacated prior to its becoming final and nonappealable;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or Parent if: (i) any adjournment thereof, of the Xoom Stockholder Approval representations and warranties of the Company contained in this Agreement shall be inaccurate such that any condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company contained in this Agreement shall have been obtained breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred; provided, however, in the case of clauses “(i)” and “(ii)” only, an inaccuracy in any of the representations and warranties of the Company as of a date subsequent to the date of this Agreement or a breach of a covenant by NBC the Company is curable by the Company through the use of commercially reasonable efforts within thirty (30) calendar days after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the applicable Company Cure Period, provided the Company, during the applicable Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if upon a vote at a duly held Xenon 2 Stockholders Meeting such inaccuracy or any adjournment thereof, breach is cured prior to the Xenon 2 Stockholder Approval shall not have been obtainedexpiration of the applicable Company Cure Period);
(e) by NBC the Company if: (i) any of Parent’s representations and warranties contained in this Agreement shall be inaccurate such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if the Board any of Directors of Xoom or Xenon 2 or any committee thereof Parent’s covenants contained in this Agreement shall have withdrawn or modified been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, if an inaccuracy in any of Parent’s representations and warranties as of a manner adverse date subsequent to NBC its approval or recommendation the date of this Agreement, the Xenon 2 Merger Agreement or any a breach of a covenant by Parent is curable by Parent through the use of commercially reasonable efforts within thirty (30) calendar days after the Company notifies Parent in writing of the transactions contemplated hereby existence of such inaccuracy or thereby;breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Parent Cure Period); or
(f) by NBC Parent if any of the Board Required Merger Stockholder Votes are not obtained and delivered to Parent within 72 hours after the execution of Directors this Agreement; provided, however, that the right of Xoom Parent to exercise the termination right set forth in this Section 9.1(f) shall have accepted or recommended a Takeover Proposal or shall have resolved expire and no longer be exercisable if not exercised prior to do so;the time at which the Required Merger Stockholder Votes are obtained and delivered to Parent.
(g) by Xoom or Xenon 2Parent if any of the Joinder Agreements from those Stockholders necessary for the Company to obtain the Required Merger Stockholder Votes as set forth in Section 9.1(f) are not obtained and delivered to Parent within five Business Days after the Company has provided the Information Statement to its Stockholders in accordance with Section 4.3(a); provided, however, that the right of Parent to exercise the termination right set forth in this Section 9.1(f) shall expire and no longer be exercisable if not exercised prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms time at which the Board of Directors of Xoom (i) determines in good faith such Joinder Agreements are obtained and after consultation with a financial advisor of nationally recognized reputation delivered to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching partyParent.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: Merger Agreement (Life360, Inc.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by the mutual written consent of NBC the Purchaser and Xenon 2;the Seller.
(b) by either NBC the Purchaser or Xenon 2 by written notice to the other parties Seller if the transactions contemplated by this Agreement Asset Sale shall not have not been consummated by December 31November 30, 19992002 (the “Termination Date”); provided, unless extended by written agreement of the parties heretohowever, provided that the a party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right permitted to terminate --------- ------- this Agreement under pursuant to this clause (bSection 8.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, if the failure to consummate the transactions contemplated Asset Sale by the Termination Date is attributable to a failure on the part of such party to perform any covenant or obligation in this Agreement on required to be performed by such party at or before such dateprior to the Closing Date;
(c) by either NBC the Purchaser or Xenon 2 the Seller if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingTransactions;
(d) by either NBC the Purchaser or Xenon 2 the Seller if upon (i) the Seller Required Stockholder Vote is necessary under applicable law to approve the Asset Sale and any of the other Transactions, (ii) the Seller Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Stockholders shall have taken a final vote at on a duly proposal to approve the foregoing matters (or if the Seller otherwise attempts to obtain the Seller Required Stockholder Vote by written consent and is unable to obtain such Seller Required Stockholder Vote), and (iii) if a Seller Stockholders’ Meeting is held Xoom Stockholders Meeting or any adjournment thereof, and the Xoom Stockholder Approval foregoing matters shall not have been obtained or by NBC if upon a vote approved at a duly held Xenon 2 Stockholders the Seller Stockholders’ Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval (and shall not have been obtainedapproved at any adjournment or postponement thereof) by the Seller Required Stockholder Vote; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(d) if the failure to obtain the Seller Required Stockholder Vote is attributable to a failure on the part of such party to perform any covenant or obligation in this Agreement required to be performed by such party at or prior to the Closing Date;
(e) by NBC either the Purchaser or the Seller if (i) the Purchaser Required Stockholder Vote is necessary under applicable law to approve the Certificate Amendment, (ii) the Purchaser Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Purchaser’s stockholders shall have taken a final vote on a proposal to approve the foregoing matter (or if the Board Purchaser otherwise attempts to obtain the Purchaser Required Stockholder Vote by written consent and is unable to obtain such Purchaser Required Stockholder Vote), and (iii) if a Purchaser Stockholders’ Meeting is held and the foregoing matter shall not have been approved at the Purchaser Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Purchaser Required Stockholder Vote; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(e) if the failure to obtain the Purchaser Required Stockholder Vote is attributable to a failure on the part of Directors of Xoom such party to perform any covenant or Xenon 2 obligation in this Agreement required to be performed by such party at or any committee thereof shall have withdrawn or modified in a manner adverse prior to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or therebyClosing Date;
(f) by NBC the Purchaser if the Board Seller has Breached any of Directors the provisions of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do soSection 4.5;
(g) by Xoom the Purchaser if (i) any of the Seller’s representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or Xenon 2shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), prior such that the condition set forth in Section 6.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, any update of or modification to the Seller Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), or (ii) any of the Seller’s covenants or obligations contained in this Agreement shall have been Breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the Seller’s representations and warranties as of a date subsequent to the date of this Agreement or a Breach of a covenant or obligation by the Seller (A) is capable of being cured by the Seller and the Seller has cured such inaccuracy or Breach within 40 days of receipt of notice thereof from the Purchaser, or (B) is incapable of being cured and ten days have elapsed since the receipt of notice thereof from the Xoom Stockholder ApprovalPurchaser, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which then the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by Purchaser may not terminate this Agreement and (iiunder this Section 8.1(g) concludes in good faith based on the advice account of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawsuch inaccuracy or Breach; or
(h) by either NBC or Xenon 2 the Seller if (i) any of the representations and warranties of the Purchaser contained in this Agreement shall be inaccurate as of the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (y) Xoom or Xenon 2as if made on such subsequent date), where NBC is terminating this Agreement, such that the condition set forth in each case which default or breach is Section 7.1 would not curablebe satisfied, or (ii) if curableany of the covenants or obligations of the Purchaser contained in this Agreement shall have been Breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Purchaser as of a date subsequent to the date of this Agreement or a Breach of a covenant or obligation by the Purchaser (A) is capable of being cured by the Purchaser and the Purchaser has cured such inaccuracy or Breach within 40 days of receipt of notice thereof from the Seller, or (B) is incapable of being cured and ten days have elapsed since the receipt of notice thereof from the Seller, then the Seller may not cured within 30 days after written notice terminate this Agreement under this Section 8.1(h) on account of such breach is given by the non-breaching partyinaccuracy or Breach.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice This Agreement shall only be terminated prior to other remedies which its scheduled expiration upon the occurrence of any of the events set forth in this Section 13.2 (each a “Termination Event”):
a. The Parties may be ------------------ available to the parties by law or this Agreement, terminate this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written notice to mutual agreement.
b. Either Party may terminate this Agreement upon a material breach by the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, Party; provided that the party terminating this Agreement Party shall not be in material -------- default or breach hereunder and provided, further, that provide the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation breaching Party with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement written notice reasonably detailing such breach and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC such breach or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after receipt of such notice.
c. Sol-Gel may terminate this Agreement upon 10 days written notice to Perrigo, in the event that prior to the Launch Date, Sol-Gel in its good faith judgment determines that a significant adverse change has occurred and that P▇▇▇▇▇▇’▇ potential market for the Product envisaged at the time of entering into this Agreement has been reduced by [***], including without limitation, a reduction in the market due to regulatory changes, or the entering into the market of two generic competitors, including an authorized generic. It is clarified that in the event of such breach is given termination, Perrigo may continue the program and may Commercialize the Product without payment to Sol-Gel and Perrigo shall assume all development costs related to the program that are due and payable following the termination of this Agreement. If however, Perrigo determines to terminate the program, then any expenses, or future cancellation fees, which were approved by the Committee prior to the termination date and which cannot be cancelled or mitigated, shall be reimbursed by Sol-Gel in accordance with Section 3.2.
d. Either Party may terminate this Agreement upon 10 days written notice to the other Party, in the event that P▇▇▇▇▇▇’▇ external counsel determines that P▇▇▇▇▇▇’▇ Product formulation or manufacturing process infringes at least one valid claim of an issued, non-breaching partyexpired United States patent and, as a result, Perrigo decides not to Commercialize the Product.
e. Without prior written notice, a Party may terminate in the event that: (i) automatically and without the other Party is declared insolvent or bankrupt by a court of competent jurisdiction; (ii) a voluntary petition of bankruptcy is filed in any action court of competent jurisdiction by such other Party; or (iii) this Agreement is assigned by such other Party for the parties benefit of creditors. It is clarified however that once Sol-Gel has completed its investment in the Product development, Perrigo shall not be entitled to terminate the Agreement pursuant to this section.
f. Either Party may terminate this Agreement upon 30 days written notice to the termination other Party, in the event that Gross Profits relating to sales of the Xenon 2 Merger AgreementProduct do not exceed [***]. [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Appears in 1 contract
Sources: Development, Manufacturing and Commercialization Agreement (Sol-Gel Technologies Ltd.)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Closing (whether before or after the approval of the sale of the Transferred Assets to the Purchaser by the Seller’s stockholders):
(a) by the mutual written consent of NBC the Purchaser and Xenon 2the Seller.;
(b) by either NBC the Purchaser or Xenon 2 by written notice to the other parties Seller if the transactions contemplated Closing shall not have occurred by this Agreement have not been consummated by December 31November 30, 19992003; provided, unless extended by written agreement of the parties heretohowever, provided that the that: (i) a party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right permitted to terminate --------- ------- this Agreement under pursuant to this clause Section 8.1(b) if the failure of the Closing to have occurred by November 30, 2003 is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Closing; and (bii) the Seller shall not be available permitted to any party whose failure to fulfill any obligation under terminate this Agreement has been pursuant to this Section 8.1(b) unless the cause of, or resulted in, Seller shall have made any payment required to be made to the failure Purchaser pursuant to consummate the transactions contemplated by this Agreement on or before such dateSection 8.3;
(c) by either NBC the Purchaser or Xenon 2 the Seller if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, nonappealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation any of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingTransactions;
(d) by either NBC the Purchaser or Xenon 2 if upon the Seller if: (i) the Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Seller’s stockholders shall have taken a final vote at on a duly held Xoom Stockholders Meeting or any adjournment thereof, proposal to approve the Xoom Stockholder Approval sale of the Transferred Assets to the Purchaser; and (ii) the sale of the Transferred Assets to the Purchaser shall not have been obtained or by NBC if upon a vote approved at a duly held Xenon 2 Stockholders the Stockholders’ Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval (and shall not have been obtainedapproved at any adjournment or postponement thereof) by the Required Stockholder Vote; provided, however, that the Seller shall not be permitted to terminate this Agreement pursuant to this Section 8.1(d) unless the Seller shall have made the payment required to be made to the Purchaser pursuant to Section 8.3;
(e) by NBC the Purchaser (at any time prior to the approval of the sale of the Transferred Assets to the Purchaser by the Required Stockholder Vote) if the Board of Directors of Xoom or Xenon 2 or any committee thereof a Triggering Event shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or therebyoccurred;
(f) by NBC the Purchaser if any of the Board of Directors of Xoom Seller’s representations and warranties contained in this Agreement shall have accepted or recommended a Takeover Proposal been inaccurate as of the date of this Agreement or shall have resolved become inaccurate as of any subsequent date (as if made on such subsequent date), in either case such that the condition set forth in Section 6.1 would not be satisfied, or if any of the Seller’s covenants contained in this Agreement shall have been breached in any respect such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Seller as of a date subsequent to do sothe date of this Agreement or a breach of a covenant by the Seller is curable by the Seller through the use of commercially reasonable efforts within 30 calendar days after the Purchaser notifies the Seller in writing of the existence of such inaccuracy or breach (the “Seller Cure Period”), then the Purchaser may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Seller Cure Period, provided the Seller, during the Seller Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Purchaser may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Seller Cure Period);
(g) by Xoom the Seller if any of the Purchaser’s representations and warranties contained in this Agreement shall have been inaccurate as of the date of this Agreement or Xenon 2shall have become inaccurate as of any subsequent date (as if made on such subsequent date), in either case such that the condition set forth in Section 7.1 would not be satisfied, or if any of the Purchaser’s covenants contained in this Agreement shall have been breached in any respect such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by the Purchaser is curable by the Purchaser through the use of commercially reasonable efforts within 30 calendar days after the Seller notifies the Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Seller may not terminate this Agreement under this Section 8.1(g) as a result of such inaccuracy or breach prior to the receipt expiration of the Xoom Stockholder ApprovalPurchaser Cure Period, on five business days written noticeprovided the Purchaser, ifduring the Purchaser Cure Period, Xoom receives, without violating its obligations under continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Seller may not terminate this Agreement pursuant to this Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i8.1(g) determines in good faith and after consultation with a financial advisor of nationally recognized reputation respect to be more favorable such inaccuracy or breach if such inaccuracy or breach is cured prior to the Xoom stockholders than expiration of the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable lawPurchaser Cure Period); or
(h) by either NBC the Seller, if the Seller shall have withheld, withdrawn, amended or Xenon 2 modified the Seller Board Recommendation in a manner permitted by Section 4.5(c); provided, however, that the event there has been a material default or breach by (xSeller shall not be permitted to terminate this Agreement pursuant to this Section 8.1(h) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
if: (i) automatically and without any action during the five business day period referred to in Section 4.5(c) (as such period may be extended by the parties upon Seller in its discretion), the termination Seller shall not have negotiated in good faith with the Purchaser to make adjustments in the terms and conditions of this Agreement such that this Agreement as so adjusted provides the Xenon 2 Merger AgreementSeller with a transaction that is at least as favorable as the Superior Offer; (ii) during the period referred to in clause “(i)” of this sentence, the Purchaser agrees to make adjustments in the terms and conditions of this Agreement such that this Agreement as so adjusted provides the Seller with a transaction that is at least as favorable as the Superior Offer; or (iii) the Seller shall not have made the payment required to be made to the Purchaser pursuant to Section 8.3.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available Except as otherwise provided in Section 3.01(b) below, the Forbearance Period shall automatically terminate immediately upon prior written notice (including via email among counsel) from the Agent or the Required Supporting Lenders to the parties by law or this AgreementBorrower of the occurrence of any of the following events (each, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:a “Termination Event”):
(a) by mutual written consent the failure of NBC and Xenon 2any Loan Party to comply with any term, condition, or covenant set forth in this Agreement;
(b) by other than the Specified Defaults, there occurs either NBC any Event of Default or Xenon 2 by Default under the Credit Agreement that is not cured within five (5) Business Days after the Borrower’s receipt of written notice to from the other parties if Agent or the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, Required Supporting Lenders; provided that the party terminating Forbearance Period shall automatically terminate without notice immediately upon the occurrence of an Event of Default under Section 8.01(g) or 8.01(h) of the Credit Agreement; provided, however, it is agreed that the entry into this Agreement and any filings or other statements related thereto shall not be the occurrence of an event described in material -------- default or breach hereunder Section 8.01(g)(ii) of the Credit Agreement and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) therefore shall not be available to any party whose failure to fulfill any obligation under this Agreement has been terminate the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateForbearance Period;
(c) the Borrower, in writing (including via email among counsel), notifies any Supporting Lender or its representatives that it is terminating discussions with the Supporting Lenders regarding a Potential Transaction;
(d) any representation or warranty made by either NBC any Loan Party contained in this Agreement or Xenon 2 in any certificate, document or financial or other statement furnished by the Borrower or any other Loan Party at any time under or in connection with this Agreement shall be incorrect in any material respect as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall have been untrue or incorrect in any material respect as of such earlier date; provided, that if any such representation or warranty is qualified by or subject to a materiality qualification, such representation or warranty shall fail to be true and correct (after giving effect to any qualification therein) in all respects;
(e) the commencement of any action, suit, litigation, investigation or other proceeding against the Agent or any Supporting Lender by any Loan Party or any of its Affiliates asserting claims relating in any way to the Credit Agreement, the other Credit Documents or this Agreement;
(f) any transaction or payment by any Loan Party or Restricted Subsidiary that is outside of the ordinary course of business of such Loan Party or Restricted Subsidiary, provided that any transaction or payment made by any Loan Party or Restricted Subsidiary in connection with or as a result of its financial condition, including but not limited to payments of advisor fees, legal fees, work-out, refinancing restructuring-related costs, or similar payments, shall be deemed to have been made in the ordinary course of business of such Loan Party or Restricted Subsidiary;
(g) the incurrence by any Loan Party or Restricted Subsidiary of any Lien under clauses (xi) and (xii) of Section 7.16 of the Credit Agreement;
(h) the granting of any security interest by any Loan Party or any Restricted Subsidiary other than pursuant to any Credit Document (including, without limitation, any security interest in any Equity Interests in Gotham Advanced Media and Entertainment, LLC (“GAME”));
(i) the incurrence by any Loan Party or Restricted Subsidiary of any Indebtedness for funded debt or any Indebtedness under clauses (vii) (in excess of $2,500,000.00), (x) (in excess of $2,000,000.00), (xii), (xiii) and (xv) of Section 7.14 of the Credit Agreement; provided that the Loan Parties and the Restricted Subsidiaries shall be permitted to incur obligations in respect of corporate overhead or other amounts allocated from Sphere Entertainment or Sphere Entertainment Group to any Loan Party or Restricted Subsidiary so long as such obligations are (i) not paid in cash, (ii) unsecured and (iii) do not exceed $300,000.00 in the aggregate from and after the Effective Date;
(j) the making of any Investment by any Loan Party or Restricted Subsidiary other than (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful Investment in any Loan Party or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree Permitted Investment (other than a temporary restraining orderany Permitted Investment under clause (e) restraining, enjoining or otherwise prohibiting the consummation (k) of the transactions definition thereof);
(k) the making of any Permitted Parent Payment by any Loan Party or Restricted Subsidiary, except payment in respect of indemnities incurred by the Parent, officers, and/or directors in connection with managing the business or affairs of the Parent, the Loan Parties or any Subsidiary, provided that such payments are pursuant to agreements or arrangements in effect at the Parent prior to the Original Effective Date;
(l) the making of any, direct or indirect, Restricted Payment by any Loan Party or Restricted Subsidiary (other than payments to Loan Parties) (including with respect to reimbursement of legal or other professional fees and expenses, but excluding any customary director fees and expenses (including payments in respect of indemnification obligations) and employee and officer compensation (including, but not limited to, bonuses) in the ordinary course of business, provided, that the payments of such customary director fees and expenses and employee and officer compensation shall not exceed $50,000.00 in the aggregate from and after the Effective Date, provided, further, such aggregate cap shall not apply to payments in respect of indemnities incurred by the Parent, officers, and/or directors in connection with managing the business or affairs of the Parent, the Loan Parties, or any Subsidiary);
(m) the making of any other payment or transfer of value, assets or property by any Loan Party to the Parent or any of its Affiliates (other than the Loan Parties), except pursuant to (i) agreements or arrangements in effect prior to the Original Effective Date, or (ii) any future agreements or arrangements that are on a basis no less favorable to the Loan Party or such Restricted Subsidiary than those that could be obtained at the time for a comparable transaction in an arm’s-length dealing with an unrelated third party (or for purposes of agreements or arrangements with GAME, on a basis no less favorable to the Loan Party or such Restricted Subsidiary than those obtained for a substantially comparable transaction between GAME and YES Network);
(i) any amendment, waiver, supplement or other modification to any employment agreement or employee compensation plan by any Loan Party other than in the ordinary course of business, (ii) the entry by any Loan Party into any new employment agreement or employee compensation plan other than in the ordinary course of business; (iii) the payment of any amount contemplated herebyby any employment agreement or employee compensation plan before the date on which such amount becomes due and payable pursuant to the terms of such agreements or plans, as applicable; or (iv) the payment of any bonus, incentive, retention, severance, change of control, or termination payment, except for payments when due in accordance with the terms of any employment agreement or employee compensation plan that any Loan Party has entered into prior to the Original Effective Date, as applicable, provided that in no event during the Forbearance Period shall any change of control or similar payments be paid as a result of this Agreement or any contemplated restructuring of the Obligations;
(o) the effecting of any transaction under Section 7.22 or Section 7.23 of the Credit Agreement by any Loan Party or Restricted Subsidiary;
(p) the incurrence of any Guarantee in excess of $2,000,000.00 by any Loan Party or Restricted Subsidiary under clause (v) of Section 7.15 of the Credit Agreement;
(q) the effecting of any transaction with any Affiliate by any Loan Party or Restricted Subsidiary, except as permitted under Section 7.20 of the Credit Agreement (other than clauses (d) and (h) thereof);
(r) the making of any Disposition by any Loan Party or any Restricted Subsidiary under clause (iv) of Section 7.24 of the Credit Agreement;
(s) the formation, establishment, or acquisition of any Subsidiary by any Loan Party or by any Restricted Subsidiary;
(t) the taking of any action by any Loan Party or Restricted Subsidiary that results in a Guarantor becoming an Excluded Subsidiary;
(u) the failure by the Borrower to provide written notice to ▇▇▇▇▇ ▇▇▇▇ within three (3) Business Days of receipt of any written notice of any proceeding commenced, or, to the actual knowledge of the Borrower (with such actual knowledge to be the actual knowledge of the Chief Executive Officer, the Executive Vice President of Business Affairs and Distribution, the Borrower’s in-house legal counsel, or the Borrower’s outside advisors at PJT Partners LP and/or ▇▇▇▇, ▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP so long as such notice is received by persons at such firms who are advising the Borrower in connection with this Agreement), threatened against any Loan Parties;
(v) subject to applicable confidentiality restrictions, the failure of the Loan Parties to promptly provide any information regarding the Loan Parties and their subsidiaries reasonably requested from time to time by ▇▇▇▇▇ ▇▇▇▇ or FTI, provided that the party seeking Loan Parties shall have two (2) Business Days to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, cure such failure from the date that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance Agent or Supporting Lenders provide written notice of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required pursuant to comply with its fiduciary duties under applicable lawthis Section 3.01(v);
(i) the failure by the Borrowers to pay any of the reasonable and documented fees and expenses of Advisors within five (5) Business Days after the receipt of an invoice therefor or (ii) the termination by the Borrower of the engagement letter between the Borrower and FTI, unless there shall have been a breach by FTI of the terms thereof; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given the failure by the non-breaching partyBorrower to pay in cash, on or before April 7, 2025, all accrued and unpaid interest on all outstanding Obligations and any other accrued and unpaid fees under the Loan Documents through April 7, 2025.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeabandoned:
(a) by mutual written consent of NBC and Xenon 2the Parties, if the board of directors (or a duly authorized committee thereof) of each Party so determines;
(b) after the date that is 12 months following the Agreement Date (the “Outside Date”), by either NBC or Xenon 2 any Party by written notice to the other parties Party if the transactions contemplated by this Agreement Closing shall not have not been consummated by December 31, 1999, unless extended by written agreement of occurred on or prior to the parties hereto, Outside Date; provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that (x) the right to terminate --------- ------- this Agreement under this clause (bSection 10.1(b) shall not be available to any party Party whose failure to fulfill perform any obligation of its obligations under this Agreement has been the principal cause of, or resulted in, the failure of the Closing to consummate the transactions contemplated by this Agreement occur on or before such datedate and (y) the right to terminate this Agreement under this Section 10.1(b) shall not be available to the Arion Entities if, prior to the Outside Date, (i) Arion fails to obtain the full Required Amount, (ii) Sphinx is otherwise entitled to terminate this Agreement pursuant to Section 10.1(f) and (iii) Sphinx has provided written notice to Arion that it has elected to effect the Purchase Transaction pursuant to the alternative structure referenced in Section 6.16(g) (such notice the, “Alternative Structure Notice”) and is negotiating in good faith with Arion to make such changes to the organizational and other related documents thereof necessary to implement such alternative structure; provided, further that, notwithstanding the foregoing clause (y)(iii), the Arion Entities shall be entitled to terminate this Agreement under this Section 10.1(b) if the Outside Date has passed and the Parties fail to consummate the Closing contemplated by the Alternative Structure Notice previously delivered to Arion within ten Business Days after Sphinx has provided such notice (unless such failure is a result of Arion’s failure to reasonably cooperate in good faith to make such necessary changes);
(c) by either NBC or Xenon 2 Party by notice to the other Party, if (i) any a Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court Authority of competent jurisdiction in the United States shall have issued a nonappealable final and unappealable permanent injunction, order, judgment decree or ruling or taken any other decree (other than a temporary restraining order) nonappealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, by this Agreement to occur on the Closing Date; provided that neither Party shall have the party seeking right to terminate this Agreement -------- pursuant to this Section 10.1(c) if such Party’s failure to perform its obligations under this clause Agreement has been the principal cause of, or resulted in, such order, decree or ruling or other action or (cii) is not then in material any U.S. federal or state Law has been enacted that would make the consummation of the transactions contemplated by this Agreement illegal;
(d) by Sphinx, if there has been a breach of any representation or warranty set forth in Article 5, or a breach of or failure to perform any covenant or agreement on the part of Arion set forth in this Agreement Agreement, which breach or failure to perform (i) would cause the conditions set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied if the date on which such breach or failure to perform was the Closing Date and provided(ii) shall not have been cured within 20 Business Days (or by the Outside Date, further, if earlier) following receipt by Arion of written notice of such breach from Sphinx; provided that the right to terminate this Agreement under pursuant to this clause -------- ------- (cSection 10.1(d) shall will not be available to Sphinx if Sphinx is then in breach of, or has failed to perform with respect to, any party who shall not have used reasonable commercial efforts to avoid the issuance representations, warranties, covenants or agreements contained in this Agreement such that any condition set forth in Section 7.3(a) or Section 7.3(b) is incapable of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtainedbeing satisfied;
(e) by NBC Arion, if there has been a breach of any representation or warranty set forth in Article 4, or a breach of or failure to perform any covenant or agreement on the Board part of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified Sphinx set forth in a manner adverse to NBC its approval or recommendation of this Agreement, which breach or failure to perform (i) would cause the Xenon 2 Merger conditions set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied if the date on which such breach or failure to perform was the Closing Date and (ii) shall not have been cured within 20 Business Days (or by the Outside Date, if earlier) following receipt by Sphinx of written notice of such breach or failure to perform from Arion; provided that the right to terminate this Agreement pursuant to this Section 10.1(e) will not be available to Arion if Arion is then in breach of, or has failed to perform with respect to, any representations, warranties, covenants or agreements contained in this Agreement such that any condition set forth in Section 7.2(a) or Section 7.2(b) is incapable of the transactions contemplated hereby or thereby;being satisfied; or
(f) by NBC Sphinx, if (i) Arion shall have failed to consummate the Purchase Transactions within two Business Days after the date on which the Closing should have occurred pursuant to Section 8.1, (ii) all the conditions set forth in Section 7.1 and Section 7.3 would have been satisfied if the Board Closing were to have occurred at such time (other than those conditions that by their terms are to be satisfied on the Closing Date; provided that such conditions would have been satisfied as of Directors of Xoom the date on which the Closing should have occurred pursuant to Section 8.1) and (iii) Sphinx shall have accepted or recommended a Takeover Proposal or shall have resolved irrevocably confirmed in writing to do so;
(g) by Xoom or Xenon 2, Arion at least two Business Days prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required pursuant to comply with its fiduciary duties under applicable law; or
this Section 10.1(f) (hwhich confirmation may be given on the date the Closing should have occurred) by either NBC that Sphinx stands ready, willing and able to consummate the Purchase Transactions (subject to the satisfaction or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice waiver of such breach is given by the non-breaching party.
(i) automatically and without any action by the parties upon the termination all of the Xenon 2 Merger Agreementconditions set forth in Section 7.2); provided that during such period of two Business Days following the date the Closing should have occurred pursuant to Section 8.1, no Party shall be entitled to terminate this Agreement pursuant to this Section 10.1(f) and Sphinx cooperates with Arion to effect the Closing.
Appears in 1 contract
Sources: Purchase Agreement (Symantec Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective TimeClosing:
(a) by mutual written consent Parent if the Closing has not taken place on or before 5:00 p.m. (Pacific time) on October 18, 2013 (the “Expiration Date”) (other than as a result of NBC and Xenon 2any failure on the part of Parent to comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement or in any other agreement or instrument delivered to the Company in connection with the transactions contemplated by this Agreement);
(b) by either NBC the Company if the Closing has not taken place on or Xenon 2 by written notice before 5:00 p.m. (Pacific time) on the Expiration Date (other than as a result of any failure on the part of the Company or any of the stockholders of the Company to the comply with or perform any covenant or obligation set forth in this Agreement or in any other parties if agreement or instrument delivered to Parent in connection with the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateAgreement);
(c) by either NBC Parent or Xenon 2 if the Company if: (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any a court of competent jurisdiction in the United States or other Governmental Body shall have issued a final and unappealable permanent injunction, non-appealable order, judgment decree or ruling, or shall have taken any other decree (other than a temporary restraining order) action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Body that would make consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingMerger illegal;
(d) by either NBC Parent if: (i) any of the representations and warranties of the Company contained in this Agreement shall be inaccurate as of the date of this Agreement, or Xenon 2 if upon shall have become inaccurate as of a vote at a duly held Xoom Stockholders Meeting date subsequent to the date of this Agreement, such that the condition set forth in
Section 7.1 would not be satisfied; or (ii) any adjournment thereof, of the Xoom Stockholder Approval covenants of the Company contained in this Agreement shall not have been obtained breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Company as of a date subsequent to the date of this Agreement or a breach of a covenant by NBC the Company is curable by the Company through the use of reasonable efforts within twenty (20) days following the date Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period; provided the Company, during the Company Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if upon a vote at a duly held Xenon 2 Stockholders Meeting such inaccuracy or any adjournment thereof, breach is cured prior to the Xenon 2 Stockholder Approval shall not have been obtainedexpiration of the Company Cure Period);
(e) by NBC if the Board Company if: (i) any of Directors Parent’s representations and warranties contained in this Agreement shall be inaccurate as of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation the date of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved become inaccurate as of a date subsequent to do so;
the date of this Agreement, such that the condition set forth in Section 8.1 would not be satisfied; or (gii) if any of Parent’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Xoom Parent is curable by Parent through the use of reasonable efforts during the period within twenty (20) days following the date the Company notifies Parent in writing of the existence of such inaccuracy or Xenon 2breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the receipt expiration of the Xoom Stockholder ApprovalParent Cure Period; provided Parent, on five business days written noticeduring the Parent Cure Period, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by Company may not terminate this Agreement and (iipursuant to this Section 9.1(e) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required with respect to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default such inaccuracy or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default if such inaccuracy or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by prior to the non-breaching party.
(i) automatically and without any action by the parties upon the termination expiration of the Xenon 2 Merger AgreementParent Cure Period).
Appears in 1 contract
Termination Events. Without prejudice (a) This Agreement shall automatically terminate upon the occurrence of any of the following events (the “Termination Events”), unless such automatic termination is waived in writing by the Requisite Consenting Lenders, the Shareholder Party and the Company, within three (3) days of the occurrence of such event, and in accordance with the requirements of Section 4, in which case the Termination Event so waived shall be deemed not to other remedies which may be ------------------ available to the parties by law or this Agreementhave occurred, this Agreement may shall be terminated deemed to continue in full force and effect, and the transactions contemplated herein may rights and obligations of the Parties hereto shall be abandoned at restored, subject to any time prior modification set forth in such waiver; provided, however, that the waiver of the Company and the Shareholder Party, but not the Requisite Consenting Lenders, shall be required with respect to any automatic termination to the Effective Time:
extent that such automatic termination occurs pursuant to paragraphs (axvi) by mutual written consent of NBC and Xenon 2;
or (bxx) by either NBC or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and below; provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) waiver of Requisite Consenting Lenders, but not the Shareholder Party, Worldwide or the Company, shall not be available required with respect to any party whose failure automatic termination to fulfill the extent that such automatic termination occurs pursuant to any obligation under this Agreement has been the cause ofof paragraphs (xiii), (xv), (xxiv), or resulted in(xxv) below; provided, further, that the failure waiver of Requisite Consenting Lenders and the Shareholder Party, but not Worldwide or the Company, shall be required with respect to consummate any automatic termination to the transactions contemplated extent that such automatic termination occurs pursuant to paragraph (xiv).
(i) In the event Travelport LLC has not issued the Second Lien Opco Term Loan (as defined in the Term Sheet) by this Agreement on or before such dateOctober 7, 2011;
(cii) In the event the Restructuring has not been completed out-of-court by either NBC October 7, 2011 and the Company has not commenced a Chapter 11 Case or Xenon 2 if Bermuda proceeding by October 7, 2011;
(iii) If the Company files a Chapter 11 Case by October 7, 2011, the Disclosure Statement with respect to the Plan shall not have been approved and the Plan shall not have been confirmed by the earlier of (i) any Governmental Authority60 days after filing the Chapter 11 Case and (ii) December 6, 2011;
(iv) If the Company files a Chapter 11 Case or Bermuda Proceeding by October 7, 2011, the consent Company shall fail, within three (3) business days of such filing, to file the Plan or the Scheme of Arrangement with the U.S. bankruptcy court or the Bermuda Supreme Court, as applicable, together with any related Disclosure Statement;
(v) If the Company files a Chapter 11 Case by October 7, 2011, the Plan shall not have been substantially consummated within twenty days after the confirmation of the Plan;
(vi) The Restructuring Documents are not in form and substance reasonably satisfactory to the Company, the Requisite Consenting Lenders or the Shareholder Party within the relevant time frames set forth in this Agreement;
(vii) Any Chapter 11 Case filed by the Company is dismissed or is converted to a case under chapter 7 of the Bankruptcy Code;
(viii) If the Company files a Chapter 11 Case, the bankruptcy court shall enter an order appointing (A) a trustee under chapter 7 or chapter 11 of the Bankruptcy Code or (B) a responsible officer or an examiner, in either case, with enlarged powers relating to the operation of the business (powers beyond those set forth in subclauses (3) and (4) of Section 1106(a)) under Section 1106(b) of the Bankruptcy Code;
(ix) If the Company files a Chapter 11 Case by October 7, 2011, the orders of the bankruptcy court confirming the Plan or approving the Disclosure Statement related thereto shall have been stayed, reversed, vacated or otherwise modified, other than merely ministerial modifications (e.g., with respect to names, addresses and similar modifications);
(x) Any court shall enter a final, non-appealable judgment or order declaring this Agreement or any material portion hereof to be unenforceable;
(xi) Any court shall enter an order denying confirmation of the Plan or approval of which is required for the consummation Scheme of the transactions contemplated herebyArrangement or any analogous event described in clauses (vii), shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful (viii) or (iiix) shall occur in any Bermuda Proceeding if one is commenced to effectuate the Scheme of Arrangement;
(xii) Any governmental authority, including any court of competent jurisdiction or regulatory authority, grants relief that is inconsistent with this Agreement in any material respect (with such amendments and modifications as have been effected in accordance with the United States shall have issued a final and unappealable permanent injunction, order, judgment terms hereof) or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of a material portion of the transactions Restructuring;
(xiii) The entry of an order by any court of competent jurisdiction invalidating or disallowing any portion of the Claims or subordinating or limiting, as applicable, the enforceability, priority, amount or validity of any portion of the Claims;
(xiv) Following the commencement of the Chapter 11 Case, the Company (i) withdraws the Plan or (ii) publicly announces its intention to not support the Plan but, only if, such withdrawal or announcement does not occur in the context of a termination of this Agreement, as contemplated herebypursuant to paragraph (xvii) below;
(xv) Any material breach of this Agreement by the Company, the Shareholder Party or Worldwide; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by such Party of such breach from the Requisite Consenting Lenders or the Shareholder Party of such breach (provided that the party seeking to terminate this Agreement -------- under this clause (c) is none of the Initial Consenting Lenders or Requisite Consenting Lenders are not then in material breach of its obligations hereunder), and such breach, if capable of being cured, remains uncured for a period of five (5) business days;
(xvi) Any material breach of this Agreement by a Consenting Lender; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by the Consenting Lenders of such breach from either the Company, Worldwide or the Shareholder Party (provided that the Party giving notice of a breach by a Consenting Lender is not itself in material breach of its obligations hereunder) and such breach, if capable of being cured, remains uncured for a period of five (5) business days;
(xvii) Immediately upon delivery by any of the Company, Worldwide or the Shareholder Party (collectively, the “Notifying Parties” and each, a “Notifying Party”) to the Consenting Lenders of notice (in accordance with Section 25 below) of its intent, in the exercise of its fiduciary duties (set forth in Section 19 below) to take any action that is otherwise prohibited hereunder or to refrain from taking any action that is required hereunder (a “Fiduciary Out Notice”); provided, further, however that the right to terminate no Notifying Party shall have or incur any liability under this Agreement under this clause -------- ------- (c) shall not be available or otherwise on account of, arising out of or otherwise relating to any party who other Notifying Party’s issuance of a Fiduciary Out Notice;
(xviii) Travelport LLC shall not have used reasonable commercial efforts received amendments and consents consistent in all material respects with the Term Sheet on a basis reasonably acceptable to avoid the issuance Company, in either case, as necessary to effectuate the Restructuring and by the requisite percentage or number of such orderthe lenders party to Opco Credit Facility by October 7, decree or ruling2011;
(dxix) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained[Reserved];
(exx) by NBC if the The Board of Directors of Xoom or Xenon 2 or any committee thereof the Company’s direct subsidiary, Travelport Limited, shall have withdrawn not received by October 7, 2011, solvency opinions from a nationally recognized valuation firm for those subsidiaries to which a solvency opinion is reasonably required to consummate the Restructuring and in form and substance reasonably acceptable to the Company and sufficient under applicable law, in each case, for such purpose;
(xxi) [Reserved];
(xxii) [Reserved];
(xxiii) By mutual written consent of the Company, the Shareholder Party and the Requisite Consenting Lenders;
(xxiv) The occurrence of an Event of Default under the PIK Credit Agreement, other than as a result of the Company’s entry into this Agreement or modified the taking of any actions required or contemplated by, and consistent with, the terms of this Agreement; or
(xxv) The failure of the Bermuda Monetary Authority to approve (i) each of the Consenting Lenders and (ii) at least 70% of the Lenders as of the date hereof to be shareholders of Worldwide, in each case, within (x) twenty days after confirmation of the Plan or (y) October 31, 2011 if the Restructuring is consummated out of court, or such later date as shall be agreed to by the Consenting Lenders.
(b) Upon a manner adverse termination of this Agreement in accordance with this Section 8, no Party hereto shall have any continuing liability or obligation to NBC any other Party hereunder and the provisions of this Agreement shall have no further force or effect, except for the provisions in Sections 10-11 and 13-25, each of which shall survive termination of this Agreement; provided that no such termination shall relieve any Party from liability for its approval breach or recommendation non-performance of its obligations hereunder prior to the date of such termination (other than as set forth in Sections 8(a)(xvii), (xviii) and (xx)). In addition, the Company’s obligation to reimburse the Initial Consenting Lenders for their out of pocket costs and expenses, including professional fees as set forth in the Term Sheet up to the date of termination of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of survive such breach is given by the non-breaching partytermination.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be unilaterally terminated without penalty by the Licensee or the Licensor (in each case a "Terminating Party") in the manner set forth in Section 16.3 if there is the occurrence of any of the circumstances or events described below with respect to (i) if the Terminating Party is the Licensee, the Licensor, and (ii) if the transactions contemplated herein may be abandoned at any time prior to Terminating Party is the Effective Time:Licensor, the Licensee (in each case, a "Terminated Party"):
(a) by mutual written consent any regulatory or court order is issued under or pursuant to any applicable law of NBC any jurisdiction in which the Terminated Party conducts a substantial portion of its business, which operates to prevent the Terminated Party from performing its obligations under this Agreement in a material respect and Xenon 2such order is not stayed or rendered ineffective within 90 days of its issuance, or a Third Party encumbrancer takes possession of all or a substantial part of the properties and assets of the Licensee, or if a distress or execution or any similar process is levied or enforced against the Licensee which affects such properties and assets and remains unsatisfied for 90 days;
(b) any order to cease or suspend trading in any securities of the Licensee, or prohibiting or restricting the distribution of any of the Licensee's shares is made by either NBC any securities regulatory authority, including the TSX, NASDAQ or Xenon 2 any other competent authority in any jurisdiction where the Licensee's is a reporting issuer (or the equivalent thereof) provided that: (i) the delisting of the securities of the Licensee from the NASDAQ national or small capital markets shall not constitute a ground of termination under this Section 16.2 if the listing of such securities on another recognized exchange is maintained; (ii) such order is not made as a result of a take-over bid or another acquisition of a controlling interest in the Licensee's by written a Third Party; (iii) such order has been effective for a period in excess of 30 days and has not been stayed or otherwise rendered ineffective; and (iv) the Terminating Party has served a notice of termination to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement Licensee in accordance with Section 16.3 within 90 days of the parties hereto, provided that the party terminating this Agreement shall not be issuance of such order and while such order was in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such dateeffect;
(c) by if the Terminated Party is prevented from complying, either NBC totally or Xenon 2 if (i) in part, with any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent terms or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach provisions of this Agreement and provided, further, that by reason of Force Majeure for a period longer than 180 days or the right Terminated Party has failed to terminate this Agreement meet its obligations under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or rulingArticle 15;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereofin the event that, the Xoom Stockholder Approval shall performance thresholds set forth in Section 7.4 are not have met by the Licensee, unless such non performance is caused by a default of the Licensor hereunder and Licensor has been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, notified of such default and has not cured the Xenon 2 Stockholder Approval shall not have been obtainedsame in accordance with the terms and conditions set forth hereunder;
(e) by NBC if the Board Terminated Party institutes any proceeding or takes any action or executes any agreement to authorize its participation in or commencement of Directors any proceeding, or if any bona fide proceeding is commenced by a Third Party against or affecting the Terminated Party and such proceeding is not discharged within 30 days from the commencement thereof, seeking (i) to adjudicate it a bankrupt or insolvent, (ii) liquidation, dissolution, winding-up, reorganization, arrangement, protection, relief or composition of Xoom or Xenon 2 it or any committee thereof shall have withdrawn of its property or modified debt, (iii) a proposal with respect to it under any law relating to bankruptcy, insolvency, liquidation, reorganization or compromise of debts or other similar laws (including, without limitation, the Companies' Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Winding-Up and Restructuring Act (Canada) or any similar statute of any jurisdiction, including any statute governing the existence of the Terminated Party) or (iv) the appointment of a receiver, trustee, manager, liquidator, interim receiver or manager, agent, custodian or other official with similar powers or functions for it or for any substantial part of its properties and assets (including without limitation, with respect to the Licensee, the Production Facility) and, with respect to the Licensor , the Cascade Process or the intellectual property related to the production of Resin); or
(f) in a manner adverse any other circumstances not covered by subsections (a) to NBC (e) of this Section 16.2, if, while the Terminating Party is in compliance in all material respects with its approval or recommendation of obligations under this Agreement, the Xenon 2 Merger Agreement or Terminated Party defaults in any material respect in the performance of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel fails to cure that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after following written notice of such breach is given by thereof from the non-breaching partyTerminating Party.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Sources: License Agreement (Hemosol Corp)
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties Parties by law Law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeabandoned:
(a) by mutual written consent of NBC and Xenon 2the Parties;
(b) after the Outer Date, by either NBC or Xenon 2 any Party by written notice to the other parties Party if the transactions contemplated by this Agreement Closing shall not have not been consummated by December 31, 1999, unless extended by written agreement of on or prior to the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and Outer Date; provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, furtherhowever, that the right to terminate this Agreement under this clause -------- ------- (cSection 8.1(b) shall not be available to any Party whose action or failure or whose Affiliate’s action or failure to perform any of its obligations under this Agreement, or failure to act in good faith, has been the principal cause of, or resulted in, the failure of the Closing to occur on or before such date; and provided, further, that neither Purchaser nor Seller shall have the right to terminate this Agreement pursuant to this Section 8.1(b) in the event the other party who shall not have used reasonable commercial efforts has initiated Proceedings to avoid specifically enforce this Agreement while such Proceedings are still pending;
(c) by any Party prior to the issuance Closing by notice to the other Party, if a final, non-appealable Order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement has been issued after the date hereof by any federal or state court in the United States having jurisdiction (unless such order, decree or rulingruling has been withdrawn, reversed or otherwise made inapplicable); provided, however, that the Party seeking to terminate this Agreement pursuant to this Section 8.1(c) shall have complied with Section 5.3 hereunder to prevent the entry of and to remove or avoid the imposition of such Order;
(d) by either NBC Seller prior to the Closing, upon written notice to Purchaser, if (i) Purchaser shall have materially breached any of the covenants or Xenon 2 if upon agreements contained in this Agreement to be complied with by Purchaser unless, to the extent such breach is capable of being cured, Purchaser shall have cured such breach within fifteen (15) days of receiving notice from Seller of such breach or (ii) there exists a vote at a duly held Xoom Stockholders Meeting breach of any representation or any adjournment thereof, warranty of Purchaser contained in this Agreement such that the Xoom Stockholder Approval shall closing condition set forth in Section 6.2(a) would not have been obtained or be satisfied and such breach is incapable of being cured by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;Outer Date; or
(e) by NBC Purchaser prior to the Closing, upon written notice to Seller, if the Board of Directors of Xoom or Xenon 2 or any committee thereof (i) Seller shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or materially breached any of the transactions contemplated hereby covenants or thereby;
(f) agreements contained in this Agreement to be complied with by NBC if Seller, Seller Subsidiary, the Board Company or the Company Subsidiary unless, to the extent such breach is capable of Directors of Xoom being cured, Seller shall have accepted cured such breach within fifteen (15) days of receiving notice from Purchaser of such breach or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes there exists a breach of any representation or warranty of Seller contained in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(hsuch that the closing condition set forth in Section 6.3(a) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is would not curable, or if curable, is not cured within 30 days after written notice of be satisfied and such breach is given incapable of being cured by the non-breaching partyOuter Date.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of NBC directors of Parent and Xenon 2the Company;
(b) by either NBC Parent or Xenon 2 by written notice to the other parties Company if the transactions contemplated by this Agreement Merger shall not have not been consummated by December 31August 15, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and 2007; provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 if (i) any Governmental Authority, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, provided that the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, furtherhowever, that the right to terminate this Agreement under this clause -------- ------- (cSection 9.1(b) shall not be available to any party who whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall not have used reasonable commercial efforts to avoid the issuance of such issued a final and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either NBC Parent or Xenon 2 the Company if upon (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote at on a duly held Xoom Stockholders Meeting or any adjournment thereofproposal to adopt this Agreement, the Xoom Stockholder Approval and (ii) this Agreement shall not have been obtained or by NBC if upon a vote adopted at a duly held Xenon 2 Stockholders the Company Stockholders’ Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval (and shall not have been obtainedadopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by NBC either Parent or the Company if the Board of Directors of Xoom or Xenon 2 or Parent Stockholders’ Meeting (including any committee thereof adjournments and postponements thereof) shall have withdrawn been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or modified in postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a manner adverse to NBC its approval or recommendation material breach by Parent of this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if the Board of Directors of Xoom a Parent Triggering Event shall have accepted or recommended a Takeover Proposal or shall have resolved to do sooccurred;
(g) by Xoom or Xenon 2, Parent (at any time prior to the receipt approval of the Xoom Merger by the Required Company Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, ) if a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; orCompany Triggering Event shall have occurred;
(h) by either NBC the Company, upon a breach of any representation, warranty, covenant or Xenon 2 agreement on the part of Parent or Merger Sub set forth in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement, or (y) Xoom if any representation or Xenon 2, where NBC is terminating warranty of Parent or Merger Sub set forth in this AgreementAgreement shall have become inaccurate, in each either case which default such that the conditions set forth in Section 8.1 or breach is Section 8.2 would not curable, or if curable, is not cured within 30 days after written notice be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is given curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the non-breaching party.earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) automatically by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and without any action warranties or breach by the parties Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination of the Xenon 2 Merger Agreementbecoming effective).
Appears in 1 contract
Sources: Merger Agreement (Diversa Corp)
Termination Events. Without prejudice You shall have the right to other remedies which may be terminate ------------------ available to the parties by law or this Agreement, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Time:
(a) Closing Date or any Additional Closing Date, as the case may be, by mutual written consent of NBC and Xenon 2;
(b) by either NBC or Xenon 2 by written giving notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 Company if (i) any Governmental Authoritydomestic or international event, act or occurrence has materially disrupted, or in your opinion will in the immediate future materially disrupt, the consent or approval of which is required for the consummation of the transactions contemplated hereby, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful securities markets; or (ii) if there shall have been a general suspension of, or a general limitation on prices for, trading in securities on the New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market or any court regional stock exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of competent jurisdiction major hostilities or other national or international calamity; or (iv) if a banking moratorium has been declared by a state or federal authority; or (v) if a moratorium in foreign exchange trading by major international banks or persons has been declared; or (vi) if there shall have been a material interruption in the mail service or another means of communications within the United States; or (vii) if the Company shall have sustained a material or substantial loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in your opinion make it inadvisable to proceed with the offering, sale or delivery of the Shares; or (viii) if any material governmental restrictions shall have been imposed on trading in securities in general, which restrictions are not in effect on the date hereof; or (ix) if there shall be passed by the Congress of the United States shall or by any state legislature any act or measure, or adopted by any governmental body or authoritative accounting institute or board, or any governmental executive orders, rules or regulations, which you believe are likely to have issued a final and unappealable permanent injunctionmaterial adverse effect on the business, order, judgment financial condition or other decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the consummation financial statements of the transactions contemplated hereby, provided that Company or the party seeking to terminate this Agreement -------- under this clause (c) is not then in material breach of this Agreement and provided, further, that the right to terminate this Agreement under this clause -------- ------- (c) shall not be available to any party who shall not have used reasonable commercial efforts to avoid the issuance of such order, decree or ruling;
(d) by either NBC or Xenon 2 if upon a vote at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;
(e) by NBC if the Board of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse to NBC its approval or recommendation of this Agreement, the Xenon 2 Merger Agreement or market for any of the transactions contemplated hereby Company's securities; or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBCif there shall have been such change in the market for Company's securities or securities in general or in political, where Xenon 2 is terminating this Agreementfinancial or economic conditions as in your judgment makes it inadvisable to proceed with the offering, sale and delivery of the Firm Shares or the Additional Shares, as the case may be, on the terms contemplated by the Prospectus; or (xi) the Company or any Selling Stockholder shall have failed, refused or been unable to perform in any material respect any agreement or covenant on its, his or her part to be performed hereunder, failed to satisfy any condition required to be performed or satisfied by it, he or she, or breached in any material respect any representation or warranty contained herein; (yxii) Xoom any of the conditions precedent to your obligations as set forth in Section 8 hereof are not satisfied; or Xenon 2, where NBC is terminating this Agreement, (xiii) if in each case your judgment any Material Adverse Effect shall have occurred since the respective dates as of which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach information is given by in the non-breaching partyRegistration Statement or the Prospectus.
(i) automatically and without any action by the parties upon the termination of the Xenon 2 Merger Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be ------------------ available to the parties by law or this Agreement, this This Agreement may by notice be terminated and the transactions contemplated herein may be abandoned at any time prior to the Effective Timeterminated:
(a) by mutual written consent of NBC and Xenon 2;
(b) by either NBC Seller or Xenon 2 by written notice to the other parties if the transactions contemplated by this Agreement have not been consummated by December 31, 1999, unless extended by written agreement of the parties hereto, provided that the party terminating this Agreement shall not be in material -------- default or breach hereunder and provided, further, that the right to terminate --------- ------- this Agreement under this clause (b) shall not be available to Buyer at any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure to consummate the transactions contemplated by this Agreement on or before such date;
(c) by either NBC or Xenon 2 time if (i) any Governmental Authority, the consent or Entity which must grant a requisite regulatory approval has denied approval of which is required the Contemplated Transactions, requested that an application submitted for a requisite regulatory approval be withdrawn, or notified or advised any party that such Governmental Entity will not grant (or intends to rescind or revoke if previously approved) any requisite regulatory approval with respect to the consummation of the transactions contemplated herebyContemplated Transactions, shall have determined not to grant its consent or approval and all appeals of such determination shall have been taken and have been unsuccessful or (ii) any court Governmental Entity imposes a condition in connection with approval of the Contemplated Transactions which, in the good faith judgment of Seller or Buyer, will materially impair the ability of Buyer to complete the Contemplated Transactions; or (iii) any Governmental Entity of competent jurisdiction in the United States shall have issued a final and unappealable permanent injunction, order, judgment or other decree (other than a temporary restraining order) restraining, nonappealable order enjoining or otherwise prohibiting the consummation of the transactions contemplated herebyContemplated Transactions; provided, provided however, that no party shall have the right to terminate this Agreement pursuant to this Section 10.1(a) if the denial or order referred to above shall be due to the failure of the party seeking to terminate this Agreement -------- under to perform or observe any of its covenants or agreements set forth herein; or
(b) by either Buyer or Seller at any time, if a breach of any material representation, warranty or obligation contained in this clause Agreement has been committed by the other party and such breach has not been cured as permitted hereby or waived; or
(c) (i) by Buyer at any time if any of the conditions to Buyer’s obligation to complete the Closing specified in Sections 7 or 9 have not been satisfied as of the Closing Date or if satisfaction of such a condition is not then in material breach or becomes impossible (other than through the failure of this Agreement and provided, further, that the right Buyer to terminate this Agreement comply with their obligations under this clause -------- ------- Agreement) and Buyer has not waived such condition on or before the Closing Date; or (cii) shall by Seller at any time, if any of the conditions to Seller’s obligation to complete the Closing specified in Sections 8 or 9 have not be available to any party who shall not have used reasonable commercial efforts to avoid been satisfied as of the issuance Closing Date or if satisfaction of such order, decree a condition is or ruling;becomes impossible (other than through the failure of Seller to comply with its obligations under this Agreement) and Seller has not waived such condition on or before the Closing Date; or
(d) by either NBC or Xenon 2 if upon a vote the mutual consent of Buyer and Seller at a duly held Xoom Stockholders Meeting or any adjournment thereof, the Xoom Stockholder Approval shall not have been obtained or by NBC if upon a vote at a duly held Xenon 2 Stockholders Meeting or any adjournment thereof, the Xenon 2 Stockholder Approval shall not have been obtained;time; or
(e) by NBC either Buyer or Seller on or after December 30, 2010, if the Board Closing has not occurred for any reason (other than through the failure of Directors of Xoom or Xenon 2 or any committee thereof shall have withdrawn or modified in a manner adverse party seeking to NBC its approval or recommendation of terminate this Agreement, the Xenon 2 Merger Agreement or any of the transactions contemplated hereby or thereby;
(f) by NBC if the Board of Directors of Xoom shall have accepted or recommended a Takeover Proposal or shall have resolved to do so;
(g) by Xoom or Xenon 2, prior to the receipt of the Xoom Stockholder Approval, on five business days written notice, if, Xoom receives, without violating comply fully with its obligations under Section 5.5 hereof, a bona fide Takeover ----------- Proposal from a third party on terms which the Board of Directors of Xoom (i) determines in good faith and after consultation with a financial advisor of nationally recognized reputation to be more favorable to the Xoom stockholders than the transactions contemplated by this Agreement and (ii) concludes in good faith based on the advice of outside legal counsel that termination of this Agreement is required to comply with its fiduciary duties under applicable law; or
(h) by either NBC or Xenon 2 in the event there has been a material default or breach by (x) NBC, where Xenon 2 is terminating this Agreement) on or before such date, or (y) Xoom or Xenon 2, where NBC is terminating this Agreement, in each case which default or breach is not curable, or if curable, is not cured within 30 days after written notice of such breach is given by the non-breaching party.
(i) automatically and without any action by later date as the parties upon the termination of the Xenon 2 Merger Agreementmay agree in writing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Royal Bancshares of Pennsylvania Inc)