Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders: (a) by mutual written consent of Parent and the Company; (b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8; (c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable; (d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement; (e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or (f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by By mutual written consent of Parent by the Company and the CompanyRequisite Noteholders;
(b) by Parent By either of the Company or the Company Purchaser if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Body shall have issued a final an order, decree or ruling or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger Transactions and such order, decree, ruling or other action is or shall have become final and nonappealable; provided however, that the party terminating this Agreement pursuant to this Section 15.1(b) shall have used all commercially reasonable efforts to have such order, decree, ruling or action vacated;
(c) By either of the Company or the Purchaser if the Closing shall not have occurred on or before March 31, 2002; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b15.1(c) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the party seeking primary cause of, or resulted in, the failure of the Closing not occurring on or before such date;
(d) By the Company if, prior to terminate the Closing, in response to a Superior Proposal, the Board of Directors of the Company, in exercise of its fiduciary duties, reasonably determines in good faith, based upon the written advice of independent outside legal counsel, that the Board of Directors of the Company is required to do so in order to comply with its fiduciary duties to the Company Stockholders under applicable law;
(e) By the Purchaser or Medtronic, if (i) any of the conditions set forth in Section 6 shall fail to be satisfied and the Purchaser and Medtronic shall not have waived such party failure or (ii) any of the representations or warranties of the Company shall at any time on or after the date hereof be untrue in any material respect (unless such representation or warranty by its terms applies to a specific date, in which case such representation or warranty shall have been untrue at such date) or the Company shall at any time on or after the date hereof breach in any material respect any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;covenants or obligations hereunder.
(cf) by Parent By the Company, if (i) any of the Merger conditions set forth in Section 6A shall fail to be satisfied and the Company shall not have been consummated waived such failure or (ii) any of the representations or warranties of the Purchaser or the Additional Note Purchasers shall at any time on or before September 15after the date hereof be untrue in any material respect (unless such representation or warranty by its terms applies to a specific date, 2008 (the “Parent Termination Date”), in which case such representation or by the Company if the Merger warranty shall not have been consummated untrue at such date) or the Purchaser or any Additional Note Purchaser shall at any time on or before September 30after the date hereof breach in any material respect any of its covenants or obligations hereunder. Notwithstanding anything else contained in this Agreement, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c) 15.1 shall not be available to the any party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any that (i) is in material breach of its obligations hereunder or (ii) whose failure to fulfill its obligations or to comply with its covenants under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that satisfy any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier obligations of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentparty hereunder.
Appears in 3 contracts
Sources: Note Purchase Agreement (Horizon Medical Products Inc), Note Purchase Agreement (Horizon Medical Products Inc), Note Purchase Agreement (Horizon Medical Products Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned abandoned, at any time prior to the Effective TimeClosing, notwithstanding adoption thereof by the Stockholdersas follows:
(a) by mutual written consent of Parent Seller and the CompanyPurchaser;
(b) by Parent or Seller, in the Company if any court event that (i) Seller is not then in material breach of competent jurisdiction or other Governmental Entity having jurisdiction over the Company this Agreement and (ii) (A) Purchaser shall have issued a final orderbreached, decree failed to perform or ruling violated its covenants or taken agreements under this Agreement or (B) any other final action restraining, enjoining or otherwise prohibiting of the Merger representations and such order, decree, ruling or other action is or warranties of Purchaser set forth in this Agreement shall have become final inaccurate, and nonappealable; providedin either case of clause (A) or clause (B) where such breach, howeverfailure to perform, that violation or inaccuracy (I) would result in the right failure of any of the conditions set forth in Section 7.3(a) or Section 7.3(b) to terminate this Agreement pursuant to this Section 8.1(bbe satisfied and (II) shall is not be available capable of being cured by the Outside Date or, if capable of being cured by the Outside Date, is not cured by Purchaser before the earlier of (x) the business day immediately prior to the party seeking Outside Date and (y) the thirtieth (30th) calendar day following receipt of written notice from Seller of such breach, failure to terminate if such party perform, violation or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8inaccuracy;
(c) by Parent if Purchaser, in the Merger shall event that (i) Purchaser is not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate then in material breach of this Agreement pursuant and (ii) (A) Seller shall have breached, failed to perform or violated its covenants or agreements under this Section 8.1(cAgreement or (B) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries the representations and warranties of Seller set forth in this Agreement shall have become inaccurate, in either case of clause (A) or clause (B) where such breach, failure to perform, violation or inaccuracy (I) would result in the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required the conditions set forth in Section 7.2(a) or Section 7.2(b) to be performed at or satisfied and (II) is not capable of being cured by the Outside Date or, if capable of being cured by the Outside Date, is not cured by Seller before the earlier of (x) the business day immediately prior to the Effective Time has been Outside Date and (y) the cause ofthirtieth (30th) calendar day following receipt of written notice from Purchaser of such breach, failure to perform, violation or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableinaccuracy;
(d) by either Purchaser or Seller, in the Company if there shall have been a breach of any representationevent that the Closing has not occurred on or before the date that is six (6) months after the date hereof (the “Outside Date”); provided that (i) if, warranty, covenant or agreement on the part Outside Date, all of Parent or Merger Sub contained in this Agreement such that any condition the conditions set forth in subsection Article VII, other than the conditions set forth in Section 7.1(a) (ato the extent any such injunction or order is in respect of, or any such Law is, the HSR Act or any other Antitrust Law) or (bSection 7.1(b) of Section 7.3 would not and those conditions that by their nature are to be satisfied andat the Closing (if such conditions would be satisfied were the Closing to occur at such time), in either such case, such breach is not curable or then the Outside Date shall not have been cured prior to the earlier automatically be extended for all purposes hereunder by a period of three (A3) ten (10) Business Days following written notice of such breach to Parent months and (Bii) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if shall not be available to any Party whose action or failure to fulfill any obligation under this Agreement has been a proximate cause of the Company is then in failure of the Closing to occur by the Outside Date and such action or failure to act constitutes a material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(fe) by Parent at any time prior to either Seller or Purchaser if a Governmental Entity of competent jurisdiction shall have issued a final, non-appealable order, injunction, decree or ruling in each case permanently restraining, enjoining or otherwise prohibiting the date and time that the Company Requisite Vote is obtained and a copy consummation of the written consent is delivered to ParentTransactions.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Broadcom Inc.), Asset Purchase Agreement (Symantec Corp)
Termination. This Agreement may be terminated and the Merger and other transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether before or after the Company Stockholders’ Approval (with any termination by the Stockholders:Parent also being an effective termination by Merger Sub):
(a) by mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company if any court Governmental Authority of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final and non-appealable order, decree decree, judgment, injunction or ruling or taken any other final and non-appealable action restrainingenjoining, enjoining restraining or otherwise prohibiting the Merger and consummation of the Merger; provided that the party seeking to terminate this Agreement shall have used its reasonable best efforts to have such order, decree, judgment, injunction or ruling or other action is or shall have become final lifted if and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are extent required to comply with by Section 6.86.3;
(c) by either Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 2011 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c) shall not be available to the any party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the a principal cause of, of or resulted in, in the failure of the Effective Time Merger to occur be consummated on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(d) by Parent, in the event of a material breach by the Company if there shall have been a breach of any representation, warranty, covenant or other agreement on contained herein, or if a representation or warranty of the part Company shall have become untrue or inaccurate after the date of Parent or Merger Sub contained this Agreement, which situation in this Agreement such that any either case (i) would result in a failure of a condition set forth in subsection (aSection 7.2(a) or (b) of Section 7.3 would not be satisfied and7.2(b), in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (Bii) has not been or cannot reasonably be expected to be cured by the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by the Company, in the event of a material breach by Parent if there shall have been a breach or Merger Sub, as the case may be, of any representation, warranty, covenant or other agreement on contained herein, or if a representation or warranty of Parent or Merger Sub, as the part case may be, shall have become untrue or inaccurate after the date of the Company contained this Agreement, which situation in this Agreement such that any either case (i) would result in a failure of a condition set forth in subsection (aSection 7.3(a) or Section 7.3(b), and (bii) of Section 7.2 would has not been or cannot reasonably be satisfied and, in expected to be cured by the Termination Date;
(f) by either such case, such breach is not curable Parent or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) if the Company Stockholders or Parent Termination DateStockholders, respectively, shall have failed to approve the matters presented thereto pursuant to this Agreement at the Company Stockholders’ Meeting or Parent Stockholders’ Meeting, as applicable, or at any adjournment or postponement thereof; provided provided, however, that Parent shall not have the right to no party may terminate this Agreement pursuant to this Section 8.1(e8.1(f) if such party has breached in any material respect any of its obligations under this Agreement, in each case in a manner that caused the failure to obtain the Company Stockholders’ Approval at the Company Stockholders’ Meeting or the Parent Stockholders’ Approval at the Parent Stockholders’ Meeting, as applicable, or Merger Sub at any adjournment or postponement thereof;
(g) by Parent, if (i) the Company Board shall have failed to include the Company Recommendation in the Joint Proxy Statement or publicly announced or proposed an intent to fail to do so, (ii) the Company Board or any committee thereof shall have made a Company Adverse Recommendation Change or publicly announced or proposed an intent to do so or (iii) the Company shall have entered into, or the Company Board shall have authorized or approved or proposed to authorize or approve, any Contract with respect to a Company Acquisition Proposal (other than any confidentiality agreement permitted by Section 6.4(c));
(h) by the Company, if (i) the Parent Board shall have failed to include the Parent Recommendation in the Joint Proxy Statement or publicly announced or proposed an intent to fail to do so, (ii) the Parent Board or any committee thereof shall have made a Parent Adverse Recommendation Change or publicly announced or proposed an intent to do so or (iii) Parent shall have entered into, or the Parent Board shall have authorized or approved or proposed to authorize or approve, any Contract with respect to a Parent Acquisition Proposal (other than any confidentiality agreement permitted by Section 6.5(c));
(i) by the Company in order to enter into a definitive agreement with respect to a Company Superior Proposal in accordance with the terms of Section 6.4(e), but only if the Company (i) is then not in material breach of any of its covenants or agreements contained Section 6.4 and (ii) shall concurrently with, and as a condition to, such termination pay the Termination Amount to Parent in this Agreementaccordance with Section 8.2(c)(ii) and Section 8.2(d); or
(fj) by Parent at any time prior in order to enter into a definitive agreement with respect to a Parent Superior Proposal in accordance with the terms of Section 6.5(e), but only if Parent (i) is not in material breach of Section 6.5 and (ii) shall concurrently with, and as a condition to, such termination pay the Parent Termination Amount to the date Company in accordance with Section 8.2(c)(iv) and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentSection 8.2(d).
Appears in 3 contracts
Sources: Merger Agreement (Rock-Tenn CO), Merger Agreement (SMURFIT-STONE CONTAINER Corp), Merger Agreement (Rock-Tenn CO)
Termination. This Agreement may be terminated terminated, and the Merger contemplated hereby Mergers may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by mutual written consent agreement of the Company and Parent and (notwithstanding any approval of this Agreement by the stockholders of the Company);
(b) by either Parent or the Company Company, upon written notice to the other party, if the Closing has not occurred on or before 11:59 p.m., New York City time, on July 9, 2025 (such time, the “End Date”); provided that, the right to terminate this Agreement under this Section 8.01(b) shall not be available to any party whose material breach of any provision of this Agreement has been the proximate cause of, or has proximately resulted in, the failure of the Mergers to be consummated by the End Date;
(c) by either Parent or the Company, upon written notice to the other party, if any court Governmental Authority of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling and non-appealable permanent Order or taken any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the Merger consummation of the transactions contemplated by this Agreement and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b8.01(c) shall not be available to any party whose material breach of any provision of this Agreement has been the party seeking to terminate if proximate cause of, or has proximately resulted in, such party Order or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8other action;
(cd) by either Parent or the Company, upon written notice to the other party, if the Merger shall Stockholder Approval has not have been consummated on obtained at the Stockholder Meeting (as may be adjourned or before September 15postponed thereof in accordance with Section 6.04);
(e) by Parent, 2008 (upon written notice to the “Parent Termination Date”)Company, or in the event of a breach by the Company of any representation, warranty, covenant or other agreement contained herein that (i) would result in any condition set forth in Section 7.02 not being satisfied and (ii) has not been cured prior to the earlier of the End Date or the 30th day following Parent’s delivery of written notice describing such breach to the Company; provided, however, that Parent shall not be entitled to terminate this Agreement pursuant to this Section 8.01(e) if either Parent, Acquirer, Merger Sub or Merger Sub II is in breach of its obligations under this Agreement that would result in any condition set forth in Section 7.03 not being satisfied;
(f) by the Company, upon written notice to Parent, in the event of a breach by Parent, Acquirer, Merger Sub or Merger Sub II of any representation, warranty, covenant or other agreement contained herein that (i) would result in any condition set forth in Section 7.03 not being satisfied and (ii) has not been cured prior to the earlier of the End Date or the 30th day following the Company’s delivery of written notice describing such breach to Parent; provided, however, that the Company shall not be entitled to terminate this Agreement pursuant to this Section 8.01(f) if the Merger Company is in breach of its obligations under this Agreement that would result in any condition set forth in Section 7.02 not being satisfied;
(g) by Parent, upon written notice to the Company, at any time prior to receipt of the Stockholder Approval, (A) if the Company Board, acting upon the recommendation of the Special Committee, shall not have been consummated on effected an Adverse Recommendation Change or before September 30(B) the Company has committed a material breach of its obligations under Section 6.02 or Section 6.03; or
(h) by the Company, 2008 upon written notice to Parent, at any time prior to receipt of the Stockholder Approval, if (i) the “Company Termination Date”has received a Superior Proposal and (ii) the Company Board or any committee thereof, acting upon the recommendation of the Special Committee, shall have determined to terminate this Agreement in accordance with Section 6.03(b) in order for the Company to enter into a definitive agreement with respect to the applicable Superior Proposal (with such definitive agreement being entered into substantially concurrently with the termination of this Agreement (but in no case prior to the termination of this Agreement)); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) Company shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or pay the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach Fee to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been 9.04, concurrently with and as a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement condition to such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parenttermination.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Clearwater Analytics Holdings, Inc.), Agreement and Plan of Merger (Enfusion, Inc.), Agreement and Plan of Merger (Enfusion, Inc.)
Termination. This Agreement may be terminated terminated, and the Merger contemplated hereby may be abandoned abandoned, at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholdersby:
(ai) by mutual written consent of Parent the Company and the CompanyAcquiror;
(bii) either party, by Parent or written notice to the Company other party, if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such ordershall not have been consummated by October 15, decree, ruling or other action is or shall have become final and nonappealable2001; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(bclause (ii) shall not be available to the any party seeking whose failure to terminate if such party perform any obligation or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on any material agreement or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations covenant under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicablethat date;
(diii) Acquiror, by written notice to the Company, if prior to the Stockholders Meeting, the Board or the Special Committee (A) shall withdraw or modify in any manner adverse to Acquiror its approval or recommendation of this Agreement or the Merger, (B) shall approve or recommend any Acquisition Proposal by a party other than Acquiror, or (C) shall resolve to take any of the actions specified in clause (A) or (B);
(iv) the Company, by written notice to Acquiror, if the Board or the Special Committee determines that an Acquisition Proposal constitutes a Superior Acquisition Proposal and, in its good faith judgment, after consultation with counsel, that failing to terminate this Agreement would be inconsistent with the Board's or the Special Committee's duties under the MGCL, provided that the Company has complied in all material respects with all the provisions of Section 4.1, including the notice provisions therein;
(v) either party, by written notice to the other party, if there shall have been a breach at any time (A) any of any representation, warranty, covenant the representations or agreement on warranties of the part of Parent or Merger Sub contained other party set forth in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would are qualified as to materiality shall not be satisfied and, true and correct in either any respect or any such case, such breach is representations or warranties that are not curable or so qualified shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent be true and correct in any material respect, or (B) the Company Termination Dateother party shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of the other party to be performed or complied with by it under this Agreement and such untruth, incorrectness or failure cannot be or has not been cured within 20 business days after the giving of written notice to the other party; provided provided, however, that the Company shall not have the right to terminate this Agreement pursuant under clause (A) shall not be available to this Section 8.1(d) if Acquiror to the Company is then in material breach of extent based on any of its covenants representation or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part warranty of the Company contained that a Continuing Stockholder actually knew was not true or correct in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied anda material respect when made, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant under clause (B) shall not be available to this Section 8.1(eAcquiror to the extent based on a failure to perform any obligation or to comply with any agreement or covenant caused by action taken by a Continuing Stockholder.
(vi) Acquiror, by written notice to the Company, if Parent after the date hereof there shall have occurred a Company Material Adverse Effect;
(vii) the Company, by written notice to Acquiror, if the Board or Special Committee, in its good faith exercise of its business judgment (based on the advice of counsel), has determined that the Board continuing to recommend to the holders of Common Shares the approval of the Merger Sub is then in material would be reasonably likely to be a breach of any the duties of the Board under the MGCL;
(viii) the Company (unless the Company is in breach of its covenants obligations under Section 5.1) or agreements contained in this AgreementAcquiror, by written notice to the other, if upon a vote at the Stockholders Meeting, the Stockholder Approval shall not have been obtained;
(ix) either party, by written notice to the other party, if any court of competent jurisdiction or other governmental entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and nonappealable; or
(fx) Acquiror, by written notice to the Company, if the Company shall have failed to hold the Stockholders Meeting by September 15, 2001, and either of the following shall have occurred prior to such date: (A) any corporation, partnership, person, other entity or "group" (as referred to in Section 13(d)(3) of the Exchange Act) other than Acquiror or any of its affiliates (collectively, "Third Persons") shall have become the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 15% of the outstanding Common Shares; or (B) any Third Person shall have made, proposed, communicated or disclosed in a manner which is or becomes known: (i) by Parent at stockholders beneficially owning 5% or more of the outstanding Common Shares or (ii) by any time prior director or officer of the Company, an intention to make a bona fide Acquisition Proposal, unless in the date and time case of the condition in clause (B), the Company is able to sustain the burden of showing that the Company Requisite Vote is obtained and a copy failure to hold the Stockholders Meeting was caused primarily by factors other than knowledge of such intention to make an Acquisition Proposal. Any action to be taken to terminate this Agreement under this Section shall be taken by, or pursuant to authority granted by, the written consent is delivered to ParentBoard (as recommended by the Special Committee) or Acquiror's members, as the case may be.
Appears in 3 contracts
Sources: Merger Agreement (G & L Tender LLC), Merger Agreement (G&l Realty Corp), Merger Agreement (Gottlieb Daniel M)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of this Agreement and the Merger by the Stockholdersstockholders of the Company:
(a) by mutual written consent of Parent each of Acquiror and the Company;
(b) by Parent either the Company or Acquiror if the other shall have breached, or failed to comply with, any of its obligations under this Agreement or any representation or warranty made by such other party shall have been incorrect when made or shall have since ceased to be true and correct in any material respect, and such breach, failure or misrepresentation is not cured within thirty (30) days after notice thereof and such breach, failure or misrepresentation, results or would reasonably be expected to result in a Company Material Adverse Effect or an Acquiror Material Adverse Effect;
(c) by either Acquiror or the Company if any decree, permanent injunction, judgment, order or other action by any court of competent jurisdiction or other any Governmental Entity having jurisdiction over the Company shall have issued a final order, decree preventing or ruling or taken any other final action restraining, enjoining or otherwise prohibiting consummation of the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(cd) by Parent either Acquiror or the Company if the Merger Agreement shall fail to receive the requisite vote for approval and adoption by the stockholders of the Company at the Stockholders' Meeting;
(e) by either the Company or Acquiror if the merger shall not have been consummated on or before September 15June 30, 2008 1998 (the “Parent "Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”"); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(e) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or Date.
(f) by Acquiror if the Board of Directors of the Company Termination Dateor any committee thereof shall have withdrawn or modified its approval or recommendation of the Merger or this Agreement in any manner adverse to Acquiror, as applicable;or approved or recommended any Acquisition Proposal (other than the Merger), or shall have resolved to take any of the foregoing actions (provided that a termination pursuant to this provision will be subject to Section 9.3 hereof); and
(dg) by the Company if there the Board of Directors of the Company or any committee thereof shall have been a breach withdrawn or modified its approval or recommendation of any representation, warranty, covenant the Merger or agreement on the part of Parent or Merger Sub contained in this Agreement such in any manner adverse to Acquiror, or approved or recommended any Acquisition Proposal (other than the Merger); provided, however, that any condition set forth in subsection (a) or (b) the Company has complied with all provisions of Section 7.3 would not be satisfied and7.10(b), in either such caseincluding the notice provisions therein, such breach is not curable or shall not have been cured prior to and the earlier requirements of Section 9.3 hereof (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the termination described in this clause (g) shall not be effective unless and until the Company shall not have paid to Acquiror the right to terminate this Agreement pursuant to this fee described in Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent9.3 hereof).
Appears in 3 contracts
Sources: Merger Agreement (Loral Space & Communications LTD), Merger Agreement (Loral Space & Communications LTD), Merger Agreement (Orion Network Systems Inc/New/)
Termination. This Agreement may be terminated and the ----------- Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption approval thereof by the Stockholdersstockholders of the Company:
(a) by mutual written consent of Parent Parent, Acquisition Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity having of competent jurisdiction over the Company shall have issued a final an order, decree or ruling or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by Parent or the Company, if Acquisition Sub shall have (i) failed to commence the Offer as provided in Section 1.1, (ii) terminated or withdrawn the Offer without purchasing any Shares pursuant to the Offer or (iii) failed to pay for Shares pursuant to the Offer by July 1, 1999 (the "Termination Date"); provided, however, that the right to terminate this Agreement pursuant to ----------------- -------- under this Section 8.1(bsubparagraph (c) shall not be available (x) to any party (including Acquisition Sub's failure in the party seeking case of Parent) whose failure to terminate if such party or fulfill any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause ofor resulted in one of the circumstances described in clause (i), (ii) or (iii), (y) to the Company if any of the events specified in Section 6.2(d) of the Stockholder Agreement shall have occurred, or resulted in, the failure a breach of the Effective Time Stockholder Agreement by any Seller has been the cause or resulted in one of the circumstances described in clause (i), (ii), or (iii) or (z) to occur on any party if Acquisition Sub, Parent or before their affiliates shall have exercised the Parent Termination Date or Option unless such exercise subsequently is voided under the Company Termination Date, as applicableterms of the Stockholder's Agreement;
(d) by Parent or Acquisition Sub, at any time prior to the purchase by Acquisition Sub, Parent or their affiliates of Shares pursuant to and subject to the conditions of the Offer or the purchase of the KKR Shares upon the exercise of the Option pursuant to the Stockholder Agreement, if (i) any representation or warranty of the Company if contained herein or of the Sellers contained in the Stockholder Agreement that is qualified as to materiality shall not be true and 57 correct or any representation or warranty of the Company contained herein or of the Sellers contained in the Stockholder Agreement that are not so qualified shall not be true and correct in any material respect, (ii) there shall have been a breach of any representation, warranty, covenant or agreement on (including Section 6.9) of the part Company contained herein or of Parent or Merger Sub the Sellers contained in this the Stockholder Agreement such that any condition set forth in subsection (aincluding Section 8 thereof) which would materially adversely affect (or (bmaterially delay) the consummation of Section 7.3 would not be satisfied andthe Offer or the Merger or the transactions contemplated by the Stockholder Agreement, in either such case, such breach is not curable or which shall not have been cured prior to the earlier of (A) ten (10) Business Days 10 business days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time two business days prior to the date and time that the Offer expires, provided, however, the Company Requisite Vote is obtained and will have no right to cure a copy ------- -------- breach of the written consent is delivered to Parent.Section 6.9; or
Appears in 3 contracts
Sources: Merger Agreement (Reltec Corp), Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby and the other Transactions may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether (except as expressly set forth below) before or after the StockholdersCompany Stockholder Approval or the Parent Stockholder Approval has been obtained:
(a) by mutual written consent of Parent the Company and the CompanyParent;
(b) by Parent or either the Company or Parent:
(i) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company any Party shall have issued a final any order, decree decree, ruling or ruling injunction or taken any other final action permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such order, decree, ruling or injunction or other action is or shall have become final and nonappealable, or if there shall be adopted any Law that permanently makes consummation of the Merger illegal or otherwise permanently prohibited; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b8.1(b)(i) shall not be available to any Party whose failure to fulfill any material covenant or agreement under this Agreement has been the party seeking to terminate if such party primary cause of or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with resulted in the action or event described in this Section 6.88.1(b)(i) occurring;
(cii) by Parent if the Merger shall not have been consummated on or before September 155:00 p.m. Denver, 2008 Colorado time, on (A) April 8, 2021 if no Company Chapter 11 Cases have been filed by that date or (B) thirty (30) days following the date by which the Confirmation Order must be entered under Section 6.24(a) if the Company Chapter 11 Cases have been filed (each such date being the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(ii) shall not be available to the party seeking any Party whose failure to terminate if fulfill any action of such party material covenant or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations agreement under this Agreement required to be performed at or prior to the Effective Time has been the cause of, of or resulted in, in the failure of the Effective Time Merger to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(diii) in the event of a breach by the Company if there shall have been a breach other Party of any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement such that any which would give rise to the failure of a condition set forth in subsection (aSection 7.2(a) or 7.2(b) or Section 7.3(a) or 7.3(b), as applicable (b) of Section 7.3 would not be satisfied and, in either such case, and such breach is not curable prior to the Outside Date, or shall if curable prior to the Outside Date, has not have been cured prior to by the earlier of (Ai) ten thirty (1030) days after the giving of written notice to the breaching Party of such breach and (ii) two (2) Business Days following written notice of such breach prior to Parent and the Outside Date) (B) the Company Termination Datea “Terminable Breach”); provided provided, however, that the Company shall terminating Party is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach Terminable Breach of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection Agreement;
(aiv) or if (bA)(1) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or the Company Stockholder Approval shall not have been cured obtained upon a vote held at a duly held Company Stockholders Meeting, or at any adjournment or postponement thereof or the Minimum Participation Condition is not satisfied, and (2) the Confirmation Order which would otherwise enable the Transactions to occur without the Company Stockholder Approval or satisfaction of the Minimum Participation Condition has not been entered on or prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and Outside Date, or (B) the Parent Termination Date; provided that Parent Stockholder Approval shall not have been obtained upon a vote at a duly held Parent Stockholders Meeting, or at any adjournment or postponement thereof;
(c) by Parent, prior to, but not after, the right time the Company Stockholder Approval is obtained, if the Company Board or a committee thereof shall have effected a Company Change of Recommendation (whether or not such Company Change of Recommendation is permitted by this Agreement);
(d) by the Company, prior to, but not after, the time the Parent Stockholder Approval is obtained, if the Parent Board or a committee thereof shall have effected a Parent Change of Recommendation (whether or not such Parent Change of Recommendation is permitted by this Agreement);
(e) by the Company, in order to terminate enter into a definitive agreement with respect to a Company Superior Proposal; provided, however, that (i) the Company shall not have Willfully and Materially Breached any of its obligations under Section 6.3, (ii) such definitive agreement with respect to such Company Superior Proposal shall be entered into substantially concurrently with the termination of this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; orand (iii) the Company shall pay the Company Termination Fee concurrently with such termination;
(f) by Parent, in order to enter into a definitive agreement with respect to a Parent Superior Proposal; provided, however, that (i) Parent shall not have Willfully and Materially Breached any of its obligations under Section 6.4, (ii) such definitive agreement with respect to such Parent Superior Proposal shall be entered into substantially concurrently with the termination of this Agreement pursuant to this Section 8.1(f) and (iii) Parent shall pay the Parent Termination Fee concurrently with such termination;
(g) by the Company or Parent if (i)(A) the Minimum Participation Condition is not satisfied or (B) the Company Stockholder Approval is not obtained, and (ii) the Requisite Conditions to the Prepackaged Plan are not satisfied prior to April 8, 2021; or
(h) by the Company (other than with respect to clauses (iii) or (iv)) or Parent if (i) the Transaction Support Agreement is terminated at any time prior to the date Effective Time, and time that the Transactions are otherwise unable (or become unable) to be consummated pursuant to the terms of this Agreement (provided, that, the Company Requisite Vote is obtained and a copy or Parent, as applicable, shall be deemed, for purposes of Section 8.3, to have terminated pursuant to this Section 8.1(h)(i) if, following the termination of the Transaction Support Agreement, the Company or Parent terminates this Agreement pursuant to another provision set forth in this Section 8.1, so long as (w) the Company is not then entitled to terminate this Agreement pursuant to Section 8.1(b)(iii), (x) the Company is not, at the time of the termination of the Transaction Support Agreement, then entitled to terminate this Agreement pursuant to Section 8.1(b)(iv)(B), (y) Parent has not, at any time prior to the termination of the Transaction Support Agreement, effected a Parent Change of Recommendation, and (z) Parent does not terminate this Agreement under Section 8.1(f)), (ii) the Confirmation Order is not entered within the time permitted by Section 6.24(a), (iii) the Prepackaged Plan is amended, modified or added to in violation of Section 6.24(b), (iv) the Prepackaged Plan is withdrawn without the prior written consent is delivered of Parent, (v) the Bankruptcy Court enters an order denying confirmation of the Prepackaged Plan, (vi) the Bankruptcy Court enters an order terminating the Company’s exclusive right to Parentfile and/or solicit acceptances of a plan of reorganization; or (vii) the Bankruptcy Court enters an order (A) converting the Company Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, or (B) appointing an examiner with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code or a trustee in the Company Chapter 11 Cases.
Appears in 3 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (HighPoint Resources Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding any requisite approval and adoption thereof by the Stockholdersof this Agreement, as follows:
(a) by mutual written consent of Parent and the Company;
(b) by Parent or Parent, if the Company if any court Voting Agreement is not executed within one business day following the execution of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8Agreement;
(c) by either Parent or the Company, if the Merger shall not have been consummated occurred on or before September 15October 31, 2008 2001 (the “Parent "Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”"); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(c) shall not be available to the any party seeking to terminate if any action whose willful and material breach of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time Merger to occur on or before the Parent Termination Date or the Company Termination Date, as applicableprior to such date;
(d) by Parent, if there is a breach by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any if not cured, would cause a condition set forth in subsection (aSection 8.2(a) or (b) of Section 7.3 would not to be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that such breach is (i) incapable of being cured as of the Termination Date or (ii) capable of being cured (so as to satisfy the conditions set forth in Section 8.2(a) and (b)) as of the Termination Date, but the Company shall not have cured such breach within twenty (20) business days after written notice thereof shall have been received by the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this AgreementCompany;
(e) by Parent the Company, if there shall have been is a breach by Parent of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any if not cured, would cause a condition set forth in subsection (aSection 8.3(a) or (b) of Section 7.2 would not to be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that such breach is (i) incapable of being cured as of the Termination Date or (ii) capable of being cured (so as to satisfy the conditions set forth in Section 8.3(a) and (b)) as of the Termination Date, but Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(ecured such breach within twenty (20) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; orbusiness days after written notice thereof shall have been received by Parent;
(f) by either Parent at or the Company, if any time prior Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, and such order, decree, ruling or other action shall have become final and nonappealable;
(g) by Parent, if (i) the Board of Directors of the Company shall have failed to recommend or shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of this Agreement or the transactions contemplated hereby, whether or not permitted by the terms hereof, or shall have failed to call the Stockholders' Meeting in accordance with Section 7.3; (ii) the Board of Directors of the Company or the Special Committee shall have recommended to the date stockholders of the Company a Superior Proposal; (iii) an Acquisition Proposal other than the Merger shall have been announced or otherwise become publicly known and time the Board of Directors of the Company shall have failed to recommend against acceptance of such Acquisition Proposal by the Company's stockholders within ten (10) business days of its receipt; (iv) the Board of Directors of the Company shall have resolved to do any of the foregoing; (v) the Voting Agreement shall have been terminated pursuant to Section 6(ii) thereof or (vi) the Company shall have entered into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal;
(h) by the Company, if (i) the Board of Directors of the Company authorizes the Company, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and the Company notifies Parent in writing that it intends to enter into such an agreement, attaching the most current version of such agreement (or a description of all material terms and conditions thereof) to such notice and (ii) Parent does not make, within five (5) business days of receipt of the Company's written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer that the Board of Directors of the Company determines, in good faith after consultation with its financial advisors, is at least as favorable to the shareholders of the Company as the Superior Proposal, it being understood that the Company Requisite Vote is obtained and a copy shall not enter into any such binding agreement during such five business day period; or
(i) by either Parent or the Company, if the approval of the written consent is delivered transactions contemplated hereby by the stockholders of the Company required for the consummation of the Merger as set forth in Section 8.1(a) shall not have been obtained by reason of the failure to Parentobtain such required vote at a duly held Stockholders' Meeting or at any adjournment or postponement thereof.
Appears in 3 contracts
Sources: Merger Agreement (Richton International Corp), Merger Agreement (Deere & Co), Merger Agreement (FRS Capital Co LLC)
Termination. This Agreement may be terminated (and such termination shall have the Merger contemplated hereby may be abandoned effects set forth in Section 11.2 hereof) at any time prior to the Effective Time, notwithstanding adoption thereof Closing by written notice by the Stockholders:terminating party to the other party (except in the case of termination pursuant to Section 11.1(a) hereof, which requires mutual agreement of all parties or pursuant to Section 11.1(i) hereof, which termination shall be automatic):
(a) by mutual written consent of Parent Buyer and Sellers whether or not the CompanyAgreement has been approved by the respective directors and stockholders of such parties;
(b) by Parent either Buyer or Sellers, if the Company if any court of competent jurisdiction transactions contemplated hereby shall not have been consummated on or other Governmental Entity having jurisdiction over prior to the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableOutside Date; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b11.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the party seeking primary cause of or resulted in the failure of the Closing to terminate if such party occur on or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8before the Outside Date;
(c) by Parent either Buyer or Sellers, if any Restraint prohibiting or otherwise preventing the Merger purchase of the ACE Lo Equity Interests, the Boardwalk Equity Interests, the Casino Property or the Traymore Site shall not be in effect and shall have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)become final and nonappealable; provided, howeverthat, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c11.1(c) shall have used its commercially reasonable efforts to prevent the entry of and to remove such Restraint and that the right to terminate this Agreement under this Section 11.1(c) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, or resulted inmaterially contributed to, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableaction resulting in such Restraint;
(d) by the Company Buyer, if there shall have been a breach of any Selling Party has breached any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained such Selling Party set forth in this Agreement such that any which (i) would result in a failure of a condition set forth in subsection (aSection 10.2(a) or (b) of Section 7.3 would hereof and (ii) is not be satisfied andcured in all material respects within sixty (60) calendar days after written notice thereof; provided, in either such casehowever, that if such breach is cannot curable or shall not have been reasonably be cured within such sixty (60) day period but can be reasonably cured prior to the earlier of (AOutside Date, and such Selling Party is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 11.1(d); provided, further, that Buyer’s right to terminate this Agreement under this Section 11.1(d) ten (10) Business Days following written notice shall not be available if, at the time of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not intended termination, Sellers have the right to terminate this Agreement pursuant to this under Section 8.1(d11.1(e) if the Company is then in material breach of any of its covenants or agreements contained in this Agreementhereof;
(e) by Parent Sellers, if there shall have been a breach of Buyer has breached any representation, warranty, covenant or agreement on the part of the Company contained Buyer set forth in this Agreement such that any which (i) would result in a failure of a condition set forth in subsection (aSection 10.3(a) or (b) of Section 7.2 would hereof and (ii) is not be satisfied andcured in all material respects within sixty (60) calendar days after written notice thereof; provided, in either such casehowever, that if such breach is cannot curable or shall not have been reasonably be cured within such sixty (60) day period but can be reasonably cured prior to the earlier of (AOutside Date, and Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 11.1(e); provided, further, that Sellers’ right to terminate this Agreement under this Section 11.1(e) ten (10) Business Days following written notice shall not be available if, at the time of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have intended termination, Buyer has the right to terminate this Agreement pursuant to this under Section 8.1(e11.1(d), Section 11.1(f) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; orSection 11.1(h) hereof;
(f) by Parent at any time prior Buyer, in the event that AREP Sands does not execute and adopt the Stockholder Consent within one (1) business day following the execution of this Agreement;
(g) by ACE Hi with respect to the date ACE Lo Purchase only, in accordance with Section 9.4(b); provided that, in order for the termination of this Agreement pursuant to this Section 11.1(g) to be deemed effective, ACE Hi shall have complied with Section 9.4 and time that with applicable requirements, including the Company Requisite Vote is obtained and a copy payment of the Termination Fee, of Section 9.11;
(h) by Buyer, in the event of a material breach of Section 9.4; or
(i) automatically, if Buyer does not deliver a written consent is delivered notice to Parentelect to effect a Revival pursuant to Section 9.4(e)(iii) hereof within the time period specified therein.
Appears in 3 contracts
Sources: Acquisition Agreement (Pinnacle Entertainment Inc), Acquisition Agreement (American Real Estate Partners L P), Acquisition Agreement (Atlantic Coast Entertainment Holdings Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at At any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of the matters presented in connection with the Merger by the Stockholdersstockholders of the Company, this Agreement may be terminated and the Merger abandoned:
(a) by mutual written consent of the Boards of Directors of Parent and the Company;
(b) by either Parent or the Company Company, by written notice to the other party, if the Closing shall not have occurred on or before September 14, 2002 or such later date as may be agreed upon in writing by the parties hereto (the "Final Date");
(c) by Parent, by written notice to the Company, if (i) any court of competent jurisdiction the Company's representations and warranties in the Agreement would be inaccurate if made as of the time of such notice, or other Governmental Entity having jurisdiction over the Company shall have issued breached any of its covenants, agreements or obligations in this Agreement, and (ii) the condition set forth in Section 7.3(a) would not be satisfied if such inaccuracy or breach were to remain uncured, and (iii) such inaccuracy or breach, if curable, shall not have been cured within thirty (30) business days after receipt by the Company of written notice of such inaccuracy or breach;
(d) by the Company, by written notice to Parent, if (i) any of Parent's representations and warranties in this Agreement would be inaccurate if made as of the time of such notice, or Parent shall have breached any of its covenants, agreements or obligations in this Agreement, and (ii) the condition set forth in Section 7.2(a) would not be satisfied if such inaccuracy or breach were to remain uncured, and (iii) such inaccuracy or breach shall not have been cured within thirty (30) business days after receipt by Parent of written notice of such inaccuracy or breach;
(e) by Parent, by written notice to the Company, if: (i) a final orderTrigger Event shall have occurred or a Takeover Proposal shall have been made and, decree in either case, shall not have been absolutely and unconditionally abandoned or ruling withdrawn, and the Board of Directors of the Company, if so requested by Parent, does not within ten (10) business days of such request, (A) reconfirm its unanimous recommendation of this Agreement and the transactions contemplated hereby, and (B) (in the case of a Takeover Proposal or taken any other final action restraining, enjoining Trigger Event involving a tender or otherwise prohibiting exchange offer) reject such Takeover Proposal or Trigger Event; (ii) the Board of Directors of the Company shall have failed to unanimously recommend that the Company's stockholders vote to approve the Merger and adopt this Agreement (a "Recommendation"), or shall have withdrawn (including by failing to include such orderRecommendation in the Proxy Statement) or modified its Recommendation in a manner adverse to Parent, decreeor shall have resolved to do any of the foregoing; (iii) the Board of Directors of the Company shall have recommended, ruling endorsed, accepted, approved, or otherwise agreed to a Takeover Proposal or shall have resolved to do any of the foregoing; or (iv) the Company or any Company Representative shall have failed to comply with Section 5.2.
(f) by either Parent or the Company, by written notice to the other party, if: (i) any permanent injunction or other action is order of a court or other competent authority preventing the consummation of the Merger shall have become final and nonappealable; provided, however, provided such party used commercially reasonable efforts to have such injunction or other order lifted or (ii) any required vote of the stockholders of the Company shall not have been obtained at a duly held meeting of stockholders or at any adjournment thereof (provided that the right to terminate this Agreement pursuant to under this Section 8.1(bclause (ii) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or where the failure of to obtain such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there stockholder approval shall have been caused by the action or failure to act of the Company and such action or failure constitutes a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement); or
(fg) by the Company, by written notice to Parent and compliance with the provisions of this Section 8.1(g), if (i) the Company has received a Takeover Proposal constituting a Superior Proposal, the Board of Directors of the Company in accordance with Section 5.2 has determined that it desires to approve entering into a written agreement providing for such Superior Proposal and has notified Parent in writing of such desire; and (ii) five (5) business days have elapsed after Parent's receipt of such written notification (which notification shall include a copy of such Superior Proposal and a description of any additional material non-written modifications thereof), and during such five (5) business day period the Company has reasonably cooperated with Parent with the intent of enabling Parent to make an offer that is at least as favorable to the stockholders of the Company as such Superior Proposal; and (iii) prior to 6:00 p.m. California time on the fifth business day of such five (5) business day period Parent has not made an offer that is at least as favorable to the Company's stockholders as such Superior Proposal; and (iv) at the end of such five (5) business day period the Board of Directors of the Company reasonably believes that such Takeover Proposal continues to be a Superior Proposal; and (v) the Company prior to such termination pays to Parent in immediately available funds all amounts required to be paid pursuant to Section 8.3(b). The Company agrees to notify Parent promptly if its desire to enter into a written agreement with respect to the Superior Proposal referred to in its notification shall change at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentafter giving such notification.
Appears in 3 contracts
Sources: Merger Agreement (Mentor Graphics Corp), Merger Agreement (Mentor Graphics Corp), Merger Agreement (Ikos Systems Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to before the Effective Time, notwithstanding adoption thereof whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by the Stockholdersapplicable law) only:
(a) by mutual written consent of Parent and the Companyparties;
(b) by either Parent or the Company Company:
(i) if the purchase of the Shares pursuant to the Offer shall not have occurred on or prior to the close of business on April 30, 2005 (the “Outside Date“); provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(i) shall not be available to any party whose failure to perform any of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such date;
(ii) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Authority shall have issued a final an order, decree or ruling or taken any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the Merger transactions contemplated by this Agreement and such order, decree, decree or ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(bparagraph (b)(ii) shall not be available to the any party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required whose failure to comply with Section 6.86.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification (except for the representations and warranties contained in Section 4.6(i), for which such qualifiers shall not be disregarded), shall not be true and correct, with only such exceptions as, individually or in the aggregate, have not had a Material Adverse Effect; provided, however, if such failure to be true and correct is curable on or before the Outside Date, then only upon the failure of the other party to cure such breach within 20 calendar days after receipt of written notice thereof or if such failure could not reasonably be expected to be cured within such 20 calendar days and the other party promptly commences an action to cure after receipt of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Date;
(iv) if the other party shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement; provided, however, if a breach or failure is curable on or before the Outside Date, then only upon the failure of the other party to cure such breach within 20 calendar days after receipt of written notice thereof or if such breach or failure could not reasonably be expected to be cured within such 20 calendar days and the other party promptly commences an action to cure after receipt of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Date.
(c) by Parent if before the purchase of the Shares pursuant to the Offer, (i) the board of trustees of the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger shall not have been consummated on or before September 15the other transactions contemplated by this Agreement, 2008 (the “Parent Termination Date”), y) approved or by the Company if recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger shall not have been consummated on or before September 30, 2008 (and the “Company Termination Date”); provided, however, that the right to terminate other transactions contemplated by this Agreement pursuant to this Section 8.1(c) shall not be available to within five business days after the party seeking to terminate if any action public announcement of such party or any a Takeover Proposal (including the filing of its Subsidiaries or a Schedule 13D with the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (aSEC) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (Bii) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach board of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part trustees of the Company contained in this Agreement such that or any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or committee thereof shall not have been cured prior resolved to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of take any of its covenants or agreements contained in this Agreementthe foregoing actions; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Istar Financial Inc), Merger Agreement (Istar Financial Inc), Merger Agreement (Istar Financial Inc)
Termination. This Notwithstanding anything herein to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by Time whether before or after the StockholdersEnergy Unitholder Approval or Abraxas Stockholder Approval:
(a) by By the mutual written consent of Parent Abraxas and the CompanyEnergy in a written instrument;
(b) by Parent By either Energy or Abraxas upon written notice to the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderother, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting if:
(i) the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall has not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15October 28, 2008 2009 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c9.1(b)(i) shall not be available to the a party seeking whose failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time other breach of this Agreement has been the a cause of, or resulted in, the failure of the Effective Time Merger to occur have been consummated on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(dii) any Governmental Authority has issued a statute, rule, order, decree or regulation or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger or making the Merger illegal and such statute, rule, order, decree, regulation or other action shall have become final and nonappealable (provided that the terminating party has complied with its obligations hereunder);
(iii) Energy fails to obtain the Energy Unitholder Approval at the Energy Meeting;
(iv) there has been a material breach of or any inaccuracy in any of the representations or warranties set forth in this Agreement on the part of the other party for the purposes of this Section 9.1, which breach is not cured within 30 days following receipt by the Company if there shall have been a breaching party of written notice of such breach from the terminating party, or which breach, by its nature, cannot be cured prior to the Termination Date (provided in any such case that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement such herein); provided, however, that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or no party shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(b)(iv) if unless (x) the Company breach of representation or warranty, together with all other such breaches, would entitle the party receiving such representation not to consummate the transactions contemplated by this Agreement under Section 8.6 (in the case of a breach of representation or warranty by Abraxas) or Section 8.7 (in the case of a breach of representation or warranty by Energy), and (y) such terminating party is then not in material breach of this Agreement;
(v) f there has been a material breach of any of its the covenants or agreements contained set forth in this Agreement;
Agreement on the part of the other party, which breach has not been cured within 30 days following receipt by the breaching party of written notice of such breach from the terminating party, or which breach, by its nature, cannot be cured prior to the Termination Date (e) by Parent if there shall have been a provided in any such case that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such herein); provided, however, that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or no party shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(b)(v) if Parent unless (x) the breach of covenants or Merger Sub agreements, together with all other such breaches, would entitle the party receiving the benefit of such covenants or agreements not to consummate the transactions contemplated by this Agreement under Section 8.6 (in the case of a breach of covenants or agreements by Abraxas) or Section 8.7 (in the case of a breach of covenants or agreements by Energy), and (y) such terminating party is then not in material breach of any of its covenants or agreements contained in this Agreement; or
(fvi) by Parent Abraxas fails to obtain Abraxas Stockholder Approval at any time the Abraxas Meeting.
(c) By Energy (with the prior approval of the Energy Committee), upon written notice to Abraxas, in the event that an Abraxas Change in Recommendation has occurred;
(d) By Abraxas (with the prior approval of the Abraxas Special Committee), upon written notice to Energy, in the event that an Energy Change in Recommendation has occurred; or
(e) Notwithstanding anything in this Agreement to the contrary, this Agreement will automatically terminate on the date and time (the “Outside Determination Date”) that is 120 days after the Company Requisite Vote is obtained and a copy date of this Agreement if the written consent is delivered to ParentMerger has not been completed by the Outside Determination Date.
Appears in 3 contracts
Sources: Merger Agreement (Abraxas Petroleum Corp), Merger Agreement (Abraxas Petroleum Corp), Merger Agreement (Abraxas Petroleum Corp)
Termination. This Agreement may be terminated and the Offer, the Merger and the transactions contemplated hereby may be abandoned at any time prior to the Effective TimeTime by action taken or authorized by the Board of Directors of the terminating party or parties, notwithstanding adoption thereof any requisite approval of this Agreement by the Stockholders:shareholders of the Company, and whether before or after the shareholders of the Company have approved this Agreement at the Company Shareholder Meeting, as follows (the date of any such termination, the “Termination Date”):
(a) by mutual written consent of Parent and the CompanyCompany in a written instrument, if the Board of Directors of each so determines;
(b) by either Parent or the Company if any court Governmental Entity of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree nonappealable order which has the effect of making consummation of the Offer or ruling or taken any other final action restraining, enjoining the Merger illegal or otherwise preventing or prohibiting consummation of the Merger and such orderOffer or the Merger;
(c) by either Parent or the Company if the Offer has not been consummated on or before December 31, decree, ruling or other action is or shall have become final and nonappealable2006; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b10.1(c) shall not be available to a party whose failure to fulfill any obligation under this Agreement materially contributed to the party seeking failure of the Offer to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been be consummated on or before September 15, 2008 such date;
(the “d) by either Parent Termination Date”), or by the Company if the Offer terminates or expires in accordance with its terms, after giving effect to the rights and obligations of the parties set forth in Section 1.1(d) and Section 1.1(e), without Merger shall not have been consummated on or before September 30Sub having accepted for payment any Shares pursuant to the Offer due to its failure to achieve the Revised Minimum Condition, 2008 (the “Company Termination Date”); provided, however, except that the right to terminate this Agreement pursuant to under this Section 8.1(c10.1(d) shall will not be available to the any party seeking to terminate if any action of such party or any of its Subsidiaries or the whose failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the proximate cause of, or resulted in, such failure to achieve the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableRevised Minimum Condition;
(de) by Parent if it is not in material breach of this Agreement and if (i) there has been a breach on the part of the Company of any of its covenants or agreements herein such that the condition set forth in paragraph (b) of Annex I exists or (ii) any of the representations and warranties of the Company herein are or become untrue or incorrect such that the condition set forth in paragraph (c) of Annex I exists (in each case, after giving effect to the cure periods specified therein);
(f) by the Company if it is not in material breach of this Agreement, and if (i) the representations and warranties of Parent and Merger Sub in Section 6.6 are or become untrue or inaccurate or (ii) any of the representations and warranties of Parent and Merger Sub herein, other than those set forth in Section 6.6, are or become untrue or inaccurate, or (iii) there shall have has been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained of any of their respective covenants or agreements herein, and, in this Agreement the case of clause (ii) and (iii) only, (A) such that breach has not been, or cannot be, cured in all material respects within thirty (30) Business Days after written notice to Parent and Merger Sub, or (B) without regard to any condition qualification or reference to materiality or Parent Material Adverse Effect set forth in subsection such representations and warranties, such inaccuracy or breach would, individually or in the aggregate, have a Parent Material Adverse Effect;
(ag) by Parent (i) if the Company breaches in any material respect any of its obligations under Section 8.8, (ii) if the Company Board shall have effected a Company Recommendation Change, or (biii) of Section 7.3 would not be satisfied andthe Company shall have failed to include in the Proxy Statement distributed to the Company’s shareholders, in either such caseif any, such breach is not curable or its recommendation that shareholders approve this Agreement and the Merger;
(h) by the Company (i) if the Company Board shall not have been cured effected a Company Recommendation Change prior to the earlier consummation of (A) ten (10) Business Days following written notice of such breach to Parent the Offer and (B) the Company Termination Dateis not concurrently in material breach of its obligations under this Agreement and has materially complied with its obligations under Section 8.8, or (ii) if Parent or Merger Sub shall have failed to commence the Offer in accordance with Section 1.1(a); provided that provided, however, the Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(d10.1(h)(ii) if such failure to have commenced the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there Offer shall have been a breach of any representation, warranty, covenant or agreement on caused by the part of the Company contained Company’s failure to perform in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in all material breach of any of respects its covenants or agreements contained in obligations under this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Laserscope), Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
Termination. This Agreement may be terminated and the Offer, the Merger and the other transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof time of the first acceptance of Shares for payment pursuant to the Offer ("FIRST ACCEPTANCE TIME") by action taken or authorized by the Stockholders:Board of Directors, or other governing body or entity, of the terminating party or parties, as follows (the date of any such termination, the "TERMINATION Date"):
(a) by mutual written consent of Parent Purchaser and the Company;
(b) by Parent either Purchaser or the Company Company, if any court of competent jurisdiction the First Acceptance Time shall not have occurred on or other Governmental Entity having jurisdiction over the Company shall have issued a final orderbefore May 15, decree or ruling or taken any other final action restraining2007; PROVIDED, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, howeverHOWEVER, that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(b) shall not be available to the any party seeking whose failure to terminate if such party or fulfill any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective First Acceptance Time to occur on or before the Parent Termination Date such date;
(c) by either Purchaser or the Company Termination DateCompany, as applicableif any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any legally binding injunction, order, decree or ruling (whether temporary, preliminary or permanent) or taken any other action (including the failure to have taken an action) which has become final and non-appealable and has the effect of making consummation of the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger;
(d) by the Company Purchaser, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or neither Purchaser nor Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties or covenants under this Agreement, and if (i) any of the representations or warranties of the Company herein become untrue or inaccurate such that the condition set forth in paragraph (f) of Annex A would not be satisfied, (ii) there has been a breach on the part of the Company of any of its covenants or agreements contained herein such that the condition set forth in this Agreementparagraph (g) of Annex A would not be satisfied, and such breach (if curable) has not been cured within twenty (20) days after written notice to the Company or (iii) the Company has breached in any material respect any of the provisions of Section 4.8(b), (c), (d) or (e);
(e) by Parent the Company, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties or covenants or agreements contained in under this Agreement; or, and if (i) any of the representations or warranties of Purchaser or Merger Sub herein become untrue or inaccurate, except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth therein) would not be reasonably expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect on the date of this Agreement and as of the expiration of the Offer, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), or (ii) either Purchaser or Merger Sub shall have failed to perform in any material respect its obligations or to comply in any material respect with its agreements or covenants to be performed or complied with by it under this Agreement, and such breach (if curable) has not been cured within twenty (20) days after written notice to Purchaser;
(f) by Parent at Purchaser, if the Board shall have (i) withdrawn or modified, in a manner adverse to Purchaser, Merger Sub or any time prior of their respective affiliates, its approval or recommendation of the Offer, this Agreement or the Merger or (ii) recommended or approved, or proposed publicly to recommend or approve, any Company Takeover Proposal or any Company Acquisition Agreement relating to any Company Takeover Proposal or (iii) resolved to do any of the date foregoing; or
(g) by the Company, if the Board shall have withdrawn or modified in a manner adverse to Purchaser, Merger Sub or any of their respective affiliates its approval or recommendation of the Offer, this Agreement or the Merger in compliance with Section 4.8(e) of this Agreement; PROVIDED, however, that any such purported termination pursuant to this Section 7.1(g) shall be void and time that of no force or effect unless the Company Requisite Vote is obtained concurrently with such termination pays to Purchaser the Company Termination Fee and a copy of the written consent is delivered to ParentTermination Expenses in accordance with Section 7.3.
Appears in 3 contracts
Sources: Merger Agreement (WHX Corp), Merger Agreement (Steel Partners Ii Lp), Merger Agreement (Steel Partners Ii Lp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of this Agreement and the Merger by the Stockholdersstockholders of the Company:
(a) by the mutual written consent of Parent and the Companyparties to this Agreement;
(b) by Parent or either the Company or UBID, by written notice to the other if, for any reason, the Closing has not occurred prior to the close of business on or before October 31, 2018; provided, however, that (i) the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to the Company or UBID, as applicable, if the party seeking to terminate the Agreement is responsible for the delay;
(c) by either the Company or UBID, by written notice to the other, if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final an order, judgment or decree or ruling or taken any (other final action than a temporary restraining order) restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling judgment or other action is or decree shall have become final and nonappealable;
(d) at the election of the Company, if (i) UBID has materially breached any representation, warranty, covenant or agreement contained in this Agreement, which breach has not been cured on or before thirty (30) Business Days following delivery of written notice of such breach by the Company to UBID; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b7.1(d) (A) shall not be available to the party seeking to terminate Company if the Company at such party time, is in material breach of any representation, warranty, covenant or agreement set forth in this Agreement, or (B) if the Company or its counsel is not satisfied with the financial, business or legal due diligence investigation of UBID or any item or issue that is discovered in the course of such investigation as determined by the Company or its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;counsel in its sole and absolute discretion; and
(ce) by Parent at the election of UBID, if the Merger shall Company has materially breached any representation, warranty, covenant or agreement contained in this Agreement, which breach has not have been consummated cured on or before September 15, 2008 thirty (the “Parent Termination Date”), or by 30) Business Days following delivery of written notice to the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)of such breach by UBID; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c7.1(e) shall not be available to the party seeking to terminate UBID if any action of UBID, at such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause oftime, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a is in material breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (RDE, Inc.), Merger Agreement (RDE, Inc.), Merger Agreement (Incumaker, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersFirst Closing:
(a) by mutual written consent of Parent the Investors and the Company;
(b) by Parent the Company, upon written notice to the Investors, in the event that the conditions of the First Closing set forth in Section 1.2(c)(2) are not satisfied on or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderbefore October 31, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable2010; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b5.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the party seeking cause of, or shall have resulted in, the failure of the Closing to terminate if occur on or prior to such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8date;
(c) by Parent if the Merger shall Investors, upon written notice to the Company, in the event that the conditions of the First Closing set forth in Section 1.2(c)(1) are not have been consummated satisfied on or before September 15October 31, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)2010; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c5.1(c) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has shall have been the cause of, or shall have resulted in, the failure of the Effective Time Closing to occur on or before the Parent Termination Date or the Company Termination Date, as applicableprior to such date;
(d) by the Company if there or the Investors, upon written notice to the other, in the event that any Governmental Entity shall have been a breach of issued any representationorder, warrantydecree or injunction or taken any other action restraining, covenant enjoining or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of prohibiting any of its covenants or agreements contained in the transactions contemplated by this Agreement, and such order, decree, injunction or other action shall have become final and nonappealable;
(e) by Parent the Investors, if there the Investors or any of their Affiliates receives written notice from or is otherwise advised by a Governmental Entity that it will not grant (or intends to rescind or revoke if previously approved) any regulatory approval required to consummate the transactions contemplated hereby or receives written notice from such Governmental Entity that it will not grant such approval on the terms contemplated by this Agreement without imposing any Burdensome Condition, provided that, prior to terminating this Agreement, the Investors shall have been a breach of any representation, warranty, covenant or agreement on used reasonable efforts to obtain such approval without the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice imposition of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; orBurdensome Condition;
(f) by Parent at the Investors, if a “change in control” within the meaning of any time Benefit Plan occurs on or after the date hereof but prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentFirst Closing Date.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Brown Bernard A), Securities Purchase Agreement (Sun Bancorp Inc /Nj/), Securities Purchase Agreement (Sun Bancorp Inc /Nj/)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing solely:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Closing shall not have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting occurred by the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableTermination Date; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b) shall not be available to the party seeking to terminate if such party any Party whose failure (or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(cParent, Merger Sub’s failure) by Parent if the Merger shall not have been consummated on to fulfill any representation, warranty, covenant or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time other action has been the cause of, or resulted in, the failure of the Effective Time Closing to occur on or before the Termination Date;
(c) by either Parent Termination Date or the Company Termination DateCompany, as applicableif any Governmental Authority having competent jurisdiction shall have issued a final, non-appealable order, decree or ruling, or there shall exist any Law, in each case that permanently prohibits, makes illegal, enjoins or prevents the consummation of the Transactions; provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any Party whose failure (or with respect to Parent, Merger Sub’s failure) to fulfill any representation, warranty, covenant or obligation under this Agreement or other action has been the cause of, or resulted in, such order, decree, ruling or Law;
(d) by either Parent or the Company Company, if the Parent Equity Holder Meeting has been held (including any adjournment or postponement thereof permitted by Section 5.10(f)), has concluded, Parent’s Equity Holders have duly voted, and the Parent Equity Holders’ Approval has not been obtained;
(e) by Parent (if neither it nor Merger Sub is in material breach of their respective representations, warranties, covenants and obligations under this Agreement) if there shall have has been a breach of of, or inaccuracy in, any representation, warranty, covenant or agreement on of the part of Parent or Merger Sub contained Company set forth in this Agreement such that Agreement, which breach or inaccuracy would cause any condition set forth in subsection (aSection 7.2(a) or (b7.2(b) of Section 7.3 would not to be satisfied and, in either such case, if it remained uncured as of the Termination Date (and such breach is or inaccuracy has not curable or shall not have been cured prior to the earlier of or such condition has not been satisfied within thirty (A) ten (1030) Business Days following after the receipt by the Company of written notice of such breach to Parent and thereof from Parent);
(Bf) by the Company Termination Date; provided that the Company shall (if it is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in and obligations under this Agreement;
(e) by Parent if there shall have has been a breach of of, or inaccuracy in, any representation, warranty, covenant or agreement on the part of the Company contained Parent or Merger Sub set forth in this Agreement such that Agreement, which breach or inaccuracy would cause any condition set forth in subsection (aSection 7.3(a) or (b7.3(b) of Section 7.2 would not to be satisfied and, in either such case, if it remained uncured as of the Termination Date (and such breach is or inaccuracy has not curable or shall not have been cured prior to the earlier of or such condition has not been satisfied within thirty (A) ten (1030) Business Days following after the receipt by Parent of written notice of such breach to thereof from the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this AgreementCompany); or
(fg) by the Company if (i) all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived (other than conditions that by their terms or nature are to be satisfied at the Closing) on the date that the Closing should have been consummated in accordance with Section 1.2, (ii) the Company has irrevocably confirmed by written notice to Parent and Merger Sub that all of the conditions set forth in Section 7.3 have been satisfied (other than Sections 7.3(c) and (d) and conditions that by their terms or nature are to be satisfied at the Closing) or that it is willing to waive any time such unsatisfied conditions (other than Sections 7.3(c) and (d)) and that the Company is ready, willing and able to consummate the Closing and (iii) Parent and Merger Sub have failed to consummate the Transactions by the earlier of the day that is (x) thirty (30) Business Days after the day the Closing is required to occur pursuant to Section 1.2 or (y) five (5) Business Days prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentTermination Date.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Merger Agreement (Thunder Bridge Acquisition LTD)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:whether before or after Stockholder Approval,
(a) by mutual written consent of Parent Parent, Merger Sub and the Company (with respect to the Company, only with the approval of the Special Committee);
(b) by either Parent or the Company by action of its board of directors (with respect to the Company, only with the approval of the Special Committee): (i) if Parent has not accepted Public Shares for payment pursuant to the Offer on or before 5 p.m. New York City time on the Outside Date; (ii) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderOrder permanently enjoining, decree or ruling or taken any other final action restraining, enjoining restraining or otherwise prohibiting the Merger exists and such order, decree, ruling or other action is or Order shall have become final and nonappealablenonappealable or (iii) if the Offer shall have terminated or expired in accordance with its terms without Parent having purchased any Public Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to any party that has breached its obligations under this Agreement in any manner that shall have proximately contributed to the party seeking occurrence of the event which gave rise to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with the termination right under this Section 6.88.1(b);
(c) by Parent Parent, if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries Board or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableSpecial Committee shall have made a Change in Recommendation;
(d) by the Company Parent, if there shall have has been a breach of any representation, warranty, covenant or agreement on made by the part of Parent or Merger Sub contained Company in this Agreement Agreement, or any such representation or warranty shall have become untrue or incorrect on any date subsequent to the date of this Agreement, in each case in a manner that would:
(i) if such breach or failure to be true and correct occurs prior to the expiration of the Offer, cause any condition set forth in subsection (a) Exhibit 1 or (b) of Section 7.3 would Article VII hereto not to be satisfied and, in either such case, and such breach or failure to be true or correct is not curable or shall or, if curable, has not have been cured before 5:00 p.m. New York City time on the 30th day after written notice thereof has been given by Parent to the Company, or
(ii) if such breach occurs after the Acceptance Time but prior to the earlier expiration of (A) ten (10) Business Days following the Tail Period, cause any condition in Article VII hereto not to be satisfied and such breach or failure to be true or correct is not curable or, if curable, has not been cured before 5:00 p.m. New York City time on the 30th day after written notice of such breach thereof has been given by Parent to the Company; provided, however, that Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Parent is the primary cause of the breach by the Company is then in material breach of any of giving rise to Parent’s right to terminate this Agreement pursuant to Section 8.1(d) or its covenants or agreements contained in this Agreement;inability to cure such breach.
(e) by Parent the Company (only with the approval of the Special Committee), if there shall have has been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if made by Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; , or any such representation or warranty shall have become untrue or incorrect on any date subsequent to the date of this Agreement, in each case in a manner that
(i) if such breach occurs prior to the expiration of the Offer, would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer and such breach or failure to be true or correct is not curable or, if curable, has not been cured before 5:00 p.m. New York City time on the 30th day after written notice thereof has been given by the Company to Parent, or
(ii) if such breach or failure to be true occurs after the Acceptance Time but prior to the expiration of the Tail Period, would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent and Merger Sub to consummate the Merger and such breach or failure to be true or correct is not curable or, if curable, has not been cured before 5:00 p.m. New York City time on the 30th day after written notice thereof has been given by the Company to Parent.
(f) by Parent or the Company (with respect to the Company, only with the approval of the Special Committee), at any time prior after the expiration of the Tail Period, whether or not Parent has previously accepted Public Shares for payment pursuant to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentOffer.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Bank of Tokyo - Mitsubishi Ufj, LTD), Merger Agreement (Unionbancal Corp), Merger Agreement (Mitsubishi Ufj Financial Group Inc)
Termination. This (a) Either Party (the “Non-Breaching Party”) may terminate this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time upon prior written notice to the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by mutual written consent of Parent and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 Party (the “Parent Termination DateBreaching Party”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of Breaching Party has materially breached or materially failed (other than pursuant to Section 10.16) to perform any of its covenants or agreements contained in under this Agreement;, and such breach or failure shall have continued without cure for a period of at least forty-five (45) days after receipt by the Breaching Party of a written notice of such failure from the Non-Breaching Party seeking to terminate this Agreement. For the purposes of this Section 7.2(a), any breach of an LCA (material or otherwise) shall not constitute a breach of this Agreement.
(b) Either Party may terminate this Agreement at any time upon reasonable (and wherever possible at least ninety (90) days’) prior written notice to the other Party, if the other Party is the subject of an Insolvency Event.
(c) Provider may terminate all or any part of a Service at any time upon written notice to Recipient, to the extent that such Service is performed by a Subcontractor and Provider’s (or its Affiliate’s) contract with such Subcontractor is terminated. Prior to exercising any such right to terminate, Provider shall use reasonable endeavours to procure an alternative means of supply for such Service, subject to the provisions of Section 2.2(b). This termination right shall not apply where the contract with the Subcontractor is terminated:
(i) for Provider (or its Affiliate’s) breach not caused by Recipient (or its Affiliate); or
(ii) by Provider (or its Affiliate) for convenience without Recipient’s consent.
(d) Recipient may, with respect to any Service to the extent to be provided in connection with a Delayed Asset, upon written notice to Provider prior to the date of the applicable Delayed Transfer, terminate (in whole or in part), or reduce the Service Period of, any such Service, effective as of sixty (60) days following the provision of such notice (or such other shorter time period as the Parties may agree in writing), and, for the avoidance of doubt, any such termination or reduction shall apply solely to such Service to the extent provided in connection with such Delayed Asset. Recipient shall not be liable for any fees, costs, or expenses (including Service Fees, Set-Up Costs, Service Exit Costs and Service Costs) in connection with any such terminated Service or part thereof, or any such reduced portion of the Service Period for any such Service, in each case to the extent incurred following the effective date of such termination or reduction (i) if such termination or reduction as applicable, becomes effective prior to the date of the applicable Delayed Transfer; provided always that Recipient shall be liable for any fees, costs, or expenses, which the Provider (or its applicable Affiliate) has already incurred or is otherwise committed to (and cannot be avoided) in connection with the Delayed Transfer, or (ii) if Provider (or its applicable Affiliate) is reasonably capable of terminating or reducing, as applicable, such Service or part thereof following the provision of such notice and prior to such Delayed Transfer. All other such terminations and reductions for which sub Sections (i) or (ii) are not satisfied shall be considered to be terminations or reductions pursuant to Section 2.3(b) (and for which such Section shall apply), provided that the effective date of termination or reduction shall be determined pursuant to this Section 7.2.
(e) by Parent if there Notwithstanding anything to the contrary herein, but without limiting Section 2.10(d) and Section 2.11, Provider shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right entitled to terminate this Agreement pursuant to this Section 8.1(eor any Service as a result of (i) if Parent any non-compliance by the Business with the Provider Security Requirements, the Provider Policies, any other policies, procedures and practices of Provider or Merger Sub is then its Affiliates or applicable Laws, in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time each case that occurred prior to the date Effective Date, or (ii) any defects, imperfections, conditions, circumstances or characteristics that existed prior to the Effective Date with respect to the Business; provided that Recipient and time that its Affiliates shall use all reasonable endeavours to remediate such non-compliance with the Company Requisite Vote is obtained and a copy Provider Security Requirements, the Provider Policies or applicable Laws, as the case may be, or any such defects, imperfections, conditions, circumstances or characteristics, as promptly as reasonably practicable upon being notified or becoming aware of the written consent is delivered to Parentforegoing.
Appears in 3 contracts
Sources: Transition Services Agreement (Haleon PLC), Transition Services Agreement (Haleon PLC), Transition Service Agreement (Haleon PLC)
Termination. This Agreement may be terminated and the Merger and the other transactions contemplated hereby by this Agreement may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction the Effective Time shall not have occurred on or other Governmental Entity having jurisdiction over the Company shall have issued a final orderbefore October 15, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable2001; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.01(b) shall not be available to the any party seeking whose failure to terminate if such party fulfill any obligation or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations condition under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date;
(c) if there shall be any Governmental Order that is final and nonappealable having the Parent Termination Date effect of making the Merger illegal or otherwise prohibiting consummation of the Company Termination Date, as applicableMerger;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 8.02(a) or (band Section 8.02(b) of Section 7.2 would not be satisfied andsatisfied, in either such case, if such breach is not curable cured within 20 business days from the date of notice thereof;
(e) by the Company upon a breach of any representation, warranty, covenant or agreement on the part of Parent set forth in this Agreement, or if any representation or warranty of Parent shall have become untrue, in either case such that the conditions set forth in Section 8.03(a) and Section 8.03(b) would not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of be satisfied, if such breach is not cured within 20 business days from the date of notice thereof;
(f) by either Parent or Company if this Agreement and the Merger fail to receive the Company and (B) the Parent Termination DateRequisite Shareholder Approval; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to by the Company under this Section 8.1(e9.01(f) if Parent shall not be available to the Company where the failure to obtain such Requisite Shareholder Approval shall have been caused by or Merger Sub is then related in material any way to the Company's breach of any of its covenants or agreements contained in this Agreement;
(g) by Parent, if the Audited Financial Statements are not similar in all material respects as to form and content to the Unaudited Financial Statements, or are not accompanied by an unqualified opinion of the Company Accountants with respect thereto; or
(fh) by Parent at any time prior to Parent, if the date and time that Board of Directors of the Company Requisite Vote is obtained and or any committee thereof shall have failed to recommend or withdrawn or modified or changed, in a copy manner adverse to Parent or Merger Sub, its approval or recommendation of this Agreement or the Merger, whether or not permitted by the terms hereof, or shall have failed to call the Company Shareholders' Meeting in accordance with Section 7.03 (or the Board of Directors of the written consent is delivered Company or any committee thereof shall resolve to Parentdo any of the foregoing).
Appears in 3 contracts
Sources: Merger Agreement (Medplus Inc /Oh/), Merger Agreement (Medplus Inc /Oh/), Merger Agreement (Medplus Inc /Oh/)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of the matters presented in connection with the Merger by the Stockholdersstockholders of the Company or by Parent:
(a) by mutual written consent of Parent the Company and the CompanyParent, or by mutual action of their respective Boards of Directors;
(b) by Parent or either the Company or Parent (i) if any court of competent jurisdiction permanent injunction or other Governmental Entity having jurisdiction over order of a court or other competent authority preventing the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting consummation of the Merger and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable or (ii) if the Company Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a vote held at the Company Stockholder Meeting, or at any adjournment thereof;
(c) by either the Company or Parent if the Merger shall not have been consummated by December 31, 1997; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c) shall not be available to the any party seeking whose breach of any representation or warranty or failure to terminate if fulfill any action of such party covenant or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations agreement under this Agreement required to be performed at or prior to the Effective Time has been the cause of, of or resulted in, in the failure of the Effective Time Merger to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(d) by the Company Parent, so long as Parent is not then in material breach of its obligations hereunder, if there shall have has been a breach of any representationrepresentation or warranty (when made on or at the time of termination as if made on such date of termination, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior except to the earlier of (Aextent it relates to a particular date) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such (provided that any condition set forth in subsection (a) representation or (b) warranty of Section 7.2 would the Company contained herein that is subject to a "materiality," "Material Adverse Effect" or similar qualification shall not be satisfied andso qualified for purposes of determining the existence of any breach thereof on the part of the Company), in either such case, such and which breach is has not curable or shall not have been cured prior to within ten calendar days following receipt by the earlier Company of (A) ten (10) Business Days following written notice of such breach to and is existing at the time of the termination of this Agreement, except for such breaches that would not, individually or in the aggregate with any other breaches on the part of the Company, (A) have a Material Adverse Effect on the Company and or (B) materially adversely affect the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy ability of the written consent is delivered parties hereto to Parent.consummate the transactions contemplated hereby;
Appears in 3 contracts
Sources: Merger Agreement (Atrium Corp), Merger Agreement (Ply Gem Industries Inc), Merger Agreement (Silverman Jeffrey S)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after the Stockholdersrequisite approvals of the stockholders of Company or Parent:
(a) by mutual written consent duly authorized by the Boards of Directors of Parent and the Company;
(b) by either Company or Parent if the Merger shall not have been consummated by March 31, 2007 (the “Outside Date”) for any reason; provided, however, that the Outside Date shall be April 30, 2007 if the Merger shall not have been consummated by March 31, 2007 solely by reason of (i) the failure of the Registration Statement being declared effective under the Securities Act in a timely manner, (ii) the failure to resolve all SEC comments with respect to the Joint Proxy Statement in a timely manner, or (iii) the Company if any court of competent jurisdiction or other failure to obtain all approvals from each Governmental Entity having jurisdiction over (if any) necessary for consummation of the Company transactions contemplated by this Agreement; and provided further, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in 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 Parent if a Governmental Entity shall have issued a final and nonappealable order, decree or ruling with respect to any of the items set forth in Section 6.3(e);
(d) by either Company or taken any other final action restrainingParent, enjoining or otherwise prohibiting if the approval and adoption of this Agreement and the approval of the Merger and such order, decree, ruling by the stockholders of Company shall not have been obtained by reason of the failure to obtain the required vote at a meeting of Company stockholders duly convened therefore or other action is or shall have become final and nonappealableat any adjournment thereof; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(d) shall not be available to Company where the party seeking failure to terminate if obtain Company stockholder approval shall have been caused by the action or failure to act of Company and such party action or any failure to act constitutes a material breach by Company of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8this Agreement;
(ce) by Parent either Company or Parent, if the approval and adoption of this Agreement and the approval of the Merger by the stockholders of Parent shall not have been consummated on obtained by reason of the failure to obtain the required vote at a meeting of Parent stockholders duly convened therefore or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)at any adjournment thereof; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(e) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or Parent where the failure to obtain Parent stockholder approval shall have been caused by the action or failure to act of Parent and such party action or any failure to act constitutes a material breach by Parent of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableAgreement;
(df) by the Parent if a Company Triggering Event (as defined below) shall have occurred;
(g) by Company if there a Parent Triggering Event (as defined below) shall have been occurred;
(h) by Company, either (i) upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of Parent shall have become untrue, in either case such that the conditions set forth in Section 6.2(a) or (bSection 6.2(b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice time of such breach or as of the time such representation or warranty shall have become untrue, or (ii) if a Material Adverse Effect with respect to Parent and (B) the Company Termination Dateshall have occurred; provided that if such inaccuracy in Parent’s or Merger Sub's representations and warranties or breach by Parent or Merger Sub, or if such Material Adverse Effect with respect to Parent, is curable by Parent through the exercise of its commercially reasonable efforts, then Company shall may not have the right terminate this Agreement under this Section 7.1(h) for 20 days after delivery of written notice from Company to Parent of such breach, provided Parent continues to exercise commercially reasonable efforts to cure such breach or Material Adverse Effect with respect to Parent (it being understood that Company may not terminate this Agreement pursuant to this Section 8.1(d7.1(h) if the such breach by Parent or Merger Sub or Material Adverse Effect with respect to Parent is cured during such 20-day period, or if Company is then in material breach of any of its covenants or agreements contained in shall have materially breached this Agreement;); or
(ei) by Parent if there shall have been Parent, either (i) upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement or if any representation or warranty of Company shall have become untrue, in either case such that any condition the conditions set forth in subsection (aSection 6.3(a) or (bSection 6.3(b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice time of such breach or as of the time such representation or warranty shall have become untrue, or (ii) if a Material Adverse Effect with respect to the Company and (B) the Parent Termination Dateshall have occurred; provided that if such inaccuracy in Company’s representations and warranties or breach by Company, or if such Material Adverse Effect with respect to Company, is curable by Company through the exercise of its commercially reasonable efforts, then Parent shall may not have the right terminate this Agreement under this Section 7.1(i) for 20 days after delivery of written notice from Parent to Company of such breach, provided Company continues to exercise commercially reasonable efforts to cure such breach or Material Adverse Effect with respect to Company (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(e7.1(i) if such breach by Company or Material Adverse Effect with respect to Company is cured during such 20-day period, or if Parent or Merger Sub shall have materially breached this Agreement). Each of the above termination rights is then in material breach an independent right that is not exclusive of any other termination right or other right herein. For the purposes of its covenants or agreements contained in this Agreement, a “Company Triggering Event” shall be deemed to have occurred if: (i) the Board of Directors of Company (or any committee thereof) shall for any reason effected a Change of Recommendation; or
(fii) by Parent at any time prior Company shall have failed to include in the date and time that Joint Proxy Statement the Company Requisite Vote is obtained and a copy recommendation of Company’s Board of Directors in favor of the written consent adoption and approval of this Agreement and the approval of the Merger; (iii) the Board of Directors of Company fails to reaffirm (publicly, if so requested by Parent) its recommendation in favor of the adoption and approval of the Agreement and the approval of the Merger within 10 business days after Parent requests in writing that such recommendation be reaffirmed; (iv) the Board of Directors of Company (or any committee thereof) shall have approved or recommended any Acquisition Proposal; (v) Company shall have entered into any non-binding letter of intent, memorandum of understanding, term sheet or Contract with respect to any Acquisition Proposal; (vi) Company shall have materially breached any of the provisions of Sections 5.2 or 5.3; or (vii) a tender or exchange offer relating to securities of Company shall have been commenced by a Person unaffiliated with Parent, and Company shall not have sent to its security holders pursuant to Rule 14e-2 promulgated under the Securities Act, within 10 business days after such tender or exchange offer is delivered to Parentfirst published sent or given, a statement disclosing that Company recommends rejection of such tender or exchange offer.
Appears in 3 contracts
Sources: Merger Agreement (Vitalstream Holdings Inc), Merger Agreement (Vitalstream Holdings Inc), Agreement and Plan of Merger (Internap Network Services Corp)
Termination. (a) This Agreement may be terminated and terminate upon the Merger contemplated hereby may be abandoned at occurrence of any time prior to of the Effective Time, notwithstanding adoption thereof by the Stockholdersfollowing:
(ai) by mutual written consent Termination of Parent and the CompanyManagement Agreement for any reason if such agreement terminates without a successor agreement, or upon the termination of any successor agreement which terminates without a successor agreement;
(bii) Conviction of Physician of a felony or suspension, revocation or non-renewal of Physician's license to practice medicine;
(iii) Upon the mutual agreement of the parties, subject to Management Company's consent, at any time;
(iv) Upon the loss by Parent Physician of Hospital medical staff privileges at the Hospital, as described in Section 5;
(v) By either party upon a material breach of this Agreement by the other party; provided that the non-breaching party first gives the breaching party written notice of the breach, and the breaching party fails to cure the breach within thirty (30) days after such notice;
(vi) By either party without cause upon giving the other six months' prior written notice; provided Physician makes the payments required pursuant to Sections 3 and Section 7 of the Personal Responsibility Agreement, if applicable; or
(vii) Upon death or the Company if any court "permanent disability" (as such term is hereinafter defined) of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Physician. In either such event, this Agreement shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableterminate immediately; provided, however, that Physician (or Physician's legal representative, as the right case may be) will be entitled to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to receive any accrued but unpaid compensation earned by Physician hereunder through the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action date of such party or any event. For purposes of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted inAgreement, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there term "permanent disability" shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition meaning set forth in subsection (a) the long-term disability insurance policy or (b) policies then maintained by Physician or PC, or if no such policy shall then be in effect, or if more than one such policy shall then be in effect in which the term "permanent disability" shall be assigned different definitions, then the term "permanent disability" shall be defined for purposes hereof to mean any physical or mental disability or incapacity which renders Physician incapable of Section 7.3 would not be satisfied and, fully performing the services required in either such case, such breach is not curable accordance with Physician's obligations hereunder for a period of 120 consecutive days or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of for shorter periods aggregating 120 days during any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parenttwelve-month period.
Appears in 3 contracts
Sources: Employment Agreement (Integramed America Inc), Employment Agreement (Integramed America Inc), Employment Agreement (Integramed America Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, Time (notwithstanding any adoption thereof of this Agreement by holders of shares of the Stockholders:Company):
(a) by the mutual written consent of Parent and the Company;
(b) by either Parent or the Company if if:
(i) any statute, law, rule or regulation shall have been enacted or promulgated by any Governmental Entity which prohibits the consummation of the Merger, or there shall be an order or injunction of a court of competent jurisdiction or other Governmental Entity having jurisdiction over in effect prohibiting consummation of the Company shall have issued a final orderMerger, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling order or other action is or injunction shall have become final and nonappealable; provided;
(ii) the Merger shall not have been consummated by 5:30 p.m., howeverEastern time on January 3, 2002 (the "Termination Date"), provided that the right to terminate this Agreement pursuant to this Section 8.1(b9.1(b)(ii) shall not be available to the any party seeking whose failure to terminate if such party or fulfill any of its Subsidiaries has failed obligations under this Agreement results in the failure of the Merger to take such actions with respect thereto as are required to comply with Section 6.8occur on or before the Termination Date; or
(iii) this Agreement shall not have been adopted by the requisite vote of the Company's shareholders at the Special Meeting;
(c) by Parent if if:
(i) the Merger representations and warranties of the Company contained in this Agreement shall not have been consummated be true and correct such that the condition set forth in Section 8.3(a) cannot be satisfied on or before September 15, 2008 (the “Parent Termination Date”), or by ;
(ii) the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries failed to perform in any of its obligations under this Agreement material respect any obligation required to be performed by it at or prior to the Effective Time under this Agreement, which failure to perform has not been cured within 30 days following receipt by the cause ofCompany of notice of such failure to perform from Parent or Merger Sub; or
(iii) the Company Board of Directors (or the Special Committee) at any time after the date of this Agreement shall have publicly announced that it has withdrawn, or resulted inmodified or changed in a manner adverse to Parent or Merger Sub, the failure Company Recommendation (or shall have resolved to do so), irrespective of whether permitted by the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;express terms of this Agreement; or
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on if:
(i) the part representations and warranties of Parent or Merger Sub contained in this Agreement shall not be true and correct such that any the condition set forth in subsection (aSection 8.2(a) or (b) of Section 7.3 would cannot be satisfied and, in either such case, such breach is not curable on or shall not have been cured prior to before the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;or
(eii) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then shall have failed to perform in any material breach of respect any of its covenants obligation required to be performed by it at or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that Effective Time under this Agreement, which failure to perform has not been cured within 30 days following receipt by Parent of notice of such failure to perform from the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentCompany.
Appears in 3 contracts
Sources: Merger Agreement (Polyvision Corp), Merger Agreement (Polyvision Corp), Agreement and Plan of Merger (Polyvision Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after receipt of the StockholdersCompany Shareholder Approval:
(a) by mutual written consent of Parent and the Company (in the case of the Company;, acting with approval of the Company Board upon the recommendation of the Special Committee); or
(b) by either Parent or the Company if any court of competent jurisdiction if:
(i) the Effective Time shall not have occurred on or other Governmental Entity having jurisdiction over before the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableEnd Date; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.01(b)(i) shall not be available to the any party seeking whose failure to terminate if such party or fulfill any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time other breach has been the a material cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date End Date; or
(ii) any Restraint having the effect set forth in Section 8.01(b) hereof shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 9.01(b)(ii) shall not be available to any party whose failure to fulfill any obligation under this Agreement or other breach has been a material cause of, or resulted in, the issuance of such final, non-appealable Restraint; or
(iii) the Company Termination Date, as applicable;Shareholder Approval shall not have been obtained upon a vote held at the Company Shareholders’ Meeting or any adjournment thereof; or
(dc) by the Company if there shall have been Company:
(i) upon a breach by Parent or Merger Sub of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained set forth in this Agreement such that any condition the conditions set forth in subsection (aSection 8.03(a) or (bSection 8.03(b) of Section 7.3 would not be satisfied and, in either such case, and such breach is incapable of being cured or has not curable or shall not have been cured prior to within thirty calendar days of the earlier receipt by Parent of (A) ten (10) Business Days following written notice of such breach to Parent and (B) thereof from the Company Termination DateCompany; provided provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.01(c)(i) if if, at the Company is then in material breach time of any of its covenants or agreements contained in this Agreement;
(e) by Parent if such termination, there shall have been exists a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition would result in the closing conditions set forth in subsection Section 8.02 not being satisfied;
(aii) if (x) all of the conditions set forth in Section 8.01 and Section 8.02 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing, but subject to their satisfaction or waiver by the party having the benefit thereof), (by) the Company has irrevocably confirmed by notice to Parent that all of the conditions set forth in Section 8.03 have been satisfied or that the Company is willing to waive any unsatisfied conditions in Section 8.03 and that the Company is ready, willing and able to consummate the Closing, and (z) Parent and Merger Sub fail to complete the Closing within five Business Days following the date the Closing should have occurred pursuant to Section 2.02;
(iii) if prior to the receipt of the Company Shareholder Approval, (1) the Company Board (upon recommendation of the Special Committee), has authorized the Company to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal pursuant to clause (y) of Section 7.2 7.03(e), and (2) the Company has concurrently with the termination of this Agreement entered into, or immediately after termination of this Agreement, enters into, an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall not be entitled to terminate this Agreement pursuant to this Section 9.01(c)(iii) unless the Company has complied in all respects with the requirements of Section 7.03 and Section 9.03(a)(i); or
(d) by Parent:
(i) upon a breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement such that the conditions set forth in Section 8.02(a) or Section 8.02(b) would not be satisfied and, in either such case, and such breach is incapable of being cured by the End Date or has not curable or shall not have been cured prior to cured, in the earlier case of (A) ten (10) Business Days following a breach of Section 7.03, within 10 calendar days after the Company receives written notice of such breach to from Parent, and in the case of any other breach by the Company, within thirty calendar days of the receipt by the Company and (B) the Parent Termination Dateof written notice thereof from Parent; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.01(d)(i) if, at the time of such termination, there exists a breach of any representation, warranty, covenant or agreement of Parent contained in this Agreement that would result in the closing conditions set forth in Section 8.03 not being satisfied; or
(ii) if (w) the Company Board shall have made a Change in the Company Recommendation in a manner adverse to Parent, (x) the Company Board approves or recommends any Competing Transaction other than the Merger, (y) the Company or the Company Board, acting upon the recommendation of the Special Committee, shall have publicly announced its intention to do any of the foregoing, or (z) the Company fails to hold the Company Shareholders’ Meeting within ten Business Days prior to the End Date due to a willful or intentional breach by the Company of Section 7.02; provided, that the right to terminate this Agreement under this Section 9.01(d)(ii)(z) shall not be available if Parent or Merger Sub is then has breached in any material breach respect its obligations under this Agreement that directly or indirectly caused the failure of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of to hold the written consent is delivered to ParentCompany Shareholders’ Meeting.
Appears in 3 contracts
Sources: Merger Agreement (Sequoia Capital China I Lp), Merger Agreement (Chiu Na Lai), Merger Agreement (Le Gaga Holdings LTD)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at ------------ any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of the terms of this Agreement by the Stockholdersstockholders of the Company:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company Company:
(i) if (x) as a result of the failure of any of the Offer Conditions the Offer shall have terminated or expired in accordance with its terms without Sub having accepted for payment any Shares pursuant to the Offer or (y) Sub shall not have accepted for payment any Shares pursuant to the Offer prior to September 30, 1996; provided, however, that the right to -------- ------- terminate this Agreement pursuant to this Section 9.01(b)(i) shall not be available to any party whose failure to perform any of its obligations under this Agreement results in the failure of any such condition or if the failure of such condition results from facts or circumstances that constitute a breach of representation or warranty under this Agreement by such party; or
(ii) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final an order, decree or ruling or taken any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the acceptance for payment of, or payment for, shares of Company Common Stock pursuant to the Offer or shares of Company Common Stock or Class B Common Stock pursuant to the Merger and such order, decree, decree or ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if or Sub prior to the Merger shall not have been consummated on or before September 15, 2008 (purchase of Shares pursuant to the “Parent Termination Date”), or Offer in the event of a breach by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement such that any which (i) would give rise to the failure of a condition set forth in subsection paragraph (ae) or (bf) of Section 7.3 would Exhibit A and (ii) cannot be satisfied and, in either such case, such breach is or has not curable or shall not have been cured prior within 20 days after the giving of written notice to the earlier Company;
(d) by Parent or Sub if (i) either Parent or Sub is entitled to terminate the Offer as a result of the occurrence of any event set forth in paragraph (Ad) ten of Exhibit A to this Agreement or (10) Business Days following written notice of such breach to Parent and (Bii) the Company Termination Date; provided that Board of Directors of the Company shall not have (or any authorized committee thereof) takes the right action referred to terminate this Agreement pursuant to this in Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement6.03(b);
(e) by the Company in accordance with Section 6.02(b), provided that it has complied with all provisions thereof, including the notice provisions therein, and that it complies with applicable requirements relating to the payment (including the timing of any payment) of Expenses and the Termination Fee;
(f) by the Company, if Sub or Parent if there shall have been a breach of breached in any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of respect any of its their respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform is incapable of being cured or has not been cured within 20 days after the giving of written notice to Parent or Sub, as applicable; or
(fg) by Parent at any time prior to the date and time that Company, if the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentOffer has not been timely commenced in accordance with Section 1.01.
Appears in 3 contracts
Sources: Merger Agreement (Curtis Helene Industries Inc /De/), Merger Agreement (Curtis Helene Industries Inc /De/), Agreement and Plan of Merger (Conopco Acquisition Co Inc)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned abandoned, at any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of the Merger by the Stockholdersstockholders of the Company:
(a) by mutual written consent of the Company, on the one hand, and of Parent and Sub, on the Companyother hand;
(b) by either Parent or the Company, if the Effective Time shall not have occurred by September 30, 1999 (unless the failure to consummate the Merger is attributable to a failure on the part of the party seeking to terminate this Agreement to perform any material obligation required to be performed by such party at or prior to the Effective Time);
(c) by Parent, if the required approval of the Company's stockholders shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting of stockholders or at any adjournment thereof;
(d) by either Parent or the Company if the required approval of Parent's stockholders of the issuance of Parent Shares in the Merger shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting of stockholders or at any court adjournment thereof;
(e) by either Parent or the Company, if there shall be any law or regulation of competent jurisdiction or other any Governmental Entity having jurisdiction over that makes consummation of the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining Merger illegal or otherwise prohibited or if any judgment, injunction, order or decree of any Governmental Entity prohibiting the Merger such transaction is entered and such orderjudgment, decreeinjunction, ruling order or other action is or decree shall have become final and nonappealable;
(f) by either Parent or the Company, if there has been a breach of any covenant or a breach of any representation or warranty on the part of the other, such that the condition set forth in Section 5.2(a) or Section 5.2(b) (in the case of any termination by Parent) or the condition set forth in Section 5.3(a) or Section 5.3(b) (in the case of any termination by the Company) would not be satisfied; providedPROVIDED that any such breach of a covenant or representation or warranty has not been cured within 15 business days following receipt by the breaching party of notice hereunder of such breach;
(g) by Parent, howeverif the Special Meeting is canceled or is otherwise not held or if a final vote of the Company's stockholders has not been taken with respect to the Merger prior to September 15, 1999, except as a result of a judgment, injunction, order or decree of any competent authority or events or circumstances beyond the reasonable control of the Company; PROVIDED, HOWEVER, that the right to terminate such termination under this Agreement pursuant to this Section 8.1(bclause (g) shall not be available relieve the Company of its fee obligations under Section 7.1(c) hereof; or
(h) by Parent, if (i) the Board of Directors of the Company shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation to the party seeking to terminate if such party Company's stockholders of this Agreement or any of its Subsidiaries has the Merger; (ii) the Company shall have failed to take such actions with respect thereto as are required include in the Joint Proxy Statement the recommendation of the Board of Directors of the Company in favor of the adoption and approval of this Agreement and the approval of the Merger; (iii) the Board of Directors of the Company shall have approved, endorsed or recommended any Takeover Proposal; (iv) a tender or exchange offer relating to comply with Section 6.8;
(c) by Parent if securities of the Merger Company shall have been commenced and the Company shall not have been consummated on sent to its security holders, within ten business days after the commencement of such tender or before September 15exchange offer, 2008 (the “Parent Termination Date”), or by a statement disclosing that the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action recommends rejection of such party tender or any of its Subsidiaries or exchange offer; (v) the failure of such party or any of its Subsidiaries to perform Company breaches any of its obligations under Section 4.16 of this Agreement required to be performed at or prior Agreement; (vi) subsequent to the Effective Time has been date of this Agreement, a Person or "group" (as defined in the cause ofExchange Act and the rules promulgated thereunder) of Persons directly or indirectly becomes the beneficial or record owner of securities representing, or resulted inexchangeable for or convertible into, the failure at least 20% of the Effective Time to occur on or before the Parent Termination Date or outstanding securities of any class of voting securities of the Company Termination Dateor any material Subsidiary of the Company; (vii) a Person or group of Persons that, as applicable;
(d) by of the date of this Agreement, directly or indirectly is the beneficial or record owner of securities representing, or exchangeable for or convertible into, 20% or more of the outstanding securities of any class of voting securities of the Company if there shall have been a breach or any material Subsidiary of the Company, directly or indirectly acquires beneficial or record ownership of an additional 5% of the outstanding securities of any representation, warranty, covenant class of voting securities of the Company or agreement on any material Subsidiary of the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) Company; or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (Bviii) the Company Termination Dateor the Company's Board of Directors or any committee thereof shall have resolved to do or permit any of the foregoing; provided PROVIDED, HOWEVER, that such termination under this clause (h) shall not relieve the Company shall not have the right to terminate this Agreement pursuant to of its fee obligations under Section 7.1(c) hereof. For purposes of clause (vii) of this Section 8.1(d) if 6.1(h), a group shall be deemed to include, without limitation, all Persons who file a Statement or Statements on Schedule 13D as a group, whether or not such Persons disclaim the Company is then in material breach existence of a group and whether or not such Persons disclaim beneficial ownership of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentsecurities.
Appears in 3 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Merger Agreement (Nexstar Pharmaceuticals Inc), Merger Agreement (Warburg Pincus Investors Lp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the First Effective TimeTime (whether before or after the receipt of the Required Company Stockholder Vote or the Required Parent Stockholder Vote, notwithstanding adoption thereof by except to the Stockholdersextent otherwise provided below) as follows:
(a) by mutual written consent of Parent Parent, Merger Subs and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall not have become final and nonappealablebeen consummated by the End Date; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.1(b) (Termination) shall not be available to the party seeking Company, on the one hand, or to terminate Parent, on the other hand, if such party Party’s action or any failure to act has been a principal cause of its Subsidiaries has failed the failure of the Merger to take occur on or before the End Date and such actions with respect thereto as are required action or failure to comply with Section 6.8act constitutes a breach of this Agreement;
(c) by either Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if a court of competent jurisdiction or other Governmental Body of competent jurisdiction shall have issued a final and non-appealable order, decree or ruling, in each case, having the Merger shall not have been consummated on effect of permanently restraining, enjoining or before September 30, 2008 (otherwise prohibiting or making illegal the “Company Termination Date”)Merger; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(c) (Termination) shall not be available to the party seeking Company, on the one hand, or to terminate Parent, on the other hand, if any action such Party did not use commercially reasonable efforts to have such order, decree or ruling vacated prior to its becoming final and non-appealable and such failure to use commercially reasonable efforts constitutes a breach of such party this Agreement;
(d) by Parent, if the Company shall have breached or any of its Subsidiaries or the failure of such party or any of its Subsidiaries failed to perform any of its representations, warranties, covenants, obligations under or agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 7.1 (Accuracy of Representations and Warranties) or Section 7.2 (Performance of Covenants) and (ii) cannot be, or has not been, cured within 30 calendar days following receipt by the Company of written notice of such material breach or failure to perform; provided that Parent may not terminate this Agreement required pursuant to be performed at this Section 9.1(d) (Termination) if Parent is in breach of this Agreement such that the Company has the right to terminate this Agreement pursuant to Section 9.1(e) (Termination) but for the provision thereto;
(e) by the Company, if Parent or prior Merger Subs shall have breached or failed to perform any of their respective representations, warranties, covenants, obligations or agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the Effective Time failure of a condition set forth in Section 8.1 (Accuracy of Representations and Warranties) or Section 8.2 (Performance of Covenants) and (ii) cannot be, or has not been, cured within 30 calendar days following receipt by Parent of written notice of such material breach or failure to perform; provided that the Company may not terminate this Agreement pursuant to this Section 9.1(e) (Termination) if the Company is in breach of this Agreement such that Parent has the right to terminate this Agreement pursuant to Section 9.1(d) (Termination) but for the proviso thereto;
(f) (i) by Parent if, upon a vote at a duly held meeting to obtain the Required Parent Stockholder Vote, the Required Parent Stockholder Vote shall not have been obtained, or (ii) by the Company, if upon a vote at a duly held meeting to obtain the Required Company Stockholder Vote, the Required Company Stockholder Vote shall not have been obtained; provided, however, in each case, the right to terminate shall not be available to the Parent or the Company, as the case may be, if either Party’s action or failure to act (which action or failure to act constitutes a breach by such Party of this Agreement) has been the cause of, or resulted in, the failure of to obtain the Effective Time to occur on Requisite Parent Stockholder Approval or before the Parent Termination Date or Requisite Company Stockholder Approval; and
(g) by Parent, if the Company Termination Date, as applicable;Board (or a committee thereof) makes a Company Adverse Change Recommendation.
(dh) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained as described in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right 5.2(b)(i). The Party desiring to terminate this Agreement pursuant to this Section 8.1(d) if 9.1 (Termination), shall give the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been other Party written a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to termination, specifying the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement provisions hereof pursuant to this Section 8.1(e) if Parent or Merger Sub which such termination is then made and the basis therefor described in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentreasonable detail.
Appears in 3 contracts
Sources: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholdersabandoned:
(a) by By mutual written consent of Parent and the Company;Company duly authorized by the Board of Directors of Parent and the Company Board of Directors at any time before the Effective Time, whether before or after stockholder adoption of this Agreement; or
(b) by By either Parent or the Company Company:
(i) if at any time before the Effective Time, whether before or after stockholder adoption of this Agreement, a court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final an order, decree or ruling or taken any other action, and such order, decree or ruling or other action shall have become final action and non-appealable, or there shall exist any statute, rule or regulation, in each case, permanently restraining, enjoining or otherwise prohibiting (collectively, “Restraints”) the Merger and such order, decree, ruling consummation of the Offer or other action is or shall have become final and nonappealablethe Merger; provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(b8.1(b)(i) shall not be available have used reasonable best efforts to prevent the party seeking entry of and to terminate if remove such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply Restraints in accordance with Section 6.8;6.6; or
(cii) by Parent if the Merger shall Acceptance Time has not have been consummated on or before September 15occurred by November 6, 2008 2009 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b)(ii) shall not be available to the any party seeking to terminate if any action whose breach of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the principal cause of, or resulted in, the failure of the Effective Acceptance Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;have occurred by such date; or
(dc) By Parent if, prior to the Acceptance Time, there has been a breach by the Company if there shall have been a breach of or inaccuracy in, any representation, warranty, covenant or agreement on of the part of Parent or Merger Sub contained in this Agreement such that any condition Company set forth in subsection this Agreement, which breach or inaccuracy has resulted in the conditions set forth in paragraphs (ac) or (be) of Section 7.3 would Annex I not be being satisfied and, in either such case, (and such breach or inaccuracy has not been cured or such condition has not been satisfied within twenty (20) days after the receipt of notice thereof or such breach or inaccuracy is not curable reasonably capable of being cured or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier reasonably capable of (A) ten (10) Business Days following written notice of being satisfied within such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreementperiod); or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Vnus Medical Technologies Inc), Merger Agreement (Covidien Group S.a.r.l.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeTime of the First Merger, notwithstanding adoption thereof by action taken or authorized by the StockholdersBoard of Directors of the terminating party or parties, and except as provided below, whether before or after the requisite approvals of the stockholders of Company or Parent:
(a) by mutual written consent duly authorized by the Boards of Directors of Parent and the Company;
(b) by Parent either Company or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the First Merger shall not have been consummated on or before September 15by December 31, 2008 2010 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(b) shall not be available to the any party seeking whose action or failure to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time act has been the a principal cause of, of or resulted in, in the failure of the Effective Time First Merger to occur on or before such date and such action or failure to act constitutes a material breach of this Agreement;
(c) by either Company or Parent if a Governmental Entity shall have issued an order, decree or ruling or taken any other action (including the Parent Termination Date failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Company Termination DateFirst Merger, as applicablewhich order, decree, ruling or other action is final and nonappealable;
(d) by either Company or Parent if the adoption of this Agreement as contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at the Stockholders’ Meeting of Company duly convened therefor or at any adjournment or postponement thereof at which the applicable vote is taken;
(e) by either Company or Parent if there the approval of the First Merger, including the Share Issuance by the shareholders of Parent as contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at the Stockholders’ Meeting of Parent duly convened therefor or at any adjournment or postponement thereof at which the applicable vote is taken;
(f) by Parent if a Triggering Event (as defined below in this Section 7.1) with respect to Company shall have been occurred, provided that any such termination must occur within 10 business days after the Triggering Event;
(g) by Company (as authorized by its Board of Directors), upon a breach of any representation, warranty, covenant or agreement on the part of Parent or and Merger Sub contained in this Agreement such that any condition Subs set forth in subsection (athis Agreement, or if any representation or warranty of Parent and Merger Subs shall have become inaccurate, in either case such that the conditions set forth in Section 6.2(a) or (bSection 6.2(b) of Section 7.3 would not be satisfied and, in either such case, 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 and Merger Subs’ representations and warranties or breach by Parent and Merger Subs is not curable or shall not have been cured by Parent and Merger Subs prior to the earlier Outside Date, then Company may not terminate this Agreement under this Section 7.1(g) prior to 30 days following the receipt of (A) ten (10) Business Days following written notice of such breach from Company to Parent and (B) the Company Termination DateMerger Subs of such inaccuracy or breach; provided further that the Parent exercises commercially reasonable efforts to cure such breach through such 30-day period (it being understood that Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(d7.1(g) if the Company it shall have materially breached this Agreement or if such inaccuracy or breach by Parent and Merger Subs is then cured in all material breach of any of its covenants or agreements contained in this Agreement;respects within such 30-day period); and
(eh) by Parent if there shall have been (as authorized by its Board of Directors), upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of Company shall have become inaccurate, in either case such that the conditions set forth in Section 6.3(a) or (bSection 6.3(b) of Section 7.2 would not be satisfied and, in either such case, 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 Company’s representations and warranties or breach by Company is not curable or shall not have been cured by Company prior to the earlier Outside Date, then Parent may not terminate this Agreement under this Section 7.1(h) prior to 30 days following the receipt of (A) ten (10) Business Days following written notice from Parent to Company of such breach to the Company and (B) the Parent Termination Dateinaccuracy or breach; provided further that Company exercise commercially reasonable efforts to cure such breach through such 30-day period (it being understood that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(e7.1(h) if it shall have materially breached this Agreement or if such inaccuracy or breach by Company is cured in all material respects within such 30-day period). For the purposes of this Agreement, a “Triggering Event” shall be deemed to have occurred if: (i) Company’s Board of Directors or any committee thereof shall for any reason have made a Change of Recommendation, (ii) Company shall have failed to include in the Proxy Statement/Prospectus the recommendation of its Board of Directors in favor of the adoption of this Agreement, (iii) after receipt by Company of a publicly disclosed Acquisition Proposal, its Board of Directors fails to reaffirm (publicly, if so requested) its recommendation in favor of the adoption of this Agreement, within 10 business days after Parent requests in writing that such recommendation be reaffirmed, (iv) Company’s Board of Directors or Merger Sub any committee thereof shall have approved or recommended any Acquisition Proposal, (v) Company shall have entered into any letter of intent or similar document or any contract or commitment accepting any Acquisition Proposal (other than a confidentiality agreement as contemplated by Section 5.3(c)(i)), (vi) a tender or exchange offer relating to Company’s securities shall have been commenced by a Person unaffiliated with Parent and Company shall not have sent to its security holders pursuant to Rule 14e-2 promulgated under the Securities Act, within 10 business days after such tender or exchange offer is then in material breach first published, sent or given, a statement disclosing that the Board of Directors of Company recommends rejection of such tender or exchange offer, (vii) Company shall have publicly announced its intention to do any of its covenants the foregoing or agreements contained in this Agreement; or
(fviii) by Parent at any time prior to Company has materially breached the date and time that the Company Requisite Vote is obtained and a copy provisions of the written consent is delivered to ParentSection 5.2 or 5.3 hereof.
Appears in 3 contracts
Sources: Merger Agreement (Divx Inc), Merger Agreement (Sonic Solutions/Ca/), Merger Agreement (Divx Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption approval thereof by the Stockholdersstockholders of the Company:
(a) by mutual written consent of Parent Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction over within the Company United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable; provided, however, provided that the right party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have used efforts as required by Section 6.10 to prevent, oppose and remove such order decree or ruling or other action and the issuance of such final, non-appealable order, decree or ruling or other action was not be available primarily due to the failure of the party seeking to terminate if such party or this Agreement to perform any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8obligations under this Agreement;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger Effective Time shall not have been consummated occurred on or before September 30March 31, 2008 2010 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any (or, in the case of its Subsidiaries Parent, Merger Sub) or the failure of such party or any (or, in the case of its Subsidiaries Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date and such action or failure to perform constitutes a breach of this Agreement; provided, further, that, if on a date that would otherwise have been the Termination Date the conditions set forth in Section 7.1(c) are the only conditions in Article VII (other than those conditions that by their terms are not to be satisfied until the Closing) that shall not have been satisfied or waived on or before such date, either the Company or Parent may extend the Termination Date by up to three months by written notice to the other on or prior to the Termination Date, as applicable;in which case the Termination Date shall be deemed for all purposes to be such later date.
(d) by the Company Company:
(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition the conditions set forth in subsection (aSection 7.3(a) or (bSection 7.3(b) of Section 7.3 would not be satisfied and, in either such case, such breach is incapable of being cured or has not curable or shall not have been cured prior to by the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall have given Parent at least twenty days written notice prior to such termination stating the Company’s intention to terminate this Agreement pursuant to this Section 8.1(d)(i); provided further that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(d)(i) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;; or
(ii) if all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that by their terms are not to be satisfied until the Closing) and Parent or Merger Sub has failed to consummate the Merger promptly following satisfaction of such conditions; or
(iii) prior to the obtaining the Company Requisite Vote, pursuant to and subject to the terms and conditions of Section 6.5(b); or
(e) by Parent Parent:
(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition the conditions set forth in subsection (aSection 7.2(a) or (bSection 7.2(b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been incapable of being cured prior to by the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e8.1(e)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(ii) if, prior to receipt of the Company Requisite Vote, the Board of Directors of the Company or any committee thereof (A) shall have made a Change of Recommendation or (B) shall have recommended, adopted or approved, or publicly proposed to recommend, adopt or approve, any Acquisition Proposal or Acquisition Proposal Documentation; or
(f) by either Parent or the Company if, upon a vote taken thereon at the Stockholders Meeting or any time prior to the date and time that postponement or adjournment thereof, this Agreement shall not have been adopted by the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentVote.
Appears in 3 contracts
Sources: Merger Agreement (Virgin Mobile USA, Inc.), Merger Agreement (Sprint Nextel Corp), Agreement and Plan of Merger (Sprint Nextel Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby Mergers may be abandoned at any time prior to the Effective TimeClosing, notwithstanding adoption thereof by whether before or after the StockholdersEVI Stockholder Approval or the MTI Stockholder Approval has been obtained:
(a) by mutual written consent agreement of EVI, Parent and MTI, duly authorized by the Companyrespective board of directors of each;
(b) by Parent EVI, MTI or the Company if Parent, if:
(1) any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Authority shall have issued a final orderan Order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger transactions contemplated by this Agreement and such order, decree, ruling Order or other action is or shall have become final and nonappealablenon-appealable; provided, that the Party seeking to terminate this Agreement pursuant to this Section 9.1(b)(1) shall have used its reasonable best efforts to contest, appeal and remove such Order or action and shall not be in violation of Section 7.4 hereof; and provided, further, that the right to terminate this Agreement under this Section 9.1(b)(1) shall not be available to any Party if the issuance of such final, non-appealable Order was substantially the result of the failure of such Party to perform any of its obligations under this Agreement;
(2) the Closing shall not have occurred on or before the Outside Date; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.1(b)(2) shall not be available to any Party whose failure to fulfill in any material respect any covenants and agreements of such Party under this Agreement is a principal cause of the party seeking failure of the Mergers to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;be consummated by the Outside Date; or
(c3) by Parent if the Merger EVI Stockholder Meeting or MTI Stockholder Meeting shall have been duly held and completed and the EVI Stockholder Approval or MTI Stockholder Approval, as applicable, shall not have been consummated on obtained at that meeting or before September 15, 2008 (the “Parent Termination Date”), at any adjournment or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)postponement thereof; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b)(3) shall not be available to the party seeking to terminate EVI or MTI, as applicable, if any action of such party or any of its Subsidiaries or the failure of such party by EVI or any of its Subsidiaries MTI, as applicable, to perform any of its obligations under this Agreement required has been a principal cause of the failure to obtain the EVI Stockholder Approval or MTI Stockholder Approval, as applicable.
(c) by Parent, if:
(1) the representations and warranties of EVI or MTI shall not be true and correct as of the date hereof or shall become not true and correct at any time hereafter or EVI or MTI shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, which failure to be performed at true and correct, breach or prior failure to the Effective Time has been the cause of, or resulted in, perform would give rise to the failure of any of the Effective Time conditions set forth in Section 8.2(a) or Section 8.2(b), and which failure to occur on be true and correct, breach or before the Parent Termination Date failure to perform is not capable of being cured by EVI or the Company Termination DateMTI, as applicable, by the Outside Date or, if capable of being cured, is not cured by EVI or MTI, as applicable, within ten (10) days following written notice to EVI or MTI, as applicable, but no later than the Outside Date;
(2) (A) the EVI Board or MTI Board makes an Adverse Recommendation Change; (B) EVI or MTI shall have publicly announced its intention to make an Adverse Recommendation Change; or (C) EVI or MTI shall have materially breached any of its obligations under Section 7.2; or
(3) EVI or MTI shall have entered into an Acquisition Agreement or shall have publicly announced its intention to do so;
(d) by EVI, if:
(1) the Company if there representations and warranties of Parent and MTI shall not be true and correct or Parent or MTI shall have been a breach breached or failed to perform any of any representation, warranty, covenant its respective covenants or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition agreements set forth in subsection (athis Agreement, which failure to be true and correct, breach or failure to perform would give rise to the failure of any of the conditions set forth in Section 8.3(a) or (b) of Section 7.3 would not 8.3(b), and which failure to be satisfied andtrue and correct, in either such case, such breach or failure to perform is not curable cured by Parent or shall not have been cured prior to the earlier of (A) MTI, as applicable, within ten (10) Business Days days following written notice of such breach to Parent and or MTI, as applicable, or is by its nature or timing not capable of being cured; or
(2) (A) the MTI Board makes an Adverse Recommendation Change; (B) MTI shall have publicly announced its intention to make an Adverse Recommendation Change; or (C) MTI shall have materially breached any of its obligations under Section 7.2;
(3) MTI shall have entered into an Acquisition Agreement or shall have publicly announced its intention to do so; or
(4) If the Company Termination Date; provided that holders of more than 100,000 shares of MTI Common Stock assert appraisal rights;
(e) by MTI, if:
(1) the Company representations and warranties of Parent and EVI shall not be true and correct or Parent or EVI shall have breached or failed to perform any of its respective covenants or agreements set forth in this Agreement, which failure to be true and correct, breach or failure to perform would give rise to the right failure of any of the conditions set forth in Section 8.4(a) or Section 8.4(b), and which failure to be true and correct, breach or failure to perform is not cured by Parent or EVI, as applicable, within ten (10) days following written notice to Parent or EVI, as applicable, or is by its nature or timing not capable of being cured; or
(2) (A) the EVI Board makes an Adverse Recommendation Change; (B) EVI shall have publicly announced its intention to make an Adverse Recommendation Change; or (C) EVI shall have materially breached any of its obligations under Section 7.2; or
(3) EVI shall have entered into an Acquisition Agreement or shall have publicly announced its intention to do so. The Party desiring to terminate this Agreement pursuant to clause Section 9.1(b) Section 9.1(c), Section 9.1(d) or Section 9.1(e) of this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there 9.1 shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following give written notice of such breach termination to the Company and (B) other Parties in accordance with Section 10.8, specifying the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement provision or provisions hereof pursuant to this Section 8.1(e) if Parent or Merger Sub which such termination is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parenteffected.
Appears in 3 contracts
Sources: Merger Agreement (Ehave, Inc.), Merger Agreement (Ei. Ventures, Inc.), Merger Agreement (Mycotopia Therapies, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of this Agreement by the Stockholdersstockholders of the Company:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company Company:
(i) if (x) as a result of the failure of any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Offer Conditions the Offer shall have issued a final orderterminated or expired in accordance with its terms without Purchaser's having accepted for payment any Shares pursuant to the Offer or (y) Purchaser shall not have accepted for payment any Shares pursuant to the Offer prior to August 31, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable1999; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b8.01(b)(i) shall not be available to the any party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the whose failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement results in the failure of any such condition or if the failure of such condition results from facts or circumstances that constitute a breach of any representation or warranty under this Agreement by such party; or
(ii) if any governmental entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the acceptance for payment of, or payment for, Shares pursuant to the Offer and such order, decree or ruling or other action shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this clause (ii) shall have used all commercially reasonable efforts to remove such order, decree, ruling, judgment or injunction, it being understood that in no event shall Parent, Purchaser, the Company or the Surviving Corporation be required to hold separate or divest any of their respective assets or agree to any restrictions in their businesses as currently or proposed to be performed at conducted.
(c) by Parent or Purchaser prior to the Effective Time has been purchase of Shares pursuant to the cause of, or resulted in, Offer in the failure event of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) a breach by the Company if there shall have been a breach of any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement (unless such that any breach was directly caused by an act or omission of Parent or Purchaser) which (i) would give rise to the failure of a condition set forth in subsection paragraph (a) or (bd) of Section 7.3 would Annex A to this Agreement and (ii) cannot be satisfied and, in either such case, such breach is or has not curable or shall not have been cured within 20 days after the giving of written notice thereof to the Company by Parent or Purchaser;
(d) by Parent or Purchaser prior to the earlier purchase of Shares pursuant to the Offer if either Parent or Purchaser is entitled to terminate the Offer as a result of the occurrence of any event set forth in paragraph (Af) ten of Annex A to this Agreement;
(10e) Business Days following written notice of such breach to Parent and (B) by the Company Termination Dateif the Board determines in good faith that a Takeover Proposal constitutes a Superior Proposal and the Board determines in good faith, after receiving the advice of independent legal counsel, that the failure to approve such Takeover Proposal and to terminate this Agreement would constitute a breach of the Board's fiduciary duties under applicable law; provided that the Company has complied with all provisions of Section 6.05, including the notice provisions therein, and that it has complied with the requirements of Section 8.03 relating to the payment (including the timing of any payment) of the Expenses and the Termination Fee to the extent required by Section 8.03; and provided, further, that the Company may not terminate this Agreement pursuant to this Section 8.01(e) unless and until 72 hours have elapsed following delivery to Parent of a written notice of such determination by the Board.
(f) by the Company prior to the purchase of Shares pursuant to the Offer if (i) any of the representations or warranties of Parent or Purchaser set forth in this Agreement that are qualified as to materiality shall not be true and correct in any respect or any such representations or warranties that are not so qualified shall not be true and correct in any material respect, or (ii) Parent or Purchaser shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of Parent or Purchaser to be performed or complied with by it under this Agreement and such untruth, incorrectness or failure cannot be or has not been cured within 20 days after the Company's giving of written notice to Parent or Purchaser, as applicable; or
(g) by the Company, if the Offer has not been timely commenced in accordance with Section 1.01. The right of any party hereto to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then 8.01 shall remain operative and in material breach full force and effect regardless of any investigation made by or on behalf of its covenants any party hereto, any person controlling any such party or agreements contained in any of their respective officers or directors, whether prior to or after the execution of this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Shopko Stores Inc), Merger Agreement (Citigroup Inc), Merger Agreement (Pamida Holdings Corp/De/)
Termination. This (a) Notwithstanding Section 2.03, this Agreement may be terminated earlier by ▇▇▇▇▇▇▇: (i) if Veralto, any Veralto Provider or any of the Veralto Group are in material breach of the terms of this Agreement and such breach is not corrected within thirty (30) days of a written notice from ▇▇▇▇▇▇▇ or the Merger contemplated hereby may ▇▇▇▇▇▇▇ Transition Manager of such breach; (ii) immediately upon written notice from ▇▇▇▇▇▇▇ or the ▇▇▇▇▇▇▇ Transition Manager, with respect to any ▇▇▇▇▇▇▇ Provided Service or access to any ▇▇▇▇▇▇▇ Provided Facility, if the continued performance of such ▇▇▇▇▇▇▇ Provided Service or the provision of access to such ▇▇▇▇▇▇▇ Provided Facility would be abandoned at a violation of any time Law or any Contract in effect prior to the Effective TimeDistribution Date; or (iii) upon any failure of Veralto to pay any outstanding Service Charge due to ▇▇▇▇▇▇▇, notwithstanding adoption thereof except to the extent any part of an outstanding Service Charge is not paid due to a good faith dispute of such Service Charge by the Stockholders:
(a) by mutual written consent of Parent and the Company;Veralto.
(b) Notwithstanding Section 2.03, this Agreement may be terminated earlier by Parent Veralto: (i) if ▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇ Provider is in material breach of the terms of this Agreement and such breach is not corrected within thirty (30) days of a written notice from Veralto or the Company Veralto Transition Manager of such breach; (ii) immediately upon written notice from Veralto or the Veralto Transition Manager, with respect to any Veralto Provided Service or access to any Veralto Provided Facility, if the continued performance of such Veralto Provided Service or the provision of access to such Veralto Provided Facility would be a violation of any court of competent jurisdiction Law or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available Contract in effect prior to the party seeking Distribution Date; or (iii) upon the failure of ▇▇▇▇▇▇▇ to terminate if pay any outstanding Service Charge due to Veralto, except to the extent any part of an outstanding Service Charge is not paid due to a good faith dispute of such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;Service Charge by ▇▇▇▇▇▇▇.
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 Without prejudice to any rights with respect to a Force Majeure: (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right i) a Recipient may from time to time terminate this Agreement pursuant with respect to this Section 8.1(cany Service or access to Facility, in whole but not in part: (A) shall not be available for any reason or no reason upon providing at least thirty (30) days’ prior written notice to the party seeking to terminate if any action Provider’s Veralto Transition Manager or ▇▇▇▇▇▇▇ Transition Manager, as applicable, of such termination (unless a longer notice period is specified in the Schedules attached hereto or in a third party Contract to provide Services or any of its Subsidiaries or access to Facilities); (B) if the failure Provider of such party Service or any of its Subsidiaries Facilities has failed to perform any of its material obligations under this Agreement required with respect to be performed at such Service or prior access to Facility, and such failure shall continue to exist thirty (30) days after receipt by the Effective Time has been the cause of, Provider’s Veralto Transition Manager or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date▇▇▇▇▇▇▇ Transition Manager, as applicable;, of written notice of such failure from the Recipient’s Veralto Transition Manager or ▇▇▇▇▇▇▇ Transition Manager, as applicable; or (C) immediately upon mutual written agreement of the Parties; and (ii) a Provider may terminate this Agreement with respect to one or more Services or access to Facilities, in whole but not in part, at any time upon prior written notice to the Recipient’s Veralto Transition Manager or ▇▇▇▇▇▇▇ Transition Manager, as applicable, if the Recipient has failed to perform any of its material obligations under this Agreement relating to such Services or access to Facilities, and such failure shall be continued uncured for a period of thirty (30) days after receipt by the Recipient’s Veralto Transition Manager or ▇▇▇▇▇▇▇ Transition Manager, as applicable, of a written notice of such failure from the Provider’s Veralto Transition Manager or ▇▇▇▇▇▇▇ Transition Manager, as applicable. The relevant Schedule shall be updated to reflect any terminated Service. In the event that the effective date of the termination of any Service or access to Facility is a day other than at the end of a month, the Service Charge associated with such Service or access to Facility shall be pro-rated appropriately.
(d) A Recipient may from time to time request a reduction in part of the scope or amount of any Service or access to Facility. If requested to do so by the Company if there shall have been a breach Recipient’s Veralto Transition Manager or ▇▇▇▇▇▇▇ Transition Manager, as applicable, the other Party, through its Veralto Transition Manager or ▇▇▇▇▇▇▇ Transition Manager, as applicable, agrees to discuss in good faith appropriate reductions to the relevant Service Charges in light of all relevant factors including the costs and benefits to the Provider of any representation, warranty, covenant or agreement on such reductions. The relevant Schedule shall be updated to reflect any reduced Service agreed to in writing by the part of Parent or Merger Sub contained in this Agreement such Parties. In the event that any condition set forth Service or access to Facility is so reduced other than at the end of a month, the Service Charge associated with such Service or access to Facility for the month in subsection which such Service or access to Facility is reduced shall be pro-rated appropriately.
(ae) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach To the extent that a Recipient is not curable or shall not have been cured prior to the earlier in compliance with Section 7.01(b) and such non-compliance remains unremedied for a period of (A) ten (10) Business Days following written notice of such breach to Parent and (B) days, the Company Termination Date; provided that Provider may terminate the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach provision of any of its covenants Services or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement access to Facilities provided under such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentthird party Contract.
Appears in 3 contracts
Sources: Transition Services Agreement (Veralto Corp), Transition Services Agreement (Danaher Corp /De/), Transition Services Agreement (Veralto Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by and the StockholdersOffer and the Merger may be abandoned, whether before or after receipt of the Company Stockholder Approval:
(a) by mutual written consent of Parent Parent, Merger Sub and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;Company:
(ci) by Parent if the Merger Appointment Time shall not have been consummated occurred on or before September 15December 31, 2008 2007 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination End Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.01(b)(i) shall not be available to the any party seeking to terminate if any action whose willful breach of such party a representation or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under warranty in this Agreement required or whose other action or failure to be performed at or prior to the Effective Time act has been the a principal cause of, of or resulted in, in the failure of the Effective Appointment Time to occur on or before such date;
(ii) if any Restraint preventing the Parent Termination Date consummation of the Offer or the Merger or imposing a Materially Burdensome Condition shall be in effect and shall have become final and nonappealable; or
(iii) if the Offer shall have expired or been terminated in accordance with the terms of this Agreement without Parent or Merger Sub having accepted for purchase any shares of Company Termination Common Stock pursuant to the Offer, other than due to a breach of this Agreement by the terminating party;
(c) by Parent, prior to the Appointment Time, if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (A) would result in any of the events set forth in clause (c) or (d) of Annex A to occur and (B) is not cured, or incapable of being cured, by the Company within 30 calendar days following receipt of written notice of such breach or failure to perform from Parent (or, if the End Date is less than 30 calendar days from the notice by Parent, is not cured, or is incapable of being cured, by the Company by the End Date, as applicable);
(d) by the Company Company, prior to the Appointment Time, if there Parent or Merger Sub shall have been breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (A) would result in (1) any representation or warranty of Parent and Merger Sub contained in Sections 3.02(b) and 3.02(f) of this Agreement that is qualified as to materiality or by reference to Parent Material Adverse Effect or Parent Material Adverse Change not being true and correct, or any representation or warranty of Parent and Merger Sub that is not so qualified not being true and correct in all material respects, (2) any other representation or warranty of Parent and Merger Sub contained in this Agreement not being true and correct (without giving effect to any qualifications or limitations as to materiality or Parent Material Adverse Effect or Parent Material Adverse Change set forth therein) except, in the case of this clause (2), to the extent that the facts or matters as to which such representation or warranty is not so true and correct, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect or (3) a failure by Parent or Merger Sub to perform in all material respects its agreements, covenants and obligations required to be performed by it under this Agreement at or prior to such time and (B) is not cured, or is incapable of being cured, by Parent within 30 calendar days following receipt of written notice of such breach or failure to perform from the Company (or, if the End Date is less than 30 calendar days from the notice by the Company, is not cured, or is incapable of being cured, by Parent by the End Date);
(e) by Parent, prior to the Appointment Time, in the event that (i) a Company Adverse Recommendation Change shall have occurred or (ii) the Board of Directors of the Company fails publicly to reaffirm its adoption and recommendation of this Agreement, the Offer, the Merger or the other transactions contemplated by this Agreement within ten Business Days of receipt of a written request by Parent to provide such reaffirmation following a Takeover Proposal;
(f) by the Company prior to the Appointment Time, in accordance with the terms and subject to the conditions of Section 4.02(b) and provided that, concurrently with such termination, the Company pays to Parent the Termination Fee and Expenses payable pursuant to Section 5.06(b); or
(g) by the Company, if Merger Sub shall have failed to commence the Offer within the time period required by Section 1.01(a), unless the failure to satisfy any condition precedent contained in Section 1.01(a) resulted from a breach by the Company of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement (Cardinal Health Inc), Merger Agreement (Cardinal Health Inc), Merger Agreement (Viasys Healthcare Inc)
Termination. (1) This Agreement may be terminated and the Merger contemplated hereby Arrangement may be abandoned at any time prior to the Effective Time, Time (notwithstanding adoption thereof any approval of this Agreement or the Arrangement Resolution or the Arrangement by the StockholdersShareholders and/or the Court):
(i) by mutual written agreement of the Company, the Parent and the Purchaser;
(ii) by either the Company or the Purchaser, if:
(a) by mutual written consent of Parent and the Company;
(b) by Parent Effective Time shall not have occurred on or before the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderOutside Date, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, except that the right to terminate this Agreement pursuant to under this Section 8.1(b8.1(1)(ii)(a) shall not be available to any such Party whose failure (or, in the party seeking to terminate if such party or any case of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15Purchaser, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries the Purchaser or the Parent) to perform fulfill any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the principal cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableby such date;
(db) after the date hereof, there shall be enacted, issued, promulgated, made, enforced or amended any Law (which applicable Law shall have become final and non-appealable) that restrains, enjoins or otherwise prohibits the consummation of, or dissolves, the Arrangement; or
(c) the Arrangement Resolution shall have failed to receive the Requisite Shareholder Approval at the Company Meeting (including any adjournment or postponement thereof) in accordance with the Interim Order;
(iii) by the Company if there shall have been a breach of any representationPurchaser, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection if:
(a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to obtaining the earlier approval of the Arrangement Resolution by the Shareholders, (A) ten (10) Business Days following written notice the Board of such breach to Parent and Directors shall have effected a Change in Recommendation, (B) the Company Termination Date; provided shall have breached Section 7.2 in any material respect, or (C) the Purchaser requests in writing that the Board of Directors unconditionally reaffirm its Company Recommendation and the Board of Directors shall not have done so by the right earlier to terminate this Agreement pursuant occur of (x) the tenth business day following receipt of such request and (y) two business days prior to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this AgreementMeeting;
(eb) by Parent if there shall have been subject to Section 7.1(2), a breach of any representation, warranty, representation or warranty or failure to perform any covenant or agreement on the part of the Company contained set forth in this Agreement such shall have occurred that any condition would cause the conditions set forth in subsection Section 6.1 or Section 6.2 not to be satisfied at such time; provided that the Purchaser or the Parent is not then in breach of this Agreement so as to cause any of the conditions set forth in Section 6.1 or Section 6.3 not to be satisfied; or
(c) after the date hereof and prior to the Effective Time, a Company Material Adverse Change has occurred;
(iv) by the Company, if:
(a) or prior to obtaining the approval of the Arrangement Resolution by the Shareholders, the Board of Directors authorizes the Company, subject to complying with the terms of Section 7.2 and Section 7.3(2), to approve, accept and enter into a definitive agreement (other than a confidentiality agreement) with respect to a Superior Proposal;
(b) subject to Section 7.1(2), a breach of any representation or warranty or failure to perform any covenant or agreement on the part of any of the Purchaser or the Parent set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 7.2 would 6.1 or Section 6.3 not to be satisfied and, in either at such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Datetime; provided that Parent shall the Company is not have then in breach of this Agreement so as to cause any of the right conditions set forth in Section 6.1 or Section 6.2 not to be satisfied; or
(c) the Purchaser does not provide or cause to be provided the Depositary with sufficient funds to complete the Arrangement as required pursuant to Section 2.12.
(2) The Party desiring to terminate this Agreement pursuant to this Section 8.1(e8.1 (other than pursuant to Section 8.1(1)(i)) if Parent or Merger Sub is then in material breach shall give written notice of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior such termination to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentother Parties.
Appears in 3 contracts
Sources: Acquisition Agreement, Acquisition Agreement, Arrangement Agreement (Ym Biosciences Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after receipt of the StockholdersCompany Shareholder Approval:
(a) by mutual written consent of Parent and the Company;Company (upon the approval of the Special Committee); or
(b) by either Parent or the Company if any court of competent jurisdiction if:
(i) the Effective Time shall not have occurred on or other Governmental Entity having jurisdiction over before the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableEnd Date; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.01(b)(i) shall not be available to the any party seeking whose failure to terminate if such party or fulfill any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time other breach has been the a material cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date End Date; or
(ii) any Restraint having the effect set forth in Section 8.01(b) hereof shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 9.01(b)(ii) shall not be available to any party whose failure to fulfill any obligation under this Agreement or other breach has been a material cause of, or resulted in, if the issuance of such final, non-appealable Restraint; or
(iii) the Company Termination Date, as applicable;Shareholder Approval shall not have been obtained upon a vote held at the Company Shareholders’ Meeting or any adjournment thereof; or
(dc) by the Company if there shall have been Company:
(i) upon a breach by Parent or Merger Sub of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained set forth in this Agreement such that any condition the conditions set forth in subsection (aSection 8.03(a) or (bSection 8.03(b) of Section 7.3 would not be satisfied and, in either such case, prior to the End Date and such breach is would not curable be curable, or shall if capable of being cured, has not have been cured prior to within the earlier of (Ax) ten thirty (1030) Business Days following calendar days of the receipt by Parent of written notice thereof from the Company of such breach and (y) any shorter period of time that remains between the date the Company provides written notice of such breach to Parent and (B) the Company Termination End Date; provided provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.01(c)(i) if if, at the Company is then in material breach time of any of its covenants or agreements contained in this Agreement;
(e) by Parent if such termination, there shall have been exists a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition would result in the closing conditions set forth in subsection Section 8.02 not being satisfied; or
(aii) or if (bx) all of the conditions to closing contained in Section 7.2 would not 8.01 and Section 8.02 have been satisfied (other than those conditions that by their nature are to be satisfied andat the Closing (but subject to their satisfaction or waiver by the party having the benefit thereof)), in either such case, such breach is not curable or shall not have been cured prior and (y) Parent and Merger Sub fail to complete the earlier of (A) Closing within ten (10) Business Days following the date the Closing should have occurred pursuant to Section 2.02; provided, that the Company has delivered to Parent an irrevocable commitment in writing that it is ready, willing and able to consummate the Closing during such period; or
(iii) at any time prior to obtaining the Company Shareholder Approval, in order to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal in accordance with Section 7.03(d), provided that within five (5) Business Days after such termination, the Company pays the Termination Fee payable pursuant to Section 9.03(a); or
(iv) the Company Board (or the Special Committee) shall have made a Change in the Company Recommendation with respect to a Superior Proposal in accordance with Section 7.03(d), provided that within five (5) Business Days after such termination, the Company pays the Termination Fee payable pursuant to Section 9.03(a);
(d) by Parent:
(i) upon a breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement such that the conditions set forth in Section 8.02(a) or Section 8.02(b) would not be satisfied prior to the End Date and such breach would not be curable or, if capable of being cured, has not been cured within the earlier of (x) thirty (30) calendar days following receipt of written notice by the Company from Parent of such breach and (y) any shorter period of time that remains between the date Parent provides written notice of such breach to and the Company and (B) the Parent Termination End Date; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.01(d)(i) if if, at the time of such termination, there exists a breach of any representation, warranty, covenant or agreement of Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this AgreementAgreement that would result in the closing conditions set forth in Section 8.03 not being satisfied; or
(fii) by if the Company Board or any committee thereof shall have effected a Change in the Company Recommendation; or
(iii) if the Company Board shall have (v) failed to include the Company Recommendation in the Proxy Statement; (w) failed to publicly reaffirm the Company Recommendation within three Business Days after Parent at any time prior so requests in writing; (x) recommended to the date and time that shareholders of the Company Requisite Vote is obtained a Competing Transaction; or (y) failed to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction; or (z) entered into any letter of intent, memorandum of understanding or other document or Contract relating to any Competing Transaction (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 7.03(c)); or
(iv) if the Company shall have failed to hold the Company Shareholders’ Meeting in accordance with Section 7.02, and a copy failed to remedy such breach within thirty (30) calendar days following receipt of the written consent is delivered request by Parent; or
(v) if the Company shall have failed to comply with the no-shop undertakings set forth under Section 7.03(a) in any material respect, and failed to remedy such breach within thirty (30) calendar days following receipt of the written request by Parent.
Appears in 3 contracts
Sources: Merger Agreement (Cnshangquan E-Commerce Co., Ltd.), Merger Agreement (ChinaEquity USD Fund I L.P.), Merger Agreement (Mecox Lane LTD)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholdersas follows:
(a) by mutual written consent of Parent OAC and the Company;
(b) by Parent written notice by OAC to the Company, if any of the conditions to the Closing set forth in Article VII have not been satisfied or waived by March 12, 2018, assuming OAC receives the approval of its stockholders for the March 12, 2018, and if such approval has not been obtained, such earlier date as has been approved by OAC’s stockholders (the “Outside Date”); provided, however, the right to terminate this Agreement under this Section 8.1(b) shall not be available to OAC if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
(c) by written notice by the Company to OAC, if all of the conditions to the Closing set forth in Article VII have not been satisfied or waived by December 12, 2017 (the “Company Termination Date”); provided, however, the right to terminate this Agreement under this Section 8.1(c) shall not be available to the Company if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
(d) by written notice by either the Company or OAC to the other, if both the Nasdaq and other Acceptable Securities Exchanges advise either or both of the Company or OAC in writing that, for any reason or no reason, the listing of the OAC Shares on such stock exchanges at the Effective Time of the Merger will not be approved;
(e) by written notice by either OAC or the Company to the other, if any court a Governmental Authority of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling an Order or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger or the other transactions contemplated by this Agreement, and such order, decree, ruling Order or other action is or shall have has become final and nonappealablenon-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b8.1(d) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent a Party if the Merger shall not have been consummated on breach or before September 15violation by such Party or its Affiliates of any representation, 2008 (the “Parent Termination Date”)warranty, covenant or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been was the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch action by such Governmental Authority;
(df) by written notice by the Company to OAC, if (i) there shall have has been a breach of any representation, warranty, covenant or agreement on the part of Parent by OAC or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its their respective representations, warranties, covenants or agreements contained in this Agreement;
(e) by Parent , or if there any representation or warranty of OAC or Merger Sub shall have been become untrue or inaccurate, in any case, which would result in a breach failure of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any a condition set forth in subsection (aSection 7.2(a) or (bSection 7.2(b) of Section 7.2 would not to be satisfied and(treating the Closing Date for such purposes as the date of this Agreement or, in either if later, the date of such casebreach), such and (ii) the breach or inaccuracy is incapable of being cured or is not curable or shall not have been cured prior to within the earlier of (A) ten twenty (1020) Business Days following days after written notice of such breach to or inaccuracy is provided by the Company and or (B) the Parent Termination Outside Date; provided that Parent shall not have ;
(g) by written notice by OAC to the right to terminate this Agreement pursuant to this Section 8.1(eCompany, if (i) if Parent or Merger Sub is then in material there has been a breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of the Company shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided by OAC or (B) the Outside Date;
(h) by written notice by OAC to the Company, if there shall have been a Material Adverse Effect on the Target Companies, when taken as a whole, following the date of this Agreement which is uncured and continuing;
(i) by written notice by the Company to OAC, if there shall have been a Material Adverse Effect on OAC following the date of this Agreement which is uncured and continuing;
(j) by written notice by OAC to the Company, if (i) the Special Meeting is held and the Required OAC Stockholder Vote is not obtained at such meeting or (ii) the Extension Meeting (including any adjournments or postponements thereof) is held and shall have concluded and the Extension shall not have been approved; provided, that OAC shall not be permitted to terminate under this Section 8.1(i) if OAC has breached its obligations under Section 5.11(g) in any material respect;
(k) by written notice by either OAC or the Company to the other Party, if (i) the Company Stockholder Meeting is held and the Required Company Stockholder Approval is not obtained at such meeting or (ii) within thirty (30) days after the Registration Statement being declared effective by the SEC the Company Stockholder meeting has not been held and the Required Company Stockholder Approval has not been obtained by written consent of the Company’s stockholders in accordance with the requirements of Section 1.13 (provided, that the Company shall not be permitted to terminate under this Section 8.1(j) if the Company has breached its obligations under Section 1.13 in any material respect); or
(fl) by Parent at any time written notice by OAC to the Company, if (i) the Company shall not have delivered to OAC on or prior to the date and time that the Company Requisite Vote is obtained and a copy September 15, 2017 (A) duly executed copies of all of the written consent is Voting Agreements required to be delivered to Parentby Section 1.10 or (B) the Audited Financial Statements and the Post-Signing Unaudited Financial Statements, or (ii) if the Audited Financial Statements are materially different from the Unaudited Annual Financial Statements in an adverse manner, including any of the consolidated revenues, net income before taxes, or assets being more than ten percent (10%) less than the amounts set forth in the Unaudited Annual Financial Statements or the consolidated liabilities being more than ten percent (10%) greater than the amounts set forth in the Unaudited Annual Financial Statements.”
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Hightimes Holding Corp.), Merger Agreement (Origo Acquisition Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholdersany Stockholder Consents:
(a) by By mutual written consent of duly authorized by the Parent and the Board of Directors of the Company;
(b) by By either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30April 9, 2008 (the “Company Termination Date”); 2007 (; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b) shall not be available to the any party seeking whose willful failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations material obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time Merger to occur have been consummated on or before the such date;
(c) By either Parent Termination Date or the Company Termination DateCompany, as applicableif a Court or Governmental Authority shall have issued an Order or taken any other action, in each case which has become final and non appealable and which restrains, enjoins or otherwise prohibits the Merger;
(d) by By Parent, if the Stockholder Consents shall not have been obtained at or prior to the Effective Time;
(e) By Parent, if neither Parent nor Merger Sub is in material breach of its obligations under this Agreement, and if (i) at any time that any of the representations and warranties of the Company herein become untrue or inaccurate such that Section 7.2(a) would not be satisfied (treating such time as if it were the Effective Time for purposes of this Section 8.1(e)) or (ii) there shall have has been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this AgreementAgreement such that Section 7.2(b) would not be satisfied (treating such time as if it were the Effective Time for purposes of this Section 8.1(e)), and, in both case (i) and case (ii), such breach (if curable) has not been cured within 30 days after notice to the Company;
(ef) by By the Company, if it is not in material breach of its obligations under this Agreement, and if (i) at any time that any of the representations and warranties of Parent or Merger Sub herein become untrue or inaccurate such that Section 7.3(a) would not be satisfied (treating such time as if it were the Effective Time for purposes of this Section 8.1(f)) or (ii) there shall have has been a breach of any representation, warranty, covenant or agreement on the part of the Company Parent or Merger Sub of any of their respective covenants or agreements contained in this Agreement such that any condition set forth in subsection (aSection 7.3(b) or (b) of Section 7.2 would not be satisfied and(treating such time as if it were the Effective Time for purposes of this Section 8.1(f), in either such case, and such breach is (if curable) has not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written within 30 days after notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent; Termination of Agreement.
Appears in 3 contracts
Sources: Agreement and Plan of Merger, Agreement and Plan of Merger (Google Inc.), Agreement and Plan of Merger (Google Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by mutual written consent agreement of Parent the SPAC and the CompanyCompany at any time;
(b) by Parent either the Seller or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent SPAC if the Merger Closing shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or occurred by the Company if the Merger shall not have been consummated on or before September 30, 2008 2025 (or such later date as determined in accordance with Section 9.2, the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b) shall not be available to the party seeking any Party whose action or failure to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time act has been the a principal cause of, of or resulted in, in the failure of the Effective Time Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either the Parent Termination Date Seller or the Company Termination SPAC if a Governmental Entity shall have issued an Order, enacted, promulgated or enforced a Law or taken any other action, other than imposing any Sanctions, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Transactions, which Order, Law or other action is final and nonappealable; provided that neither party may terminate this Agreement under this Section 9.1(c) until the earlier of: (i) sixty (60) days after such Order, Law or other action is in effect; and (ii) the Outside Date, as applicable;
(d) by either the Company if there shall have been Seller or the SPAC, if, at the Special Meeting (including any postponement or adjournment thereof), the SPAC Shareholder Approval is not obtained;
(e) by the Seller, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement on the part of Parent the SPAC, or Merger Sub contained if any representation or warranty of the SPAC shall have become untrue, in this Agreement either case, such that any condition the conditions set forth in subsection (a) or (b) of Section 7.3 Article VIII would not be satisfied and, in either such case, as of the time of such breach or as of the time such representation or warranty shall have become untrue; provided that if such breach by the SPAC is not curable or shall not have been cured by the SPAC prior to the earlier of (A) ten (10) Business Days following Closing, then the Seller must first provide written notice of such breach to Parent the SPAC and may not terminate this Agreement under this Section 9.1(e) until the earlier of: (i) thirty (30) days after delivery of written notice from the Company to the SPAC of such breach; and (Bii) the Company Termination Outside Date; provided provided, further, that the SPAC continues to exercise commercially reasonable efforts to cure such breach (it being understood that the Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(e) if (A) the Company or the Seller shall have materially breached this Agreement and such breach has not been cured; or (B) such breach by the SPAC is then in material breach of any of its covenants or agreements contained in this Agreementcured within such 30-day period);
(ef) by Parent if there shall have been the SPAC, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement on the part of the Company contained Seller, the Company, New PubCo or Merger Sub or if any representation or warranty of the Seller, the Company, New PubCo or Merger Sub shall have become untrue, in this Agreement either case such that any condition the conditions set forth in subsection (a) or (b) of Section 7.2 Article VIII, would not be satisfied and, in either as of the time of such case, breach or as of the time such representation or warranty shall have become untrue; provided that if such breach is not curable by the Seller, the Company, New PubCo or shall not have been cured Merger Sub, as applicable, prior to the earlier of (A) ten (10) Business Days following Closing, then the SPAC must first provide written notice of such breach to the Company Seller and may not terminate this Agreement under this Section 9.1(f) until the earlier of: (i) thirty (30) days after delivery of written notice from the SPAC to the Seller of such breach; and (Bii) the Parent Termination Outside Date; provided provided, further, that Parent shall the Seller, the Company, New PubCo or Merger Sub, as applicable, continues to exercise commercially reasonable efforts to cure such breach (it being understood that the SPAC may not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(f) if Parent (A) it shall have materially breached this Agreement and such breach has not been cured; or (B) such breach by the Company, New PubCo or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; orcured within such 30-day period);
(fg) by Parent at the Seller, if the SPAC board of directors shall have publicly withdrawn, modified or changed, in any time manner that is adverse to the other Parties, its approval or SPAC Recommendation;
(h) by the SPAC, if a Sanctions Event occurs in respect of the Seller or a Group Company and either (i) such Sanctions Event is not resolved in accordance with Section 7.23 by the Outside Date or (ii) the SPAC determines in good faith on the advice of outside legal counsel that the failure to terminate this Agreement prior to the date Outside Date would or would reasonably be expected to result in any of the SPAC, the Sponsor or their respective directors or officers being subject to any monetary or criminal liability under applicable Law in connection with such Sanctions Event;
(i) by the Seller, if a Sanctions Event occurs in respect of the SPAC and time either (i) such Sanctions Event is not resolved in accordance with Section 7.23 by the Outside Date or (ii) the Seller determines in good faith on the advice of outside legal counsel that the Company Requisite Vote is obtained and a copy failure to terminate this Agreement prior to the Outside Date would or would reasonably be expected to result in any of the written consent is delivered Seller or a Group Company or their respective directors or officers being subject to Parentany monetary or criminal liability under applicable Law in connection with such Sanctions Event; and
(j) by the SPAC if the Company Parties fail to deliver the PCAOB Audited Financials for the year ended December 31, 2024, on or before June 30, 2025.
Appears in 3 contracts
Sources: Business Combination Agreement (VEON Ltd.), Business Combination Agreement (Cohen Circle Acquisition Corp. I), Business Combination Agreement (Cohen Circle Acquisition Corp. I)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeClosing Date, notwithstanding adoption thereof by the Stockholdersonly as follows:
(a) by the mutual written consent of Parent Merchants and the CompanyBDC;
(b) by Parent either of BDC or Merchants by written notice to the Company other:
(i) if the Agreement is not approved by the requisite vote of BDC’s shareholders at the meeting of shareholders contemplated in Section 6.02;
(ii) if any court Governmental Authority of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final an order, decree decree, judgment or ruling injunction or taken any other final action restrainingthat permanently restrains, enjoining enjoins or otherwise prohibiting prohibits or makes illegal the Merger consummation of the Merger, and such order, decree, ruling judgment, injunction or other action is or shall have become final and nonappealablenon-appealable or if any consent or approval of any Governmental Authority whose consent or approval is required to consummate the Merger has been denied and such denial has become final and non-appealable; providedor
(iii) if the consummation of the Merger shall not have occurred on or before June 30, however, 2017 (the “Outside Date”); provided that the right to terminate this Agreement pursuant to under this Section 8.1(b8.01(b)(iii) shall not be available to any party whose breach of any provision of this Agreement causes the party seeking failure of the Merger to terminate if such party occur on or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8before the Outside Date;
(c) by Parent if the Merger written notice from Merchants to BDC, if:
(i) any event shall have occurred which is not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available capable of being cured prior to the party seeking Outside Date and would result in any condition set forth in Section 7.01 not being satisfied prior to terminate if any action of such party the Outside Date;
(ii) BDC breaches or any of its Subsidiaries or the failure of such party or any of its Subsidiaries fails to perform any of its obligations under representations, warranties or covenants contained in this Agreement required Agreement, which breach or failure to be performed at or prior perform would give rise to the Effective Time has been the cause of, or resulted in, the failure of a condition set forth in Section 7.01, and such condition is incapable of being satisfied by the Outside Date or such breach has not been cured by BDC within 20 business days after BDC’s receipt of written notice of such breach from Merchants;
(iii) there has been a Material Adverse Effect on BDC on a consolidated basis as of the Effective Time to occur on or before the Parent Termination Date or the Company Termination DateTime, as applicablecompared to that in existence as of the date of this Agreement;
(iv) the BDC Board of Directors shall fail to include its recommendation to approve the Merger in the proxy statement;
(v) the BDC Board shall approve any BDC Acquisition Proposal or publicly recommend that the holders of BDC Common Stock accept or approve any BDC Acquisition Proposal; or
(vi) BDC shall have entered into, or publicly announced its intention to enter into, a definitive agreement, agreement in principle or letter of intent with respect to any BDC Acquisition Proposal.
(d) by the Company if there written notice from BDC to Merchants if:
(i) any event shall have been a breach occurred which is not capable of any representation, warranty, covenant or agreement on being cured prior to the part of Parent or Merger Sub contained Outside Date and would result in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would 7.02 not be being satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier Outside Date; or
(ii) Merchants breaches or fails to perform any of (A) ten (10) Business Days following its representations, warranties or covenants contained in this Agreement, which breach or failure to perform would give rise to the failure of a condition set forth in Section 7.02 and such condition is incapable of being satisfied by the Outside Date or such breach has not been cured by Merchants within 20 business days after Merchants’ receipt of written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentfrom BDC.
Appears in 3 contracts
Sources: Merger Agreement (Merchants Bancorp), Merger Agreement (Merchants Bancorp), Merger Agreement (Merchants Bancorp)
Termination. This Agreement may be terminated and the Company Merger contemplated hereby and the other Transactions may be abandoned at any time prior to the Company Merger Effective Time, notwithstanding adoption thereof by whether (except as expressly set forth below) before or after the StockholdersCompany Stockholder Approval or the Parent Shareholder Approval has been obtained:
(a) by mutual written consent of Parent the Company and the CompanyParent;
(b) by Parent or either the Company or Parent:
(i) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company any Party shall have issued a final any order, decree decree, ruling or ruling injunction or taken any other final action permanently restraining, enjoining or otherwise prohibiting the consummation of the Company Merger and such order, decree, ruling or injunction or other action is or shall have become final and nonappealable, or if there shall be adopted any Law that permanently makes consummation of the Company Merger illegal or otherwise permanently prohibited; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b8.1(b)(i) shall not be available to any Party whose failure to fulfill any covenant or agreement under this Agreement has been the party seeking to terminate if such party primary cause of or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with resulted in the action or event described in this Section 6.88.1(b)(i) occurring;
(cii) by Parent if the Company Merger shall not have been consummated on or before September 5:00 p.m. Houston, Texas time, on October 15, 2008 2023 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(ii) shall not be available to the party seeking any Party whose failure to terminate if fulfill any action of such party covenant or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations agreement under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, of or resulted in, in the failure of the Effective Time Company Merger to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(diii) in the event of a breach by the Company if there shall have been a breach other Party of any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement such that any which would give rise to the failure of a condition set forth in subsection (aSection 7.2(a) or 7.2(b) or Section 7.3(a) or 7.3(b), as applicable, if it was continuing as of the Closing (b) of Section 7.3 would not be satisfied and, in either such case, and such breach is not curable prior to the Outside Date, or shall if curable prior to the Outside Date, has not have been cured prior to by the earlier of (Ai) ten thirty (1030) days after the giving of written notice to the breaching Party of such breach and (ii) two (2) Business Days following written notice of such breach prior to Parent and the Outside Date) (B) the Company Termination Datea “Terminable Breach”); provided provided, however, that the Company shall terminating Party is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach Terminable Breach of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(fiv) if (A) the Company Stockholder Approval shall not have been obtained upon a vote held at a duly held Company Stockholders Meeting, or at any adjournment or postponement thereof, or (B) the Parent Shareholder Approval shall not have been obtained upon a vote at a duly held Parent Shareholder Meeting, or at any adjournment or postponement thereof;
(c) by Parent at any Parent:
(i) prior to, but not after, the time prior to the date and time that the Company Requisite Vote Stockholder Approval is obtained and obtained, if the Company Board or a copy committee thereof shall have effected a Company Change of Recommendation (whether or not such Company Change of Recommendation is permitted by this Agreement); or
(ii) if the written consent Company Support Agreement shall not have been delivered by the Company Class B Holders by the Support Agreement Deadline; and
(d) by the Company prior to, but not after, the time the Parent Shareholder Approval is delivered to Parentobtained, if the Parent Board or a committee thereof shall have effected a Parent Change of Recommendation (whether or not such Parent Change of Recommendation is permitted by this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Baytex Energy Corp.), Merger Agreement (Ranger Oil Corp), Merger Agreement (Ranger Oil Corp)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholdersabandoned:
(a) by mutual written consent of Parent the Company and the CompanyOmniLit;
(b) by Parent or written notice by either the Company or OmniLit if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Authority shall have issued a final orderenacted, decree issued, promulgated, enforced or ruling or taken entered any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have Governmental Order which has become final and nonappealablenon-appealable and has the effect of making consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger;
(c) by written notice by either the Company or OmniLit if the OmniLit Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the OmniLit Stockholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;
(d) by the Company or OmniLit by written notice to the other party if the consummation of the transactions contemplated by this Agreement shall not have occurred on or before nine (9) months after the date of this Agreement (the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b10.1(d) shall not be available to the either party seeking to terminate if such party or that has materially breached any of its Subsidiaries representations, warranties, covenants or agreements under this Agreement and such material breach is the primary cause of or has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if resulted in the failure of the Merger shall not have been to be consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreementdate;
(e) by Parent written notice to the Company from OmniLit if (i) there shall have been a is any breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, such that the conditions specified in Section 9.2(a), Section 9.2(b) or (bSection 9.2(d) of Section 7.2 would not be satisfied andat the Closing (a “Terminating Company Breach”), in either except that, other than with respect to Section 9.2(d) which cannot be cured, if such caseTerminating Company Breach is curable by the Company through the exercise of its reasonable best efforts, then, for a period of up to 30 days (or such breach is not curable or shall not have been cured prior to shorter period of time that remains between the earlier of (A) ten (10) Business Days following date OmniLit provides written notice of such breach to and the Agreement End Date) after receipt by the Company of notice from OmniLit of such breach, but only as long as the Company continues to use its reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, or (Bii) the Parent Termination Date; provided that Parent shall Closing has not have occurred on or before nine (9) months after the right to terminate date of this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub (the “Agreement End Date”), unless OmniLit is then in material breach of any of its covenants hereof so as to prevent the conditions specified in Section 9.2(a) or agreements contained in this Agreement; orSection 9.2(b) from being satisfied;
(f) by Parent at any time prior written notice to the date Company from OmniLit if the Company Stockholder Approvals shall not have been obtained and delivered to OmniLit within five (5) Business Days after the Registration Statement has been declared effective by the SEC and delivered or otherwise made available to stockholders;
(g) by written notice to OmniLit from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of OmniLit or Merger Sub set forth in this Agreement, such that the conditions specified in Section 9.3(a) and Section 9.3(b) would not be satisfied at the Closing (a “Terminating OmniLit Breach”), except that, if any such Terminating OmniLit Breach is curable by OmniLit through the exercise of its reasonable best efforts, then, for a period of up to 30 days (or such shorter period of time that remains between the date the Company Requisite Vote provides written notice of such breach and the Agreement End Date) after receipt by OmniLit of notice from the Company of such breach, but only as long as OmniLit continues to exercise such reasonable best efforts to cure such Terminating OmniLit Breach (the “OmniLit Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating OmniLit Breach is obtained and not cured within the OmniLit Cure Period or (ii) the Closing has not occurred on or before the Agreement End Date, unless the Company is in material breach hereof so as to prevent the conditions specified in Section 9.2(a) or Section 9.2(b) from being satisfied; or
(h) by written notice to OmniLit from the Company following a copy of the written consent is delivered to ParentModification in Recommendation.
Appears in 3 contracts
Sources: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by mutual written consent agreement of Parent and the Company, the Bank and Purchaser;
(b) by Parent or Purchaser, upon written notice to the Company if any court of competent jurisdiction and the Bank, or other Governmental Entity having jurisdiction over by the Company shall have issued a final orderCompany, decree upon written notice to Purchaser, in the event that the Closing Date does not occur on or ruling or taken any other final action restraining, enjoining or otherwise prohibiting before the Merger and such order, decree, ruling or other action date that is or shall have become final and nonappealable180 calendar days from the date hereof; provided, however, that the right respective rights to terminate this Agreement pursuant to this Section 8.1(b5.1(b) shall not be available to any party whose failure (or, in the party seeking to terminate if such party or any case of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15Company, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or the Bank) to fulfill any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has shall have been the cause of, or shall have resulted in, the failure of the Effective Time Closing Date to occur on or before the Parent Termination Date or prior to such date;
(c) by the Company Termination Dateor Purchaser, as applicableupon written notice to the other, in the event that any Governmental Entity shall have issued any order, decree or injunction or taken any other action restraining, enjoining or prohibiting any of the transactions contemplated by this Agreement, and such order, decree, injunction or other action shall have become final and nonappealable;
(d) by Purchaser, if Purchaser or any of its Affiliates receives written notice from or is otherwise advised by a Governmental Entity that it will not grant (or intends to rescind or revoke if previously approved) any Required Approval or receives written notice from such Governmental Entity that it will not grant such Required Approval on the terms contemplated by this Agreement without imposing any Burdensome Condition, provided that, prior to terminating this Agreement, Purchaser shall have used reasonable efforts to obtain such Required Approval without the imposition of such Burdensome Condition;
(e) by the Company, if neither the Company if nor the Bank is in material breach of any of the terms of this Agreement, and there shall have has been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained made by Purchaser in this Agreement Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any the condition set forth in subsection (aSection 1.2(c)(3)(A) or (bB) of Section 7.3 would not be satisfied and, in either such case, and such breach is not curable or shall or, if curable, is not have been cured prior to the earlier of within thirty (A30) ten (10) Business Days following days after written notice of such breach to Parent and (B) thereof is given by the Company Termination Date; provided that the Company shall to Purchaser;
(f) by Purchaser, if Purchaser is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in the terms of this Agreement;
(e) by Parent if , and there shall have has been a breach of any representation, warranty, covenant or agreement on the part of made by the Company contained or the Bank in this Agreement Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any the condition set forth in subsection (aSection 1.2(c)(2)(A) or (bB) of Section 7.2 would not be satisfied and, in either such case, and such breach is not curable or shall or, if curable, is not have been cured prior to the earlier of within thirty (A30) ten (10) Business Days following days after written notice of such breach thereof is given by Purchaser to the Company and the Bank (Bg) by Purchaser, if the Parent Termination Date; provided that Parent Company or the Bank shall not have breached the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in Section 3.4 hereof or the Company’s Board of Directors shall have recommended or publicly announced its intention to recommend any Acquisition Proposal in accordance with Section 3.4(c) of this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.and
Appears in 3 contracts
Sources: Investment Agreement (North American Financial Holdings, Inc.), Investment Agreement (North American Financial Holdings, Inc.), Investment Agreement (Tib Financial Corp.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding Time whether before or after adoption thereof of this Agreement by the Stockholdersstockholders of the Company or the sole member of Merger Sub, as applicable:
(a) by mutual written consent of Parent the Company and the CompanyParent;
(b) by Parent or either the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;Parent:
(ci) by Parent if the Merger shall not have been consummated on or before September 15by March 31, 2008 2006 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c7.1(b)(i) shall not be available to the any party seeking whose willful breach of a representation or warranty or failure to terminate if fulfill any action of such party covenant or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under agreement contained in this Agreement required to be performed at or prior to the Effective Time has been the a principal cause of, or resulted in, the failure of the Effective Time Merger to occur be consummated on or before by such date; and provided, further, that if the Parent Information Statement/Prospectus has been mailed to stockholders prior to March 31, 2006, then the Termination Date shall be extended to April 30, 2006;
(ii) if any Judgment having any of the effects set forth in Section 6.1(a) shall be in effect and shall have become final and nonappealable.
(c) by Parent, if Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the Company failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (ii) is incapable of being cured, or is not cured, by the Termination Date, as applicable;provided that Parent shall have given the Company written notice of such breach or failure to perform at least ten (10) business days prior to such termination; or
(d) by the Company Company, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement such that any Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in subsection (aSection 6.3(a) or Section 6.3(b) and (bii) is incapable of Section 7.3 would not be satisfied andbeing cured, in either such case, such breach or is not curable or cured, by the Termination Date, provided that the Company shall not have been cured prior to the earlier of (A) ten (10) Business Days following given Parent written notice of such breach or failure to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) perform at least ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time business days prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentsuch termination.
Appears in 3 contracts
Sources: Merger Agreement (Micro Investment LLC), Merger Agreement (Micro Therapeutics Inc), Merger Agreement (Ev3 Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby Mergers and the other Transactions may be abandoned at any time prior to the Company Merger Effective Time, notwithstanding adoption thereof by whether (except as expressly set forth below) before or after the StockholdersFirefly Stockholder Approval or the Ohm Stockholder Approval has been obtained:
(a) by mutual written consent of Parent Firefly and the CompanyOhm;
(b) by Parent either Firefly or the Company Ohm:
(i) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company any Party shall have issued a final any order, decree decree, ruling or ruling injunction or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger consummation of any of the Mergers and such order, decree, ruling or injunction or other action is or shall have become final and nonappealable, or if there shall be adopted any Law that permanently makes consummation of any of the Mergers illegal or otherwise permanently prohibited; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b8.1(b)(i) shall not be available to any Party whose failure to fulfill any covenant or agreement under this Agreement has been the party seeking to terminate if such party primary cause of or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with resulted in the action or event described in this Section 6.88.1(b)(i) occurring;
(cii) by Parent if the Merger Mergers shall not have been consummated on or before September 155:00 p.m. Houston, 2008 Texas time, on October 7, 2022 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(ii) shall not be available to the party seeking any Party whose failure to terminate if fulfill any action of such party covenant or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations agreement under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, of or resulted in, in the failure of the Effective Time Mergers to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(diii) in the event of a breach by the Company if there shall have been a breach other Party of any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement such that any which would give rise to the failure of a condition set forth in subsection (aSection 7.2(a) or 7.2(b) or Section 7.3(a) or 7.3(b), as applicable, if it was continuing as of the Closing (b) of Section 7.3 would not be satisfied and, in either such case, and such breach is not curable prior to the Outside Date, or shall if curable prior to the Outside Date, has not have been cured prior to by the earlier of (Ai) ten thirty (1030) days after the giving of written notice to the breaching Party of such breach and (ii) two (2) Business Days following written notice of such breach prior to Parent and the Outside Date) (B) the Company Termination Datea “Terminable Breach”); provided provided, however, that the Company shall terminating Party is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach Terminable Breach of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection Agreement;
(aiv) or if (bA) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or the Firefly Stockholder Approval shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and obtained upon a vote held at a duly held Firefly Stockholders Meeting, or (B) the Parent Termination Date; provided that Parent Ohm Stockholder Approval shall not have been obtained upon a vote at a duly held Ohm Stockholders Meeting;
(c) by Ohm, prior to, but not after, the right to terminate this Agreement pursuant to this Section 8.1(e) time the Firefly Stockholder Approval is obtained, if Parent the Firefly Board or Merger Sub a committee thereof shall have effected a Firefly Change of Recommendation (whether or not such Firefly Change of Recommendation is then in material breach of any of its covenants or agreements contained in permitted by this Agreement); orand
(fd) by Parent at any Firefly, prior to, but not after, the time prior to the date and time that Ohm Stockholder Approval is obtained, if the Company Requisite Vote Ohm Board or a committee thereof shall have effected an Ohm Change of Recommendation (whether or not such Ohm Change of Recommendation is obtained and a copy of the written consent is delivered to Parentpermitted by this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Oasis Petroleum Inc.), Merger Agreement (Whiting Petroleum Corp), Merger Agreement (Oasis Petroleum Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after receipt of the StockholdersCompany Shareholder Approval:
(a) by mutual written consent of Parent, Merger Sub and the Company, duly authorized by the Boards of Directors of Parent and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;Company:
(ci) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 2006 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(i) shall not be available to the any party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of who has breached its obligations under this Agreement required to be performed at or prior to the Effective Time in any material respect, provided that such breach has been the a principal cause of, or resulted in, the failure of the Effective Time Merger to occur be consummated on or before such date;
(ii) if any Law shall have been enacted, entered, enforced or deemed applicable to the Merger by a Governmental Entity that makes the consummation of the Merger illegal in the U.S. or any foreign jurisdiction in which Parent Termination Date or the Company has substantial business and operations;
(iii) if any Governmental Entity in the U.S. or foreign jurisdiction in which Parent or the Company has substantial business and operations shall have issued or granted any Order making the Merger illegal in the U.S. or any such foreign jurisdiction and such Order has become final and non-appealable; or
(iv) if the Company Shareholder Approval shall not have been obtained at the Company Shareholder Meeting duly convened therefor or at any adjournment or postponement thereof;
(c) by Parent (provided it is not then in material breach of any of its obligations under this Agreement), if there is any continuing inaccuracy in the representations and warranties of the Company set forth in this Agreement, or the Company is then failing to perform any of its covenants or other agreements set forth in this Agreement, in either case (i) such that the conditions to Parent’s obligation to effect the Merger set forth in Section 7.2(a) or Section 7.2(b) would fail to be satisfied at the time of such termination and (ii) such inaccuracy or breach is not reasonably capable of being cured by the Company prior to the Termination Date, as applicable;
(d) by the Company if there shall have been a (provided it is not then in material breach of any representationof its obligations under this Agreement), warrantyif there is any continuing inaccuracy in the representations and warranties of Parent and Merger Sub set forth in this Agreement, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that are then failing to perform any condition of their respective covenants or other agreements set forth in subsection (a) or (b) of Section 7.3 would not be satisfied andthis Agreement, in either case (i) such case, that the conditions to the Company’s obligation to effect the Merger set forth in Section 7.3(a) or Section 7.3(b) would fail to be satisfied at the time of such termination and (ii) such inaccuracy or breach is not curable or shall not have been reasonably capable of being cured by Parent and Merger Sub prior to the earlier Termination Date;
(e) by Parent, if a Company Adverse Recommendation Change shall have occurred and be continuing, or if the Board of (A) Directors of the Company shall have failed to publicly reaffirm its recommendation of this Agreement and the Merger within ten (10) Business Days following written notice the date upon which a third party first commences a tender or exchange offer for shares of Company capital stock;
(f) by the Company pursuant to and in accordance with the terms and subject to the conditions of Section 6.4(c), provided that not later than the day of such breach termination, Parent has received the Termination Fee set forth in Section 8.3;
(g) by Parent, if there has occurred a Company Material Adverse Effect due to the occurrence of any of the events described in the Company MAE Proviso; provided, however, that, prior to the termination of this Agreement pursuant to this Section 8.1(g), Parent shall, in good faith, (i) discuss with the Company: (x) the occurrence of the events upon which Parent is terminating this Agreement pursuant to this Section 8.1(g), and (By) the Company Termination Date; provided that impact of such events on the future operations of Parent, the Company and their Subsidiaries and the benefits that are expected to derive from the Merger and the other transactions contemplated by this Agreement, and (ii) after such discussions, determine in good faith that such events materially and adversely affect, in the sole judgment of Parent, the benefits that are expected to derive from the Merger and the other transactions contemplated by this Agreement; provided, further, however, that such discussions (and the obligation to have such discussions in good faith) and the determination made thereafter by Parent (including the obligation to make such determination in good faith) shall not have (A) limit the right of Parent to terminate this Agreement pursuant to this Section 8.1(d8.1(g), or (B) create any legally binding obligations on Parent with respect to the consummation of the transactions contemplated by this Agreement; or
(h) by the Company, if there has occurred a Parent Material Adverse Effect due to the occurrence of any of the events described in the Parent MAE Proviso; provided, however, that, prior to the termination of this Agreement pursuant to this Section 8.1(h), the Company shall, in good faith, (i) discuss with Parent: (x) the occurrence of the events upon which the Company is then in material breach terminating this Agreement pursuant to this Section 8.1(h), and (y) the impact of any such events on the future operations of its covenants or agreements contained in the Parent, the Company and their Subsidiaries and the benefits that are expected to derive from the Merger and the other transactions contemplated by this Agreement;
, and (eii) after such discussions, determine in good faith that such events materially and adversely affect, in the sole judgment of the Company, the benefits that are expected to derive from the Merger and the other transactions contemplated by Parent if there this Agreement provided, further, however, that such discussions (and the obligation to have such discussions in good faith) and the determination made thereafter by the Company (including the obligation to make such determination in good faith) shall have been a breach of any representation, warranty, covenant or agreement on not (A) limit the part right of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e8.1(h), or (B) if Parent or Merger Sub is then in material breach create any legally binding obligations on the Company with respect to the consummation of any of its covenants or agreements contained in the transactions contemplated by this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Pixar \Ca\), Merger Agreement (Walt Disney Co/)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, Time (notwithstanding adoption thereof any approval of this Agreement by the Stockholders:stockholders of the Company):
(a) by mutual written consent agreement of Parent the Company and the CompanyParent;
(b) by Parent or either the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderParent, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting if:
(i) the Merger and such orderhas not been consummated on or before December 31, decree, ruling or other action is or shall have become final and nonappealable2007 (the “End Date”); provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(b10.01(b)(i) shall not be available to any party whose breach of any provision of this Agreement results in the party seeking failure of the Merger to terminate if be consummated by such party time;
(ii) there shall be any Applicable Law that (A) makes consummation of the Merger illegal or otherwise prohibited or (B) enjoins the Company or Parent from consummating the Merger and such enjoinment shall have become final and nonappealable; or
(iii) at the Company Stockholder Meeting (including any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;adjournment or postponement thereof), the Company Stockholder Approval shall not have been obtained; or
(c) by Parent, if:
(i) (A) as permitted by Section 6.03, an Adverse Recommendation Change shall have occurred or (B) the Board of Directors of the Company shall have failed to publicly confirm the Company Board Recommendation within ten Business Days of a written request made by Parent if following an Acquisition Proposal that it do so;
(ii) a breach of any representation or warranty or failure to perform any covenant or agreement on the Merger part of the Company set forth in this Agreement shall have occurred that would cause the condition set forth in Section 9.02(a) not have been consummated on or before September 15to be satisfied, 2008 (the “Parent Termination Date”), or and such condition is incapable of being satisfied by the End Date; or
(iii) the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform willfully and materially breached any of its obligations under this Agreement required to be performed at Section 6.02 or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;Section 6.03; or
(d) by the Company if there if:
(i) the Board of Directors of the Company authorizes the Company, subject to complying with the terms of this Agreement, to enter into a written agreement concerning a Superior Proposal; provided that the Company shall have been paid any amounts due pursuant to Section 11.04(b) in accordance with the terms, and at the times, specified therein; and provided, further, that, prior to any such termination, (A) the Company notifies Parent in writing of its intention to terminate this Agreement and to enter into a binding written agreement concerning an Acquisition Proposal that constitutes a Superior Proposal, attaching the most current version of such agreement (or a description of all material terms and conditions thereof), and (B) Parent does not make, within five Business Days of receipt of such written notification, an offer that is at least as favorable to the stockholders of the Company as such Superior Proposal (it being understood that the Company shall not terminate this Agreement or enter into any such binding agreement during such five Business Day period, and that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new written notification from the Company and an additional three Business Day period); or
(ii) a breach of any representation, warranty, representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub contained Subsidiary set forth in this Agreement such shall have occurred that any would cause the condition set forth in subsection (aSection 9.03(a) or (bSection 9.03(b) not to be satisfied, and such condition is incapable of Section 7.3 would not be being satisfied and, in either such case, such breach is not curable or shall not have been cured prior to by the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination End Date; provided that the Company shall not have the right . The party desiring to terminate this Agreement pursuant to this Section 8.1(d10.01 (other than pursuant to Section 10.01(a)) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written give notice of such breach termination to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentother party.
Appears in 3 contracts
Sources: Merger Agreement (Playtex Products Inc), Merger Agreement (Energizer Holdings Inc), Merger Agreement (Energizer Holdings Inc)
Termination. This Despite anything in this Agreement to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be Transactions abandoned at any time prior to before the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by mutual written consent of Parent and Company, duly authorized by Parent and by the board of directors of Company;
(b) by either Parent or Company (provided that the Company terminating party is not then in material breach of any representation, warranty, covenant, or agreement contained in this Agreement) if (i) there has been a material breach by the non-terminating party of any representation, warranty, covenant, or agreement as set forth in the Agreement that results in the closing conditions in Article VII in the terminating party’s favor not being capable of being met by the date set forth in Section 9.1(c) below or (ii) if any court representation or warranty of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action non-terminating party is or shall have become final and nonappealablehas been untrue or inaccurate such that, in the aggregate, such untruths or inaccuracies would result, or reasonably be expected to result, in a Company Material Adverse Effect or a material adverse effect on a party’s ability to consummate the Transactions; provided, however, that the right to terminate if in each case such breach is curable, then this Agreement pursuant to may not be terminated under this Section 8.1(b9.1(b) shall not be available until the earlier of (i) 30 days after delivery of written notice of such untruth or inaccuracy or breach, or (ii) the date on which the non-terminating party ceases to the party seeking exercise commercially reasonable efforts to terminate if cure such party untruth or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8inaccuracy or breach;
(c) by either Parent or Company if the Merger shall has not have been consummated on or before September 15the date which is 180 days following the termination or expiration of all statutory waiting periods (and any extension thereof) applicable to the Merger under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, 2008 as amended (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c) shall 9.1 will not be available to the any party seeking whose action or failure to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time act has been the principal cause of, of or resulted in, in the failure of the Effective Time Merger to occur have been consummated on or before the Parent Termination Date such date and such action or the Company Termination Date, as applicable;
(d) by the Company if there shall have been failure to act constitutes a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(fd) by either Parent at or Company if any time prior permanent injunction or other order of a court or other competent authority preventing the Merger will have become final and not subject to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.appeal;
Appears in 2 contracts
Sources: Merger Agreement (Flow International Corp), Merger Agreement (Flow International Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by By the mutual written consent of the Boards of Directors of Parent and the Company;
(b) by By Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a final judicial or regulatory determination (as to which all periods for appeal shall have expired and no appeal shall be pending) that any material provision of this Agreement is illegal, invalid or unenforceable (unless the enforcement thereof is waived by the affected party) or denying any regulatory application the approval of which is a condition precedent to a party’s obligations hereunder;
(c) By Parent or Company before the date specified in 7.1(h) hereof, in the event that any of the conditions precedent to the obligations of the other party to the Merger are rendered impossible to be satisfied or fulfilled by said date (other than by reason of a breach by the party seeking to terminate);
(d) By Parent or Company at any time after the shareholders of Company or Parent fail to approve this Agreement and the Merger by the necessary vote at the Company Shareholders’ Meeting or the Parent Shareholders’ Meeting;
(e) By Parent or Company, in the event of a material breach by the other party of any representation, warranty, covenant or agreement on contained herein or in any schedule or document delivered pursuant hereto, which breach would result in the part of Parent or Merger Sub contained in this Agreement such that any failure to satisfy the closing condition set forth in subsection Section 6.2(a), (ab), or (d) – (l) in the case of Parent, or Section 6.3(a), (b) or (bd) – (h) in the case of Section 7.3 would Company, and which breach cannot be satisfied and, in either such case, such breach or is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following within 45 days after written notice of such breach is given by the non-breaching party to the party committing such breach; or
(f) By Company, upon its written notice to Parent and within the two (B2) business days following the Company Termination Date; provided that Determination Date (as defined below), in the Company shall event of all of the following:
(1) Parent does not have the right to terminate this Agreement pursuant to this Section 8.1(d7.1(e) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by , or Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have has the right to terminate this Agreement pursuant to Section 7.1(e) of this Section 8.1(eAgreement and does not exercise such right;
(2) if The Parent or Merger Sub Determination Price (as defined below) on the Determination Date is less than $8.66; and
(3) (a) the number obtained by dividing the Parent Determination Price by $10.19 (the “Parent Change Ratio”) is less than (b) the number obtained by dividing the Final Index Price (as defined below) by the Initial Index Price (as defined below) and then in material breach of any of its covenants or agreements contained multiplying the quotient in this Agreement; or
(fclause 3(b) by Parent at any time prior to 0.85 (the date “Negative Index Change Ratio”). For purposes of Sections 7.1(f) and time that (g), the Company Requisite Vote is obtained and a copy of following terms have the written consent is delivered to Parent.meanings indicated below:
Appears in 2 contracts
Sources: Reorganization Agreement and Plan of Merger (Central Valley Community Bancorp), Reorganization Agreement and Plan of Merger (Service 1st Bancorp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof except to the extent otherwise set forth below, whether before or after receipt of the Company Stockholder Approval, with any termination by the StockholdersParent also being an effective termination by Merger Sub:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;Company:
(ci) by Parent if the Merger shall not have been consummated on or before September 15, 2008 12 months after the date hereof (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.01(b)(i) shall not be available to the any party seeking to terminate if whose breach of any action provision of such party or any of its Subsidiaries or this Agreement resulted in the failure of the Merger to be consummated on or before such date;
(ii) if any Restraint having the effect of permanently restraining, enjoining, or otherwise prohibiting the Merger and the transactions contemplated by this Agreement shall be in effect and shall have become final and nonappealable; provided that the right to terminate this Agreement under this Section 8.01(b)(ii) shall not be available to any party that has not used its reasonable best efforts to contest, appeal and remove such Restraint; or
(iii) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting (as such Company Stockholders Meeting may be adjourned or postponed from time to time) duly convened therefor;
(c) by Parent, if there is any breach or inaccuracy of any of its Subsidiaries the representations or warranties set forth in Article III or if the Company shall have breached or failed to perform any of its obligations under covenants or agreements set forth in this Agreement required Agreement, which breach, inaccuracy or failure to be performed at or prior perform (i) would give rise to the Effective Time has been the cause of, or resulted in, the failure of a condition set forth in Sections 7.01 or 7.02 and (ii) is incapable of being cured, or is not cured (in each case, to the Effective Time extent necessary to occur on satisfy the applicable condition set forth in Sections 7.01 or before the Parent Termination Date or 7.02), by the Company Termination Datewithin 30 days following receipt of written notice from Parent of such breach, as applicableinaccuracy or failure to perform;
(d) by the Company Company, if there shall have been a is any breach or inaccuracy of any representation, warranty, covenant of the representations or agreement on the part of warranties set forth in Article IV or if Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) shall have breached or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior failed to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of perform any of its covenants or agreements contained set forth in this Agreement, which breach, inaccuracy or failure to perform (i) would give rise to the failure of a condition set forth in Sections 7.01 or 7.03 and (ii) is incapable of being cured, or is not cured (in each case, to the extent necessary to satisfy the applicable condition set forth in Sections 7.01 or 7.03) by Parent within 30 days following receipt of written notice from the Company of such breach, inaccuracy or failure to perform;
(e) by Parent Parent, at any time prior to the receipt of the Company Stockholder Approval, if there (i) the Board of Directors of the Company shall have effected a Company Change of Recommendation or failed to reaffirm the Company Recommendation within ten business days after (x) a Company Competing Proposal shall have been made public (or any person shall have publicly announced a breach bona fide intention, whether or not conditional, to make a Company Competing Proposal) and (y) the receipt of any representation, warranty, covenant a written request to do so from Parent or agreement on the part of (ii) the Company contained in this Agreement such that any condition set forth in subsection (a) shall have materially breached its obligations under Section 5.03 or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement6.01(b); or
(f) by Parent the Company, at any time prior to the date and time that receipt of the Company Requisite Vote Stockholder Approval, if the Company is obtained simultaneously entering into a definitive agreement to effect a Superior Proposal; provided, that in order for the termination of this Agreement pursuant to this Section 8.01(f) to be effective, (i) the Company and a copy its Board of Directors shall have complied with the procedures and obligations set forth in Section 5.03(d) with respect to such Superior Proposal and (ii) the Company shall have paid the Company Termination Fee in accordance with Section 8.02. A party desiring to terminate this Agreement pursuant to clause (b), (c), (d), (e) or (f) of this Section 8.01 shall give written consent notice of such termination to the other party in accordance with Section 9.02, specifying the provision or provisions hereof pursuant to which such termination is delivered to Parenteffected.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Hertz Global Holdings Inc)
Termination. This Agreement may be terminated terminated, and the Merger contemplated hereby may be abandoned abandoned, at any time prior to the Effective Time, notwithstanding whether before or after the adoption thereof of this Agreement by the Stockholders:holders of the Company Common Stock or the Parent Common Stock, in each case by written notice of the terminating party to the other(s):
(a) by mutual written consent of Parent Parent, Merger Sub and the Company;
(b) by either Parent and Merger Sub or by the Company:
(i) if, upon a vote at a duly held meeting of stockholders or any adjournment thereof, any required approval of the holders of the Company if Common Stock (including any court required approval of competent jurisdiction or other Governmental Entity having jurisdiction over any class of the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(bCommon Stock) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8have been obtained;
(cii) by Parent if the Merger shall not have been consummated on or before September 15July 31, 2008 (2002, unless the “Parent Termination Date”), or failure to consummate the Merger is the result of a willful and material breach of this Agreement by the Company party seeking to terminate this Agreement;
(iii) if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued a nonappealable final order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, provided that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(b)(iii) shall not be available to the any party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of who has not complied with its obligations under this Agreement required to be performed at or prior Section 6.9 and such noncompliance materially contributed to the Effective Time has been the cause ofissuance of any such order, decree or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date ruling or the Company Termination Date, as applicabletaking of such action);
(div) in the event of a material breach by the Company if there shall have been other party of any representation, warranty, covenant or other agreement contained in this Agreement (a "TERMINATING BREACH") (provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied andAgreement); provided that, in either the case of a covenant or agreement, if such caseTerminating Breach is curable by the Company or Parent, as the case may be, through the exercise of its reasonable efforts and for so long as the Company or Parent, as the case may be, continues to exercise such breach reasonable efforts, neither Parent nor the Company, respectively, may terminate this Agreement under this Section 7.1(b)(iv) unless such Terminating Breach is not curable cured within 15 days after the giving of written notice to the Company or Parent, as applicable; or
(v) if, upon a vote at a duly held meeting of stockholders or any adjournment thereof, any required approval of the holders of the Parent Common Stock shall not have been cured prior obtained;
(c) notwithstanding the other provisions of this Section 7.1, as provided in Section 7.2(d);
(d) by Parent if the Company Board shall have recommended to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) Company's stockholders a Superior Proposal; or the Company Termination DateBoard shall have withdrawn or, in a manner adverse to Parent, modified its recommendation of this Agreement or the Merger; provided that any disclosure that the Company Board is compelled to make of the receipt of a proposal for a Third Party Acquisition in order to comply with Rule 14d-9 or 14e-2 shall not have in and of itself constitute the right withdrawal or modification of the Company Board's recommendation, provided that such disclosure states that no action will be taken by the Company Board with respect to the withdrawal or modification of its recommendation of the transactions contemplated hereby or the approval or recommendation of any Third Party Acquisition except in accordance with Section 5.2(b);
(e) by the Company if the Company Board has received a Superior Proposal, the Company Board determines in its good faith judgment, after consultation with and advice from outside legal counsel, that it is necessary to do so in order to comply with its fiduciary duties, withdraws or, in a manner adverse to Parent, modifies its recommendation of the transactions contemplated by this Agreement or approves or recommends such Superior Proposal, and the Company Board has complied with all other provisions of Section 5.2(b) and Section 7.2(a); and
(f) by the Company if the Stock Value is less than the Floor Price, unless within three (3) business days after the giving of notice to Parent by the Company of the Company's election to terminate this Agreement pursuant to this Section 8.1(d7.1(f) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) Parent elects, by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) to establish the Parent Termination Date; provided that Parent shall not have Adjusted Cash Amount or the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent Adjusted Exchange Ratio, or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time a combination thereof, so that the Company Requisite Vote is obtained amount of cash and a copy of Parent Common Stock (valued at the written consent is delivered to ParentStock Value) constituting the Merger Consideration shall equal not less than $38.21.
Appears in 2 contracts
Sources: Merger Agreement (Beazer Homes Usa Inc), Merger Agreement (Beazer Homes Usa Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transaction may be abandoned at any time prior to the Effective Time (notwithstanding any approval of the Special Resolution by Unitholders) and, for greater certainty, may not be terminated following the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by mutual written consent of Parent CanWest and Fund duly authorized by the board of directors of CanWest and the CompanyFund Board;
(b) by Parent either CanWest or Fund if the Company if any court of competent jurisdiction Effective Time shall not have occurred on or other Governmental Entity having jurisdiction over before the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableOutside Date; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b6.1(b) shall not be available to the party seeking any Party whose failure to terminate if such party fulfill any representation, warranty, obligation, covenant or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate agreement set forth in this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any or other action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date;
(c) by either CanWest or Fund if any Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Law which is then in effect and has the Parent Termination Date effect of making the Transaction illegal or otherwise preventing or prohibiting the Company Termination Date, as applicableconsummation of the Transaction;
(d) by either CanWest or Fund if Unitholder Approval is not obtained at the Company Meeting or at any adjournment or postponement thereof;
(e) by CanWest if the Fund Board fails to recommend the Special Resolution, withdraws or modifies in a manner adverse to CanWest, General Partner or Limited Partnership its approval or recommendation of the Special Resolution, this Agreement or the Transaction or shall fail to reaffirm such approval or recommendation within three Business Days of receipt of any written request to do so by CanWest;
(f) by CanWest if there shall have occurred or exist a Material Adverse Effect or if Limited Partnership shall have determined, acting reasonably and based on the opinion of counsel, that the SIFT Proposals will apply to Fund so as to result in additional tax payable by Fund prior to January 1, 2011;
(g) by CanWest, if there has been a breach of or failure to perform any representation, warranty, obligation, covenant or agreement on the part of Parent Fund or Merger Sub contained in this Agreement such that any condition Trust set forth in subsection (a) this Agreement, which breach or (b) of failure to perform would cause the conditions set forth in Section 7.3 would 5.2 not to be satisfied and, in either such case, such breach is not curable on or shall not have been cured prior to by the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Outside Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;or
(eh) by Parent Fund, if there shall have has been a breach of or failure to perform any representation, warranty, obligation, covenant or agreement on the part of the Company contained in this Agreement such that any condition CanWest, General Partner or Limited Partnership set forth in subsection (a) this Agreement, which breach or (b) of failure to perform would cause the conditions set forth in Section 7.2 would 5.3 not to be satisfied and, in either such case, such breach is not curable on or shall not have been cured prior to by the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Outside Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 2 contracts
Sources: Privatization Agreement (Canwest Mediaworks Inc), Privatization Agreement (Canwest Mediaworks Inc)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, Closing (notwithstanding adoption thereof any approval of this Agreement by the Stockholders:boards of directors of the Parent or the Company):
(a) by mutual written consent of Parent and the Company;
(b) by Parent the Company, on the one hand, or Parent, on the Company other hand, if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting transaction has not closed by the Merger and such order, decree, ruling or other action date that is or shall have become final and nonappealableninety (90) days after the date hereof; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent Company if the Merger shall not have been consummated Company fails to fulfill any obligation under this Agreement that has proximately caused the failure of the Closing to occur on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)such date; and provided, howeverfurther, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(b) shall not be available to the party seeking Parent if Parent or Merger Sub fails to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time that has been the cause of, or resulted in, proximately caused the failure of the Effective Time Closing to occur on or before such date;
(c) by the Parent Termination Date Company, on the one hand, or Parent, on the other hand, if there shall be any law or regulation that makes consummation of the transactions contemplated herein illegal or if any judgment, injunction, order or decree enjoining Parent, Merger Sub or the Company Termination Datefrom consummating the transactions contemplated herein is entered and such judgment, as applicableinjunction, order or decree shall become final and nonappealable;
(d) by the Company if there shall have been Company, in the event of a material breach by Parent or Merger Sub of any representation, warranty, covenant warranty or agreement on the part of contained herein that has not been cured or is not curable by Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection within fifteen (a15) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to business days after the earlier of (A) ten (10) Business Days following Company gives written notice of such breach to Parent and (B) regarding the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreementbreach;
(e) by Parent if there shall have been Parent, in the event of a material breach by the Company of any representation, warranty, covenant warranty or agreement on the part of the Company contained in this Agreement such herein that any condition set forth in subsection (a) has not been cured or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to by the earlier of Company within fifteen (A15) ten (10) Business Days following business days after Parent gives written notice of such breach to the Company and (B) regarding the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; orbreach.
(f) by Parent at any time prior if Company Stockholder Approval has not been obtained and delivered to Parent within three hours after the execution of this Agreement (which Company Stockholder Approval will include a certificate as to the date delivery of such Company Stockholder Approval to the Company’s secretary, and time that such consent has been filed in the Company Requisite Vote is obtained and a copy minutes of the written consent is delivered to Parentproceedings of the Company’s stockholders).
Appears in 2 contracts
Termination. This Agreement may be terminated and the Merger Mergers contemplated hereby may be abandoned at any time prior to the Effective Time, Time (notwithstanding adoption thereof any approval of this Agreement by the Stockholders:holders of Company Common Shares):
(a) by mutual written consent of Parent the Company and the CompanyGotham;
(b) by Parent either Gotham or the Company Company:
(i) if any court of competent jurisdiction in the United States or other United States Governmental Entity having jurisdiction over the Company Authority shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger Mergers and such order, decree, ruling or other action is or shall have become final and nonappealable; providedor, howeverif any necessary and material registration, that filing, application, notice, consent, approval, order, qualification and waiver relating to the right Mergers and the transactions contemplated hereby (and, subject to terminate Section 7.02, any securities to be issued in connection with this Agreement pursuant to this and the transactions contemplated hereby) has not been obtained from Governmental Authorities (including any required filing, registration or notice required by any State's Blue Sky laws); or
(ii) if there is a failure of the occurrence of the conditions provided in Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.88.01(a);
(c) by Parent Gotham if the Merger shall not have there has been consummated on or before September 15, 2008 (the “Parent Termination Date”), or a material breach by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any (i) would result in a failure of a condition set forth in subsection (aSection 8.02(a) or (b) of Section 7.3 would and (ii) cannot be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to November 30, 2002; provided, however, that at the earlier time of (A) ten (10) Business Days following written notice of such breach to Parent termination Gotham and (B) the Company Termination Date; provided that the Company shall its respective affiliates are not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants material representation, warranty or agreements covenant contained in this Agreement;
(d) by Gotham, if the Board of Trustees of the Company shall have withdrawn or adversely amended in any material respect its approval or recommendation of the FUR Merger, this Agreement or the transactions contemplated hereby (other than the exercise of Subscription Rights or the Note Election) to the Company's shareholders, it being understood that neither (i) disclosure of any competing proposal that is not being recommended by the Board of Trustees of the Company nor (ii) disclosure of any facts or circumstances, together with a statement that the Board of Trustees of the Company continues to recommend approval and adoption of the FUR Merger and this Agreement, shall be considered to be a withdrawal or adverse amendment in any material respect of such approval or recommendation;
(e) by Parent the Company, after giving Gotham 96 hours' prior written notice of its receipt of an Acquisition Proposal, in order to enter into a definitive agreement providing for an Acquisition Transaction which is a Superior Proposal, provided that (i) the Company Meeting has not yet occurred and (ii) the Company has first complied with the provisions of Section 7.09; or
(f) by the Company, if there shall have has been a material breach by Gotham, GGP, FGA, FGPI, GGC or Sub of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any (i) would result in a failure of a condition set forth in subsection (aSection 8.03(a) or (b) of Section 7.2 would and (ii) cannot be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to November 30, 2002; provided, however, that at the earlier time of (A) ten (10) Business Days following written notice termination the Company, the FUMI Share Trust and their respective affiliates are not in breach of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right any material representation, warranty or covenant contained in this Agreement. The party desiring to terminate this Agreement pursuant to this Section 8.1(e9.01 (other than pursuant to Section 9.01(a)) if Parent or Merger Sub is then in material breach shall give written notice of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior such termination to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentother parties.
Appears in 2 contracts
Sources: Merger Agreement (First Union Real Estate Equity & Mortgage Investments), Agreement and Plan of Merger and Contribution (Gotham Partners Lp /Ny/)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether prior to or after receipt of the StockholdersCompany Shareholder Approval:
(a) by mutual written consent of Parent and the CompanyCompany (acting at the direction of the Lead Director);
(b) by either Parent or the Company if (with the prior approval of the Lead Director), if:
(i) the Merger shall not have been consummated by the Termination Date; provided, that the right to terminate the Agreement in accordance with this Section 7.01(b)(i) shall not be available to any court Party whose failure to perform any of its obligations under this Agreement (including the obligation to effect the Merger on the day specified in Section 1.02) has been the primary cause of the failure of the Merger to be consummated by such time;
(ii) any Governmental Entity of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final issues an order, judgment, decision, opinion, decree or ruling or taken takes any other final action (which the Party seeking to terminate this Agreement shall have used its reasonable best efforts to resist, resolve, annul, quash or lift, as applicable) permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decreejudgment, decision, opinion, decree or ruling or other action is or shall have become final and nonappealable; non-appealable, provided, however, that the right to terminate this the Agreement pursuant to in accordance with this Section 8.1(b7.01(b)(ii) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the Party whose failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the primary cause ofof any such order, decision, opinion, decree or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or other action; or
(iii) the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or Shareholder Approval shall not have been cured prior to obtained at the earlier of Company Shareholders Meeting or any adjournment or postponement thereof;
(Ac) ten by Parent, if:
(10) Business Days following written notice of such breach to Parent and (Bi) the Company Termination Date; provided that the Company shall not have the right breached or failed to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then perform in any material breach of respect any of its representations, warranties, covenants or agreements contained in this Agreement;
, which breach or failure to perform (eA) is incapable of being cured by Parent the Company prior to the Termination Date or if there capable of being cured, shall not have been a breach of any representation, warranty, covenant or agreement on the part of cured within 30 days following receipt by the Company contained of written notice of such breach or failure to perform from Parent, and (B) would result in this Agreement such that a failure of any condition set forth in subsection (aSections 6.02(a) or (b) of Section 7.2 would not be satisfied and), in either such caseprovided, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the Parent’s right to terminate this Agreement pursuant to in accordance with this Section 8.1(e7.01(c)(i) shall not be available if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements hereunder; or
(ii) a Change in the Company Recommendation shall have occurred;
(d) by the Company (with the prior approval of the Lead Director), if:
(i) Parent or Merger Sub shall have breached or failed to perform in any material respect any of their representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform (A) is incapable of being cured by Parent or Merger Sub, as the case may be, prior to the Termination Date or if capable of being cured, shall not have been cured within 30 days following receipt by Parent of written notice of such breach or failure to perform from the Company and (B) would result in a failure of any condition set forth in Sections 6.03(a) or (b), provided, that the Company’s right to terminate this Agreement in accordance with this Section 7.01(d) shall not be available if the Company is then in material breach of any of its representations, warranties, covenants or agreements hereunder; or
(fii) by Parent at the Board of Directors, upon the recommendation of the Lead Director, causes the Company to enter into any time prior agreement related to the date and time any Superior Proposal pursuant to Section 5.07, provided that the Company Requisite Vote is obtained and a copy of has complied with all provisions thereof, including the written consent is delivered to Parentnotice provisions therein, in all material respects.
Appears in 2 contracts
Sources: Merger Agreement (Frederick's of Hollywood Group Inc /Ny/), Merger Agreement (FOHG Holdings, LLC)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersTime by:
(a) by the mutual written consent agreement of Parent and the CompanyParties;
(b) by Parent either EMV or Xos if:
(i) the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over EMV Arrangement Resolution is not approved at the Company shall have issued a final orderEMV Meeting in accordance with the Interim Order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, except that the right to terminate this Agreement pursuant to under this Section 8.1(b8.01(b)(i) shall not be available to the party seeking any Party whose failure to terminate if such party or fulfil any of its Subsidiaries obligations or breach of any of its representations and warranties under this Agreement has failed been a principal cause of, or resulted in, the failure of the EMV Arrangement Resolution to take such actions with respect thereto as are required to comply with Section 6.8have been approved;
(cii) by Parent if the Merger shall Xos Stockholder Resolution are not have been consummated on or before September 15approved at the Xos Meeting in accordance with the Interim Order, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, except that the right to terminate this Agreement pursuant to under this Section 8.1(c8.01(b)(ii) shall not be available to the party seeking any Party whose failure to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform fulfil any of its obligations or breach of any of its representations and warranties under this Agreement required has been a principal cause of, or resulted in, the failure of the Xos Stockholder Resolution to have been approved;
(iii) any law makes the completion of the Arrangement or the transactions contemplated by this Agreement illegal or otherwise prohibited, and such law has become final and non-appealable, except that the right to terminate this Agreement under this Section 8.01(b)(iii) shall not be performed at available to any Party whose failure to fulfil any of its obligations or breach of any of its representations and warranties under this Agreement has been a principal cause of, or resulted in, the enactment, making or enforcement of such law; or
(iv) the Effective Time does not occur on or prior to the Effective Time Outside Date, except that the right to terminate this Agreement under this Section 8.01(b)(iv) shall not be available to any Party whose failure to fulfil any of its obligations or breach of any of its representations and warranties under this Agreement has been the a principal cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableby such date;
(dc) by the Company if there shall have been EMV if:
(i) a breach of any representation, warranty, representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub contained in Xos under this Agreement such occurs that any condition set forth would cause the conditions in subsection (aSections 7.03(a) or (b7.03(b) of Section 7.3 would not to be satisfied andsatisfied, in either such case, and such breach or failure is incapable of being cured or is not curable cured on or shall not have been cured prior to the earlier Outside Date in accordance with the terms of Section 4.07(c) (A) ten (10) Business Days following written notice of such and any intentional breach shall be deemed to Parent and (B) the Company Termination Datebe incurable); provided however that the Company shall EMV is not have the right to terminate then in breach of this Agreement pursuant so as to this Section 8.1(dcause any condition in Sections 7.01 or 7.02 not to be satisfied;
(ii) if prior to the Company approval by the EMV Shareholders of the EMV Arrangement Resolution, the EMV Board authorizes EMV to enter into a definitive agreement providing for the implementation of an EMV Superior Proposal, provided EMV is then in material breach of any of its covenants compliance with Article 5 and that prior to or agreements contained concurrent with such termination EMV pays the EMV Termination Amount in this Agreementaccordance with Section 8.03;
(eiii) by Parent if there shall have been a breach of Xos fails to perform, in any representationmaterial respect, warranty, any covenant or agreement on the part of Xos under Article 6;
(iv) there shall have occurred a Material Adverse Change in respect of Xos after the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) date of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(fv) by Parent at there shall have occurred a Xos Change in Recommendation.
(d) Xos if:
(i) a breach of any time representation or warranty or failure to perform any covenant or agreement on the part of EMV under this Agreement occurs that would cause the conditions in Sections 7.02(a) or 7.02(b) not to be satisfied, and such breach or failure is incapable of being cured or is not cured on or prior to the Outside Date in accordance with the terms of Section 4.07(c) (and any intentional breach shall be deemed to be incurable); provided however that Xos is not then in breach of this Agreement so as to cause any condition in Sections 7.01 or 7.03 not to be satisfied;
(ii) EMV fails to perform, in any material respect, any covenant or agreement on the part of EMV under Article 5;
(iii) there shall have occurred a Material Adverse Change in respect of EMV after the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentthis Agreement; or
(iv) there shall have occurred an EMV Change in Recommendation.
Appears in 2 contracts
Sources: Arrangement Agreement (Electrameccanica Vehicles Corp.), Arrangement Agreement (Xos, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption approval thereof by the Stockholdersstockholders of the Company:
(a) by By mutual written consent of Parent Parent, Purchaser and the Company;
(b) by By Parent or the Company if any court of competent jurisdiction or other Governmental Entity governmental body located or having jurisdiction over within the Company United States shall have issued a final order, decree injunction, decree, judgment or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Offer or the Merger and such order, injunction, decree, judgment, ruling or other action is or shall have become final and nonappealable; provided, however, that the prior to invoking this right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the of termination each party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required agrees to comply with Section 6.86.10;
(c) By Parent if due to an occurrence or circumstance which resulted in a failure to satisfy any of the Offer Conditions (other than as a result of a breach by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any Purchaser of its obligations under this Agreement required hereunder), Purchaser shall have (i) terminated the Offer or (ii) failed to be performed at pay for Shares pursuant to the Offer on or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Outside Date or the Company Termination Date, (as applicabledefined below);
(d) by By the Company if (i) there shall have been a material breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub the Purchaser contained in this Agreement such that any condition set forth in subsection which materially adversely affects Parent's or Purchaser's ability to consummate (aor materially delays commencement or consummation of) or (b) of Section 7.3 would not be satisfied andthe Offer, in either such case, such breach is not curable or and which shall not have been cured prior to the earlier of (A) ten (10) Business Days 10 business days following written notice of such breach to Parent and (B) two business days prior to the date on which the Offer expires, (ii) Purchaser shall have (A) terminated the Offer or (B) failed to pay for Shares pursuant to the Offer on or prior to the Outside Date (unless such failure is caused by or results from the failure of any representation or warranty of the Company Termination Date; provided that to be true and correct in any material respect or the failure of the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then perform in any material breach of respect any of its covenants or agreements contained in this Agreement;) or (iii) prior to the purchase of Shares pursuant to the Offer, any person shall have made a bona fide offer to acquire the Company (A) that the Board of Directors of the Company by majority vote determines in its good faith judgment is more favorable to the Company's stockholders than the Offer and the Merger and (B) as a result of which the Board of Directors by majority vote determines in good faith, based upon the advice of outside counsel, that it is obligated by its fiduciary obligations under applicable law to terminate this Agreement, provided that such termination under this clause (iii) shall not be effective until the Company has made payment of the full fee and expense reimbursement required by Section 8.3; or
(e) by By Parent prior to the purchase of Shares pursuant to the Offer, if (i) there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied andwhich is reasonably likely to have a Material Adverse Effect, in either such case, such breach is not curable or which shall not have been cured prior to the earlier of (A) ten (10) Business Days 10 business days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time two business days prior to the date on which the Offer expires, (ii) the Board shall have withdrawn or modified (including by amendment of the Schedule 14D-9) in a manner adverse to Purchaser its approval or recommendation of the Offer, this Agreement or the Merger or shall have recommended another offer or transaction in accordance with Section 6.5, shall have resolved to effect any of the foregoing, or (iii) the Minimum Condition shall not have been satisfied by the expiration date of the Offer as it may have been extended pursuant hereto and time that on or prior to such date (A) any person (including the Company Requisite Vote is obtained but not including Parent or Purchaser) shall have made a public announcement, disclosure or communication to the Company with respect to a Third Party Acquisition or (B) any person (including the Company or any of its affiliates or subsidiaries), other than Parent or any of its affiliates, shall have become (and a copy remain at the time of termination) the beneficial owner of 19.9% or more of the written consent is delivered Shares (unless such person shall have tendered and not withdrawn such person's Shares pursuant to Parentthe Offer). As used herein, the "Outside Date" shall mean the latest of (I) 70 days following the date hereof or (II) the date that all conditions to the Offer set forth in paragraph (h) of the Offer Conditions, the satisfaction of which involve compliance with or otherwise relate to any United States antitrust or competition laws or regulations (including any enforcement thereof), have been satisfied for a period of 10 business days; provided that in no event shall the Outside Date be later than January 31, 1999.
Appears in 2 contracts
Sources: Merger Agreement (Dillard Department Stores Inc), Merger Agreement (Mercantile Stores Co Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by the mutual written consent of Parent and the CompanyMember;
(b) by Parent by written notice to the Member, if the Written Consent shall not have been provided to Parent within five (5) Business Days following the effectiveness of the Registration Statement;
(c) by Parent by written notice to the Member, if any of the representations or warranties of the Member set forth in Article III will not be true and correct, or if the Member has failed to perform any covenant or agreement on the part of the Member set forth in this Agreement (including an obligation to consummate the Closing), such that the conditions to the Closing set forth in either Section 8.01(a) or Section 8.01(b) would not be satisfied at or prior to the Outside Date and the breach or breaches causing such representations or warranties not to be true and correct, or the Company failure to perform any covenant or agreement, as applicable, are not cured (if capable of being cured) within thirty (30) days after written notice thereof is delivered to the Member; provided, however, that Parent will not be permitted to terminate this Agreement pursuant to this Section 10.01(c) if Parent, Holdco or Merger Sub is then in breach of any of their respective representations, warranties, covenants or agreements set forth in this Agreement in a manner such that the conditions to the Closing set forth in either Section 8.02(a) or Section 8.02(b) would not be satisfied;
(d) by the Member by written notice to Parent, if any court of competent jurisdiction the representations or other Governmental Entity having jurisdiction over warranties of Parent, Holdco or Merger Sub set forth in Article IV will not be true and correct, or if Parent, Holdco or Merger Sub has failed to perform any covenant or agreement on the Company shall have issued a final orderpart of Parent, decree Holdco or ruling Merger Sub, respectively, set forth in this Agreement (including an obligation to consummate the Closing), such that the conditions to the Closing set forth in either Section 8.02(a) or taken Section 8.02(b) would not be satisfied at or prior to the Outside Date and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any other final action restrainingcovenant or agreement, enjoining or otherwise prohibiting the Merger and such orderas applicable, decree, ruling or other action are not cured (if capable of being cured) within thirty (30) days after written notice thereof is or shall have become final and nonappealabledelivered to Parent; provided, however, that the Member will not be permitted to terminate this Agreement pursuant to this Section 10.01(d) if the Member is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement in a manner such that the conditions to the Closing set forth in either Section 8.01(a) or Section 8.01(b) would not be satisfied;
(e) by Parent or the Member by written notice to the Member or Parent, as applicable, if the Closing has not occurred on or prior to January 31, 2019 (such date, as may be extended pursuant to this clause (e), the “Outside Date”); provided, however, that if the Closing has not occurred on or prior to January 31, 2019, the Outside Date may be extended by Parent until February 28, 2019 by written notice delivered to the Member on or after January 22, 2019, but on or before January 31, 2019; provided, further, that if the Closing has not occurred on or prior to February 28, 2019, the Outside Date may be extended by Parent until March 31, 2019 by written notice delivered to the Member on or after February 19, 2019, but on or before February 28, 2019; provided, further, that the Party seeking to terminate this Agreement pursuant to this Section 10.01(e) will not have (provided that if such Party is Parent, neither Parent nor Holdco nor Merger Sub will have) breached in any material respect this Agreement in any manner that will have proximately caused the failure to consummate the transactions contemplated by this Agreement on or prior to the Outside Date;
(f) by Parent or the Member if the Required Parent Vote shall not have been obtained at the Parent Stockholders Meeting duly convened therefor (as such meeting may have been adjourned or postponed in accordance with this Agreement);
(g) by Parent or the Member if any Law or Order enacted, issued, promulgated or entered by a Governmental Entity of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting consummation of the Merger or the Contribution shall become final and non-appealable and the Party seeking to terminate this Agreement pursuant to this Section 10.01(g) shall not have (provided that if such Party is Parent, neither Parent nor Holdco nor Merger Sub shall have) breached in any material respect this Agreement in any manner that will have proximately caused such Law or Order to be enacted, issued, promulgated or entered;
(h) by the Member by written notice to Parent, if the Board of Directors of Parent shall have made a Parent Change in Recommendation; provided, however, that the Member shall not have a right to terminate this Agreement pursuant to this Section 8.1(b10.01(h) shall not be available to if the party seeking to terminate if such party or any of its Subsidiaries Required Parent Vote has failed to take such actions with respect thereto as are required to comply with Section 6.8;been obtained; and
(ci) by Parent the Member by written notice to Parent, if (a) all of the conditions set forth in Section 8.01 (other than any conditions that by their terms are to be satisfied at the Closing (but subject to such conditions being satisfied if the Merger shall Closing would have occurred) and other than any conditions that have not been satisfied (or would not have been consummated on satisfied at the Closing) as a result of Parent, Holdco or before September 15, 2008 (the “Parent Termination Date”)Merger Sub’s breach of, or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its their respective covenants or agreements contained in in, this Agreement;
(e) by Parent if there shall have been a breach of any representationsatisfied or validly waived by Holdco, warrantyParent and Merger Sub, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied andthe Member has provided notice to Parent in writing that the Member is prepared, in either such caseready, such breach is not curable or shall not have been cured prior willing and able to consummate the earlier of Closing and (Ac) ten Holdco, Parent and Merger Sub fail to consummate the Closing within three (103) Business Days following written notice after delivery of such breach notice and Member stood ready, willing and able to consummate the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentClosing throughout such period.
Appears in 2 contracts
Sources: Master Transaction Agreement (RTI Surgical Holdings, Inc.), Master Transaction Agreement (Rti Surgical, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to ----------- the Effective Time, notwithstanding adoption thereof by whether before or after the Stockholdersrequisite approvals of the shareholders of Company or stockholders of Parent:
(a) by mutual written consent duly authorized by the Boards of Directors of Parent and the Company;
(b) by either Company or Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such ordershall not have been consummated by the date that is nine (9) months after the date of this Agreement (the "Outside Date"), decree, ruling or other action is or shall have become final and nonappealablefor any reason; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in the party seeking failure of the Merger to terminate if occur on or before such party date and such action or any failure to act constitutes a breach of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8this Agreement;
(c) by either Company or Parent if a Governmental Entity shall have issued an order, decree or ruling or taken any other action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which order, decree, ruling or other action is final and nonappealable;
(d) by either Company or Parent if the required approval of the Merger by the shareholders of Company contemplated by this Agreement shall not have been consummated on or before September 15, 2008 (obtained by reason of the “Parent Termination Date”), or by failure to obtain the required vote at a meeting of the Company if the Merger shall not have been consummated on shareholders duly convened therefore or before September 30, 2008 (the “Company Termination Date”)at any adjournment thereof; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(d) shall not be available to the Company where the failure to obtain the Company shareholder approval shall have been caused by (i) 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 or (ii) a breach of any Company Voting Agreements by any party seeking thereto other than Parent;
(e) by either Company or Parent if the required approval of the stockholders of Parent contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at a meeting of the Parent stockholders duly convened therefore or at any adjournment thereof; provided, however, that the right to terminate if any action of such party or any of its Subsidiaries or this Agreement under this Section 7.1(e) shall not be available to Parent where the failure to obtain the Parent stockholder approval shall have been caused by (i) the action or failure to act of the Parent and such party action or any failure to act constitutes a material breach by Parent of its Subsidiaries to perform any of its obligations under this Agreement required to be performed or (ii) a breach of any Parent Voting Agreement by any party thereto other than Company;
(f) by Parent (at or any time prior to the Effective Time has been adoption and approval of this Agreement and the cause of, or resulted in, Merger by the failure required vote of the Effective Time to occur on or before the Parent Termination Date or the shareholders of Company) if a Company Termination Date, Triggering Event (as applicable;defined below) shall have occurred.
(dg) by Company (at any time prior to the Company required approval of the stockholders of Parent contemplated by this Agreement) if there a Parent Triggering Event (as defined below) shall have been occurred.
(h) by Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of Parent or Merger Sub shall have become untrue, in either case such that the conditions set forth in Section 6.2(a) or (bSection 6.2(b) of Section 7.3 would not be satisfied and, in either such case, as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided that if such inaccuracy in Parent's or Merger Sub's representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub through the exercise of its reasonable efforts, then Company may not curable or shall not have been cured terminate this Agreement under this Section 7.1(h) prior to the earlier of Outside Date, provided Parent or Merger Sub continues to exercise all reasonable efforts to cure its breach (A) ten (10) Business Days following written notice of such breach to Parent and (B) the it being understood that Company Termination Date; provided that the Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(dparagraph (h) if such breach by Parent or Merger Sub is cured prior to the Company is then in material breach of any of its covenants or agreements contained in this Agreement;Outside Date; or
(ei) by Parent if there shall have been Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of Company shall have become untrue, in either case such that the conditions set forth in Section 6.3(a) or (bSection 6.3(b) of Section 7.2 would not be satisfied and, in either such case, as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided that if such inaccuracy in Company's representations and warranties or breach by Company is curable by Company through the exercise of its reasonable efforts, then Parent may not curable or shall not have been cured terminate this Agreement under this Section 7.1(i) prior to the earlier of (A) ten (10) Business Days following written notice of Outside Date, provided Company continues to exercise all reasonable efforts to cure such breach to the Company and (B) the Parent Termination Date; provided it being understood that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(eparagraph (i) if Parent or Merger Sub such breach by Company is then in material breach cured prior to the Outside Date. For the purposes of any of its covenants or agreements contained in this Agreement, a "Company Triggering Event" shall be deemed to have occurred if: (i) the Board of Directors of Company or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to Parent its unanimous recommendation in favor of the adoption and approval of the Agreement or the approval of the Merger; or
(fii) by Company shall have failed to include in the Proxy Statement/Prospectus the unanimous recommendation of the Board of Directors of Company in favor of the adoption and approval of the Agreement and the approval of the Merger; (iii) Board of Directors of Company fails to reaffirm its unanimous recommendation in favor of the adoption and approval of the Agreement and the approval of the Merger within 10 business days after Parent requests in writing that such recommendation be reaffirmed at any time prior following the public announcement of a Company Acquisition Proposal; (iv) the Board of Directors of Company or any committee thereof shall have approved or publicly recommended any Company Acquisition Proposal; (v) Company shall have entered into any letter of intent of similar document or any agreement, contract or commitment accepting any Company Acquisition Proposal; or (vi) a tender or exchange offer relating to securities of Company shall have been commenced by a person or entity unaffiliated with Parent and Company shall not have sent to its securityholders pursuant to Rule 14e-2 promulgated under the Securities Act, within 10 business days after such tender or exchange offer is first published sent or given, a statement disclosing that Company recommends rejection of such tender or exchange offer; and a "Parent Triggering Event" shall be deemed to have occurred if: (i) the Board of Directors of Parent or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to Company its unanimous recommendation in favor of the issuance of the shares of Parent Common Stock pursuant to the date Merger and time that the Company Requisite Vote is obtained amendment of Parent's Certificate of Incorporation to change the name of Parent to "▇▇▇▇▇▇▇.▇▇▇, Inc.," effective at the Effective Time, and a copy to increase the authorized number of shares of Parent Common Stock so as to permit the transactions contemplated by the Agreement, and (ii) Parent shall have failed to include in the Proxy Statement/Prospectus the unanimous recommendation of the written consent Board of Directors of Parent in favor of the issuance of the shares of Parent Common Stock pursuant to the Merger and the amendment of Parent's Certificate of Incorporation to change the name of Parent to "▇▇▇▇▇▇▇.▇▇▇, Inc.," effective at the Effective Time, and to increase the authorized number of shares of Parent Common Stock so as to permit the transactions contemplated by the Agreement, and the adoption and approval of the Agreement and the approval of the Merger; (iii) Board of Directors of Parent fails to reaffirm its unanimous recommendation in favor of the issuance of the shares of Parent Common Stock pursuant to the Merger and the amendment of Parent's Certificate of Incorporation to change the name of Parent to "▇▇▇▇▇▇▇.▇▇▇, Inc.," effective at the Effective Time, and to increase the authorized number of shares of Parent Common Stock so as to permit the transactions contemplated by the Agreement, and the adoption and approval of the Agreement and the approval of the Merger, within 10 business days after Company requests in writing that such recommendation be reaffirmed at any time following the public announcement of a Parent Acquisition Proposal; (iv) the Board of Directors of Parent or any committee thereof shall have approved or publicly recommended any Parent Acquisition Proposal; (v) Parent shall have entered into any letter of intent of similar document or any agreement, contract or commitment accepting any Parent Acquisition Proposal; or (vi) a tender or exchange offer relating to securities of Parent shall have been commenced by a person or entity unaffiliated with Company and Parent shall not have sent to its securityholders pursuant to Rule 14e-2 promulgated under the Securities Act, within 10 business days after such tender or exchange offer is delivered to Parentfirst published sent or given, a statement disclosing that Parent recommends rejection of such tender or exchange offer.
Appears in 2 contracts
Sources: Merger Agreement (Egghead Com Inc), Merger Agreement (Onsale Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after obtaining the Stockholders:Company Stockholder Approval, as follows (the date of any such termination, the “Termination Date”):
(a) by mutual written consent of Parent and the CompanyCompany at any time prior to the Effective Time whether before or after the Company Stockholder Approval;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderCompany, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger Effective Time shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated occurred on or before September 30, 2008 2018 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.01(b) shall not be available to the party seeking a Party whose failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, caused the failure of the Effective Time to occur on or before the such date;
(c) by either Parent Termination Date or the Company Termination DateCompany, as applicableif any Governmental Authority shall have (i) enacted, issued, promulgated or enforced any Law that makes consummation of the Merger illegal or otherwise prohibited or (ii) enacted, issued, promulgated, enforced or entered any Order which has the effect of making the consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger;
(d) by Parent, if prior to the Effective Time, (i) there shall have occurred any effects, events, occurrences, developments, state of facts or changes that, individually or in the aggregate, would reasonably be expected to have, individually or in the aggregate, a Company if Material Adverse Effect or (ii) there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach inaccuracy of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any Agreement, which breach or inaccuracy (A) would give rise to the failure of a condition set forth in subsection (aSection 7.02(a) or Section 7.02(b) and (bB) is incapable of Section 7.2 would being cured or has not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days the Outside Date or the date that is 30 days following written notice thereof; provided, however, that neither Parent nor Merger Sub is then in material breach of such breach to any representation, warranty or covenant under this Agreement;
(e) by either Parent or the Company, if the Company Stockholder Meeting (including any adjournment or postponement thereof) has concluded, the Company Stockholders have voted and (B) the Parent Termination DateCompany Stockholder Approval was not obtained; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e8.01(e) shall not be available to the Company if it has not materially complied with its obligations under Section 6.01 and Section 6.04;
(f) by Parent, if (i) an Adverse Recommendation Change shall have occurred, (ii) the Company Board or any committee thereof (A) shall not have rejected any Acquisition Proposal within seven days of the making public thereof (including, for these purposes, by taking no position with respect to the acceptance by the Company Stockholders of a tender offer or exchange offer, which shall constitute a failure to reject such Acquisition Proposal) or (B) shall have failed, pursuant to Rule 14e-2 promulgated under the Exchange Act or otherwise, to publicly reconfirm the Company Board Recommendation within four days after receipt of a written request from Parent that it do so if such request is made following the making by any Person of an Acquisition Proposal or Merger Sub (iii) the Company shall have violated or breached in any material respect any of its obligations under Section 6.06;
(g) by the Company, if prior to the Effective Time, (i) there shall have occurred any effects, events, occurrences, developments, state of facts or changes that, individually or in the aggregate, would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect or (ii) there shall have been a breach or inaccuracy of any representation, warranty, covenant or agreement on the part of Parent contained in this Agreement, which breach or inaccuracy (A) would give rise to the failure of a condition set forth in Section 7.03(a) or Section 7.03(b) and (B) is incapable of being cured or has not been cured prior to the earlier of the Outside Date or the date that is 30 days following written notice thereof; provided, however, that the Company is not then in material breach of any of its covenants representation, warranty or agreements contained in covenant under this Agreement; or
(fh) by Parent at any time the Company prior to the date and time that obtaining the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentStockholder Approval in accordance with Section 6.06(d).
Appears in 2 contracts
Sources: Merger Agreement (Granite Construction Inc), Merger Agreement (Layne Christensen Co)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:Time (except as otherwise stated below):
(a) by mutual written consent of Parent the Company and the CompanyParent;
(b) by Parent or either the Company or Parent:
(i) if the Effective Time shall not have occurred on or before October 6, 2022 (the “End Date”) provided that the right to terminate this Agreement under this Section 9.1(b)(i) shall not be available to a Party if the failure of the Effective Time to occur before the End Date was primarily due to the Company’s or Matrix’s (in the case of termination by Parent) or Parent’s or Merger Sub’s (in the case of termination by the Company) breach of any court of its obligations under this Agreement; or
(ii) if there shall have been issued an Order by a Governmental Authority of competent jurisdiction or other Governmental Entity having jurisdiction over permanently prohibiting the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting consummation of the Merger and such order, decree, ruling or other action is or Order shall have become final and nonappealablenon-appealable; provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(b9.1(b)(ii) shall not be available to the party seeking to terminate a Party if such party Order was primarily due to the Company’s or any Matrix’s (in the case of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;termination by Parent) or Parent’s or Merger Sub’s (in the case of termination by the Company) breach of this Agreement.
(c) by Parent Parent:
(i) if the Company or Matrix shall have breached or failed to perform any of its (A) representations or warranties or (B) covenants or agreements set forth in this Agreement, in each case which breach or failure to perform (x) would give rise to the failure of a condition to the Merger set forth in Section 8.2(a) or Section 8.2(b) and (y) is incapable of being cured by the Company and Matrix during the thirty (30) day period after written notice from Parent of such breach or failure to perform, or, if capable of being cured during such thirty (30) day period, shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or cured by the Company if earlier of the Merger end of such thirty (30) day period and the End Date; provided that Parent shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c9.1(c)(i) shall not be available to the party seeking to terminate if any action Parent or Merger Sub is then in breach of such party or any of its Subsidiaries representations, warranties, covenants or agreements such that the failure of such party or any of its Subsidiaries Company has the right to perform any of its obligations under terminate this Agreement required pursuant to be performed at or prior to Section 9.1(d)(i); or
(ii) if Parent has not received an irrevocable written consent duly executed by Matrix, in its capacity as the Effective Time has been the cause of, or resulted in, the failure sole shareholder of the Effective Time to occur on or before Company, adopting and approving this Agreement and the Parent Termination Date or transactions contemplated hereby, including the Company Termination DateMerger, as applicable;within 24 hours of the execution and delivery of this Agreement.
(d) by the Company Company:
(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that shall have breached or failed to perform any condition of its (A) representations or warranties or (B) covenants or agreements set forth in subsection this Agreement, in each case which breach or failure to perform (ax) would give rise to the failure of a condition to the Merger set forth in Section 8.3(a) or Section 8.3(b) and (by) is incapable of Section 7.3 would not be satisfied and, in either such case, being cured by Parent and Merger Sub during the thirty (30) day period after written notice from the Company of such breach is not curable or failure to perform, or, if capable of being cured during such thirty (30) day period, shall not have been cured prior to by the earlier of (A) ten (10) Business Days following written notice the end of such breach to Parent thirty (30) day period and (B) the Company Termination End Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(d)(i) if the Company or Matrix is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have has the right to terminate this Agreement pursuant to this Section 8.1(e9.1(c)(i);
(ii) if all of the conditions set forth in Section 8.1 and Section 8.2 have been satisfied (except for any conditions that by their nature can only be satisfied on the Closing Date, which are capable of being satisfied) and Parent or and Merger Sub is then fail to consummate the Merger within four (4) Business Days following the date the Closing should have occurred (as such date may be extended in material breach of any of its covenants or agreements contained in accordance with this Agreement); or
(fiii) by following the Hawkeye Closing, if Parent at any time has delivered written notice to the Company asserting that the SpinCo Taxes (as defined in the Tax Matters Agreement) resulting from or attributable to the Specified Items are greater than zero, and such assertion has not been withdrawn prior to the date and time that the Company Requisite Vote is obtained and a copy termination of the written consent is delivered to Parentthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Meredith Corp), Merger Agreement (IAC/InterActiveCorp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior ----------- to the Effective Time, notwithstanding adoption thereof by whether before or after the Stockholdersrequisite approvals of the stockholders of Company or Parent:
(a) by mutual written consent duly authorized by the Boards of Directors of Parent and the Company;
(b) by either Company or Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such ordershall not have been consummated by October 31, decree, ruling or other action is or shall have become final and nonappealable2001 for any reason; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(b) shall not be available to any party whose action or failure to act has been a proximate cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a material breach of this Agreement, provided further that such date shall be extended to December 31, 2001 in the event that the waiting period under the HSR Act has not expired or been terminated or the Registration Statement has not been declared effective, and the extending party seeking reasonably believes that the waiting period will expire or the registration statement will be declared effective in time to terminate if such party permit the closing to occur on or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;before December 31, 2001.
(c) by either Company or Parent if a Governmental Entity shall have issued an order, decree or ruling or taken any other action, in any case having the Merger effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which order, decree, ruling or other action is final and non-appealable;
(d) by either Company or Parent, if the approval and adoption of this Agreement, and the approval of the Merger, by the stockholders of Company shall not have been consummated on obtained by reason of the failure to obtain the required vote at a meeting of Company stockholders duly convened therefore or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)at any adjournment thereof; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(d) shall not be available to Company where the party seeking failure to obtain the Company stockholder approval shall have been caused by the action or failure to act of Company and such action or failure to act constitutes a material breach by Company of this Agreement;
(e) by either Company or Parent, if the approval of the issuance of shares of Parent Common Stock pursuant to the Merger by the stockholders of Parent shall not have been obtained by reason of the failure to obtain the respective required votes at a meeting of Parent stockholders duly convened therefore or at any adjournment thereof; provided, however, that the right to terminate if any action of such party or any of its Subsidiaries or this Agreement under this Section 7.1(e) shall not be available to Parent where the failure to obtain the Parent stockholder approvals shall have been caused by the action or failure to act of Parent and such party action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by Parent (at any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or time prior to the Effective Time has been adoption and approval of this Agreement and the cause of, or resulted in, Merger by the failure required vote of the Effective Time to occur on or before the Parent Termination Date or the stockholders of Company) if a Company Termination Date, Triggering Event (as applicabledefined below) shall have occurred;
(dg) by Company (at any time prior to the Company approval of the Parent Stockholder Approval by the required vote of the stockholders of Parent) if there a Parent Triggering Event (as defined below) shall have been a occurred;
(h) by Company, if Parent shall have breached any representation or warranty or shall breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of Parent shall have become materially inaccurate, in either case such that the conditions set forth in Section 6.2(a) or (bSection 6.2(b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice time of such breach or as of the time such representation or warranty shall have become materially inaccurate, provided that if such inaccuracy in Parent's representations and warranties or material breach by Parent is curable by Parent through the exercise of its commercially reasonable efforts, then Company may not terminate this Agreement under this Section 7.1(h) for 45 days after delivery of written notice from Company to Parent and of such material breach, provided Parent continues to exercise commercially reasonable efforts to cure such material breach (B) the it being understood that Company Termination Date; provided that the Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(dparagraph (h) if the such material breach or material inaccuracy by Parent is cured during such 45-day period, or if Company is then in material breach of any of its covenants or agreements contained in under this Agreement);
(ei) by Parent Parent, if there the Company shall have been a breached any representation or warranty or shall breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of the Company shall have become materially inaccurate, in either case such that the conditions set forth in Section 6.3(a) or (bSection 6.3(b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice time of such breach or as of the time such representation or warranty shall have become materially inaccurate, provided that if such inaccuracy in the Company's representations and warranties or material breach by the Company is curable by the Company through the exercise of its commercially reasonable efforts, then Parent may not terminate this Agreement under this Section 7.1(i) for 45 days after delivery of written notice from Parent to the Company and of such material breach, provided the Company continues to exercise commercially reasonable efforts to cure such material breach (B) it being understood that the Parent Termination Date; provided that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(eparagraph (h) if such material breach or material inaccuracy by the Company is cured during such 45-day period, or if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in under this Agreement); or
(fj) by By Parent, if Company shall have willfully and materially breached the Company's obligations under the Loan Agreement and such breach shall continue despite two (2) business days written notice and opportunity to cure; or
(k) By the Company, if Parent shall have willfully and materially breached Parent's obligations under the Loan Agreement and such breach shall continue despite two (2) business days written notice and an opportunity to cure. For the purposes of this Agreement, a "Company Triggering Event" shall be deemed to have occurred if: (i) the Board of Directors of Company or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to Parent its recommendation in favor of the adoption and approval of the Agreement or the approval of the Merger; (ii) Company shall have failed to include in the Joint Proxy Statement/Prospectus the recommendation of the Board of Directors of Company in favor of the adoption and approval of the Agreement and the approval of the Merger; (iii) the Board of Directors of Company fails to reaffirm its recommendation in favor of the adoption and approval of the Agreement and the approval of the Merger within 10 business days after Parent requests in writing that such recommendation be reaffirmed at any time prior to following the date and time that public announcement of a Company Acquisition Proposal; (iv) the Board of Directors of Company Requisite Vote is obtained and a copy or any committee thereof shall have approved or publicly recommended any Company Acquisition Proposal; (v) Company shall have entered into any letter of intent of similar document or any agreement, contract or commitment accepting any Company Acquisition Proposal; (vi) Company shall have knowingly breached any of the written consent material provisions of Sections 5.2 or any of the provisions of Section 5.4; or (vii) a tender or exchange offer relating to securities of Company shall have been commenced by a person unaffiliated with Parent, and Company shall not have sent to its securityholders pursuant to Rule 14e-2 promulgated under the Securities Act, within 10 business days after such tender or exchange offer is delivered first published sent or given, a statement disclosing that Company recommends rejection of such tender or exchange offer. For the purposes of this Agreement, a "Parent Triggering Event" shall be deemed to Parenthave occurred if: (i) the Board of Directors of Parent or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to Company its recommendation in favor of the Parent Stockholder Approval; (ii) Parent shall have failed to include in the Joint Proxy Statement/Prospectus the recommendation of the Board of Directors of Parent in favor of the Parent Stockholder Approval; (iii) the Board of Directors of Parent fails to reaffirm its recommendation in favor of the adoption and approval of the Agreement and the approval of the Merger within 10 business days after Company requests in writing that such recommendation be reaffirmed at any time following the public announcement of an Parent Acquisition Proposal; (iv) the Board of Directors of Parent or any committee thereof shall have approved or publicly recommended any Parent Acquisition Proposal; (v) Parent shall have entered into any letter of intent of similar document or any agreement, contract or commitment accepting any Parent Acquisition Proposal; (vi) Parent shall have knowingly breached any of the material provisions of Sections 5.3 or any of the provisions of Section 5.5, or (vii) a tender or exchange offer relating to securities of Parent shall have been commenced by a person unaffiliated with Company, and Parent shall not have sent to its securityholders pursuant to Rule 14e-2 promulgated under the Securities Act, within 10 business days after such tender or exchange offer is first published sent or given, a statement disclosing that Parent recommends rejection of such tender or exchange offer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Broadbase Software Inc), Merger Agreement (Kana Communications Inc)
Termination. (a) This Agreement will commence on the Effective Date and will continue for one year, unless otherwise terminated as provided in this Section 15. After one year, this Agreement will automatically renew for successive one year periods, unless either party notifies the other of termination, in writing, in accordance with this Section 15.
(b) This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior by either party upon 60 days written notice to the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by mutual written consent of Parent and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;party.
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to Either party may terminate this Agreement at any time by written notice to the other party, effective immediately, or on such later date as may be specified in the notice, if:
(i) any representation, warranty, certification or statement made by such other party under this Agreement, or pursuant to any certificate or document delivered pursuant to this Section 8.1(cAgreement, was or becomes incorrect in any material respect when made;
(ii) shall not be available to the such other party seeking to terminate if fails in any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries material respect to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableAgreement;
(diii) by such other party requests a postponement of maturity or a moratorium with respect to any indebtedness or is adjudged bankrupt or insolvent, or there is commenced against such other party a case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or such other party files an application for an arrangement with its creditors, seeks or consents to the Company if there shall have been appointment of a breach receiver, administrator or other similar official for all or any substantial part of its property, admits in writing its inability to pay its debts as they mature, or takes any corporate action in furtherance of any representationof the foregoing, warrantyor fails to meet applicable legal minimum capital requirements;
(iv) any Applicable Law, covenant rule or agreement on regulation or any change therein or in the part of Parent interpretation or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) administration thereof has or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not may have been cured prior to the earlier of a Material Adverse Effect on:
(A) ten (10) Business Days following written notice Account Holder or the rights of such breach Account Holder or any Beneficiary with respect to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in services covered by this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; quality or efficiency of Xapo’s Services provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in by Xapo under this Agreement; or
(fC) Xapo’s ability to provide Xapo’s Services to Account Holder as required under this Agreement; or
(v) a substantial change in the ownership or control, or a material adverse change in the financial condition, of the Trust or Xapo, as applicable, or in the ability of the Account Holder or Xapo, as applicable, to fulfill its responsibilities under this Agreement occurs.
(d) Upon termination of this Agreement:
(i) Xapo shall promptly upon Account Holder’s order deliver or cause to be delivered to Account Holder all Custodial Coins held or controlled by Parent at Xapo as of the effective date of termination, together with such copies of the records maintained pursuant to Sections 6(b)–(e) and as Account Holder requests;
(ii) Account Holder shall, but only upon the performance by Xapo of its obligations under Section 15(c)(i), pay to Xapo all fees as set forth in the Agreement accrued to the date of such termination;
(iii) the license granted to Account Holder to access and use Xapo’s Services under Section 17(b) shall terminate, and Account Holder (and its Authorized Persons) shall immediately discontinue all access and use of Xapo’s Services; and
(iv) any time such termination shall not affect any right or liability arising out of events occurring, or services delivered, prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parenteffectiveness thereof.
Appears in 2 contracts
Sources: Bitcoin Custodial Agreement (Grayscale Bitcoin Trust (BTC)), Custodial Agreement (Bitcoin Investment Trust)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by action taken by the Stockholdersterminating party or parties, and except as provided below, whether before or after the requisite approvals of the shareholders of the Company:
(a) by mutual written consent of Parent or the Company duly authorized by the Boards of Directors of each of Parent and the Company;
(b) by Parent or either the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15by the date 60 days from July 2, 2008 2007 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination End Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in 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 the Company or Parent if a Governmental Entity shall have issued an order, decree or ruling or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which order, decree, ruling or other action is final and nonappealable;
(d) by either the Company or Parent if the required approval of the shareholders of the Company contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at a meeting of the Company shareholders duly convened therefor or at any adjournment thereof; provided, however, that the right to terminate this Agreement under this Section 8.1(d) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or Company where the failure to obtain such shareholder approval shall have been caused by the action or failure to act of Company and such party action or failure to act constitutes a breach by the Company of this Agreement;
(e) by Parent (at any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or time prior to the Effective Time has been adoption and approval of this Agreement and the cause of, or resulted in, Merger by the failure required vote of the Effective Time shareholders of the Company) if a Triggering Event with respect to occur on or before the Parent Termination Date or the Company Termination Date, as applicableor a breach of Section 6.3 of this Agreement shall have occurred;
(df) by the Company if there shall have been Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of Parent shall have become untrue, in either case such that the conditions set forth in Section 7.3(a) or (bSection 7.3(b) of Section 7.3 would not be satisfied and, in either such case, as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided that if such inaccuracy in Parent’s representations and warranties or breach by Parent is not curable or shall not have been cured by Parent prior to the earlier End Date through the exercise of (Areasonable efforts, then the Company may not terminate this Agreement under this Section 8.1(f) ten (10) Business Days prior to 20 days following the receipt of written notice from the Company to Parent of such breach, provided that Parent continues to exercise all reasonable efforts to cure such breach to Parent and through such 20 day period (B) the Company Termination Date; provided it being understood that the Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(dparagraph (f) if the Company it shall have materially breached this Agreement or if such breach by Parent is then in material breach of any of its covenants or agreements contained in this Agreementcured within such 20 day period);
(eg) by Parent if there shall have been Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 7.2(a) or (bSection 7.2(b) of Section 7.2 would not be satisfied and, in either such case, as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided, that if such inaccuracy in the Company’s representations and warranties or breach by the Company is not curable or shall not have been cured by the Company prior to the earlier End Date through the exercise of (Areasonable efforts, then Parent may not terminate this Agreement under this Section 8.1(g) ten (10) Business Days prior to 20 days following the receipt of written notice of such breach from Parent to the Company and (B) the Parent Termination Date; of such breach, provided that the Company continues to exercise all reasonable efforts to cure such breach through such 20-day period (it being understood that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(eparagraph (g) if Parent it shall have materially breached this Agreement or Merger Sub if such breach by the Company is then in material breach of any of its covenants or agreements contained in this Agreementcured within such 20-day period); orand
(fh) by Parent at any time Parent, upon the occurrence of a Material Adverse Effect on the Company that (i) could not reasonably be expected to be cured by the Company prior to the End Date or (ii) is continuing as of the earlier of (x) the date on which the conditions set forth in Article VII have been satisfied or waived (other than those that by their terms are to be satisfied or waived at the Closing) and time (y) the End Date. For the purposes of this Agreement, a “Triggering Event,” with respect to the Company, shall be deemed to have occurred if: (i) its Board of Directors or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to Parent its unanimous recommendation in favor of the adoption and approval of this Agreement or the approval of the Merger, (ii) it shall have failed to include in the Proxy Statement the unanimous recommendation of its Board of Directors in favor of the adoption and approval of this Agreement and the approval of the Merger, (iii) its Board of Directors fails to reaffirm (publicly, if so requested) its recommendation in favor of the adoption and approval of this Agreement and the approval of the Merger within five business days after Parent requests in writing that such recommendation be reaffirmed, (iv) its Board of Directors or any committee thereof shall have approved or recommended any Acquisition Proposal, (v) the Company shall have entered into any letter of intent or similar document or any agreement, contract or commitment accepting any Acquisition Proposal; or (vi) a tender or exchange offer relating to its securities shall have been commenced by a Person unaffiliated with Parent and the Company shall not have sent to its security holders pursuant to Rule 14e-2 promulgated under the Exchange Act, within ten Business Days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company Requisite Vote is obtained and a copy Board of Directors of the written consent is delivered to ParentCompany recommends rejection of such tender or exchange offer.
Appears in 2 contracts
Sources: Merger Agreement (Captaris Inc), Merger Agreement (Castelle \Ca\)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after adoption thereof of this Agreement by the Stockholdersstockholders of Company:
(a) by mutual written consent of Parent and the CompanyCompany in a written instrument;
(b) by either Parent or the Company if any court Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Merger or the Bank Merger and such denial has become final and nonappealable or any Governmental Entity of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final nonappealable order, injunction or decree or ruling or taken any other final action restraining, permanently enjoining or otherwise prohibiting or making illegal the consummation of the Merger and such orderor the Bank Merger, decree, ruling or other action is or unless the failure to obtain a Requisite Regulatory Approval shall have become final and nonappealable; provided, however, that be due to the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to failure of the party seeking to terminate if this Agreement to perform or observe the covenants and agreements of such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8set forth herein;
(c) by either Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 the first anniversary of the date of this Agreement (the “Company Termination Date”); provided, however, that unless the right failure of the Closing to terminate this Agreement pursuant occur by such date shall be due to this Section 8.1(c) shall not be available to the failure of the party seeking to terminate if any action this Agreement to perform or observe the covenants and agreements of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableset forth herein;
(d) by either Parent or Company (provided, that the Company terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein) if there shall have been a breach of any representation, warranty, covenant of the covenants or agreement agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Parent Company, in the case of a termination by Parent, or Merger Sub contained Parent, in this Agreement the case of a termination by Company, which breach or failure to be true, either individually or in the aggregate with all other breaches by such that any party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in subsection (a) Section 7.2 or (b) of Section 7.3 would not be satisfied and7.3, in either such caseas the case may be, such breach and which is not curable or shall not have been cured prior to within the earlier of the Termination Date and forty-five (45) days following written notice to Company, in the case of a termination by Parent, or Parent, in the case of a termination by Company, or by its nature or timing cannot be cured during such period; or
(e) by Parent, if (i) prior to such time as the Requisite Company Vote is obtained, Company or the Company Board (A) effects an Adverse Recommendation Change or (B) materially breaches its obligations under Section 6.3 or Section 6.13; or (ii) a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock is commenced (other than by Parent or a Subsidiary thereof), and the Company Board recommends that the stockholders of Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such stockholders reject such tender offer or exchange offer within the ten (10) Business Days following written notice of such breach to Parent and (Bbusiness day period specified in Rule 14e-2(a) under the Company Termination Date; provided that the Company shall not have the right Exchange Act. The party desiring to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants clause (b), (c), (d), or agreements contained in this Agreement;
(e) by Parent if there of this Section 8.1 shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following give written notice of such breach termination to the Company and (B) other party in accordance with Section 9.5, specifying the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement provision or provisions hereof pursuant to this Section 8.1(e) if Parent or Merger Sub which such termination is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parenteffected.
Appears in 2 contracts
Sources: Merger Agreement (First Horizon National Corp), Merger Agreement (Capital Bank Financial Corp.)
Termination. This Agreement may be terminated and the Merger and the other transactions contemplated hereby by this Agreement may be abandoned at any time prior to the Effective TimeTime and notwithstanding that any requisite approval and adoption of this Agreement and the transactions contemplated hereby has been obtained prior to such termination, notwithstanding adoption thereof by the Stockholdersas follows:
(a) by mutual written consent duly authorized by the Boards of Parent and Directors of each of the Company, C GP and C Inc.;
(b) by Parent the Company, C GP and C Inc., by written notice to the other parties, if either (i) the Effective Time shall not have occurred on or before the Company if any court date specified in Section 9.01(b)(i) of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderA/B Merger Agreement, decree or ruling or taken any other final action restrainingas such date may be extended by the parties thereto; PROVIDED, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, howeverHOWEVER, that the right to terminate this Agreement pursuant to under this Section 8.1(b8.01(b) shall not be available to the any party seeking whose failure to terminate if such party or fulfill any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date; or (ii) any Order permanently enjoining, restraining or otherwise prohibiting the Parent Termination Date or consummation of the Company Termination Date, as applicableMerger shall have become final and nonappealable;
(dc) by C GP and C Inc., by written notice to the Company Company, if there shall have has been a breach of any representation, warranty, covenant or agreement on the part of Parent TW or Merger Sub contained the Company set forth in this Agreement or any ancillary agreement, or if any representation or warranty of TW or the Company shall have become untrue, in either case such that any condition the conditions set forth in subsection (aSection 8.02(a) or (bSection 8.02(b) of Section 7.3 would not be satisfied and("TERMINATING COMPANY BREACH"); PROVIDED, in either HOWEVER, that, if such case, such breach Terminating Company Breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) by the Company Termination Date; provided that within 30 days through the exercise of its best efforts and for so long as the Company shall continues to exercise such best efforts, C GP and C Inc. may not have the right to terminate this Agreement pursuant to under this Section 8.1(d8.01(c) if the Company is then in material breach of any of its covenants or agreements contained in this Agreementduring such 30-day period;
(ed) by Parent the Company, by written notice to C GP and C Inc., if there shall have has been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition C GP or C Inc. set forth in subsection (athis Agreement, or if any representation or warranty of C GP and C Inc. shall have become untrue, in either case such that the conditions set forth in Section 8.03(a) or (bSection 8.03(b) of Section 7.2 would not be satisfied and(a "TERMINATING C BREACH"); PROVIDED, in either HOWEVER, that, if such caseTerminating C Breach is curable by C GP and C Inc. within 30 days through the exercise of its best efforts and for so long as C GP and C Inc. continues to exercise such best efforts, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and may not terminate this Agreement under this Section 8.01(d) during such 30-day period; or
(Be) immediately without the Parent Termination Date; provided that Parent shall not have need for any further action by any of the parties hereto if the A/B Merger Agreement is terminated for any reason whatsoever. The right of any party hereto to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then 8.01 shall remain operative and in material breach full force and effect regardless of any investigation made by or on behalf of its covenants any party hereto, any person controlling any such party or agreements contained in any of their respective officers or directors, whether prior to or after the execution of this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Hawaiian Airlines Inc/Hi), Merger Agreement (Airline Investors Partnership Lp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, Time (notwithstanding adoption thereof any approval of this Agreement by the Stockholders:stockholders of the Company):
(a) by mutual written consent agreement of Parent the Company and the CompanyParent;
(b) by Parent or either the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderParent, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting if:
(i) the Merger and such order, decree, ruling has not been consummated on or other action before the date that is or shall have become final and nonappealablefour (4) months from the date hereof (the “End Date”); provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(b10.01(b)(i) shall not be available to any party whose breach of any provision of this Agreement results in the party seeking failure of the Merger to terminate if be consummated by such party time;
(ii) there shall be any restraining order, permanent injunction or other order issued by any Governmental Authority or other legal restraint or prohibition that (A) makes consummation of its Subsidiaries has failed to take the Merger illegal or otherwise prohibited or (B) enjoins the Company or Parent from consummating the Merger and such actions with respect thereto as are required to comply with Section 6.8;injunction shall have become final and nonappealable; or
(iii) at the Company Stockholder Meeting (including any adjournment or postponement thereof), the Company Stockholder Approval shall not have been obtained; or
(c) by Parent if the Merger Parent, if:
(i) an Adverse Recommendation Change shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicableoccurred;
(dii) by the Company if there shall have been a breach of any representation, warranty, covenant representation or agreement on the part of Parent warranty or Merger Sub contained in this Agreement such that failure to perform any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement such shall have occurred that would cause any condition set forth in subsection Section 9.02 not to be satisfied, and such condition is incapable of being cured or, if capable of being cured, shall not have been cured, within thirty (a30) or days after written notice thereof shall have been received by the Company; or
(biii) there shall have been an intentional and material breach of Section 7.2 6.02 or Section 6.03; or
(d) by the Company, if:
(i) the Board of Directors of the Company authorizes the Company, subject to complying with the terms of this Agreement, to promptly enter into a binding written definitive agreement concerning a Superior Proposal; provided that concurrently with such termination, the Company pays the Termination Fee payable pursuant to Section 11.04; and provided further that (i) the Company notifies Parent, in writing and at least five (5) Business Days prior to such termination, promptly of its intention to terminate this Agreement and to enter into a binding written definitive agreement concerning a Superior Proposal, attaching such definitive agreement, and (ii) if Parent makes an offer prior to the expiration of such five (5) Business Day period, the Board of Directors of the Company determines in good faith, after consultation with its financial advisors and outside legal counsel, that the Superior Proposal continues to be a Superior Proposal in light of Parent’s offer; or
(ii) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Parent or Merger Subsidiary set forth in this Agreement shall have occurred that would cause the condition set forth in Section 9.03(a) not to be satisfied andif continuing on the Closing Date, in either and such casecondition shall be incapable of being cured or, such breach is not curable or if capable of being cured, shall not have been cured prior to the earlier of within thirty (A30) ten (10) Business Days following days after written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent thereof shall not have the right been received by Parent. The party desiring to terminate this Agreement pursuant to this Section 8.1(e10.01 (other than pursuant to Section 10.01(a)) if Parent or Merger Sub is then in material breach shall give notice of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior such termination to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentother party.
Appears in 2 contracts
Sources: Merger Agreement (STG Ugp, LLC), Merger Agreement (MSC Software Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after receipt of the StockholdersCompany Stockholder Approval or the Parent Stockholder Approval (except as otherwise expressly noted), as follows:
(a) by mutual written consent agreement of each of Parent and the Company;; or
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderCompany, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;if:
(ci) by Parent if the Merger Effective Time shall not have been consummated occurred on or before September 15October 31, 2008 2011 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b)(i) shall not be available to the any party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any (and in the case of its Subsidiaries Parent, including the failure of Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the a principal cause of, or resulted in, the failure of the Effective Time Merger to occur be consummated on or before such date; or
(ii) any Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such Order or other action shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(ii) shall not be available to a party if the issuance of such final, non-appealable Order was primarily due to the failure of such party (and in the case of Parent, including the failure of Merger Sub) to perform any of its obligations under this Agreement; or
(iii) the Company Stockholder Approval shall not have been obtained at a duly held Company Stockholder Meeting or at any adjournment or postponement thereof at which this Agreement and the transactions contemplated hereby have been voted upon, provided that the right to terminate this Agreement under this Section 8.1(b)(iii) shall not be available to the Company if the failure to obtain such Company Stockholder Approval was primarily due to the Company’s failure to perform any of its obligations under this Agreement; or
(iv) the Parent Stockholder Approval shall not have been obtained at a duly held Parent Stockholder Meeting or at any adjournment or postponement thereof at which this Agreement and the transactions contemplated hereby have been voted upon, provided that the right to terminate this Agreement under this Section 8.1(b)(iv) shall not be available to Parent if the failure to obtain such Parent Stockholder Approval was primarily due to Parent’s failure to perform any of its obligations under this Agreement; or
(c) by the Company, if Parent or Merger Sub shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (x) would, or would reasonably be expected to, result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b) and (y) cannot be cured on or before the Parent Termination Outside Date or the Company Termination Dateor, as applicable;
(d) by the Company if there shall have been a breach of any representationcurable, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier by Parent within twenty (20) days of (A) ten (10) Business Days following receipt by Parent of written notice of such breach to Parent and (B) the Company Termination Dateor failure; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(c) if the Company is then in material breach of any of its respective representations, warranties, covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement such that the conditions set forth in either Section 7.2(a) or Section 7.2(b) would not be satisfied; or
(d) by Parent, if:
(i) the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (x) would, or would reasonably be expected to, result in a failure of a condition set forth in subsection (aSection 7.2(a) or Section 7.2(b) and (by) of Section 7.2 would cannot be satisfied andcured on or before the Outside Date or, in either such caseif curable, such breach is not curable or shall not have been cured prior to by the earlier Company within twenty (20) days of (A) ten (10) Business Days following receipt by the Company of written notice of such breach to the Company and (B) the Parent Termination Dateor failure; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e8.1(d)(i) if Parent or Merger Sub is are then in material breach of any of its their respective representations, warranties, covenants or agreements contained set forth in this Agreement; Agreement such that the conditions set forth in either Section 7.3(a) or Section 7.3(b) would not be satisfied, or
(fii) by Parent at (x) the Company Board shall have made an Adverse Recommendation Change, (y) the Company shall have materially or willfully breached any time prior to of its obligations under Section 6.3 and Section 6.5 or (z) the date and time Company enters into an Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.5), provided that the Company Requisite Vote is obtained right to terminate under Section 8.1(d)(ii)(x) and a copy (y) shall not be available after the receipt of the written consent is delivered to ParentCompany Stockholder Approval.
Appears in 2 contracts
Sources: Merger Agreement (Nationwide Health Properties Inc), Merger Agreement (Ventas Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after receipt of the StockholdersCompany Stockholder Approval (except as provided herein), only as follows:
(a) by mutual written consent agreement of Parent and the Company;; or
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger Effective Time shall not have been consummated occurred on or before September 15April 18, 2008 2016 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c7.1(b) shall not be available to the any party seeking hereto whose action or failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the principal cause of, of or resulted in, in the failure of the Effective Time to occur have occurred on or before the Termination Date; or
(c) by either Parent Termination Date or the Company Termination Date, as applicable;if the Company Stockholders Meeting shall have been held and the Company Stockholder Approval shall not have been obtained thereat or at any adjournment or postponement thereof; or
(d) by either Parent or the Company if there any Order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall have been become final and nonappealable (whether before or after the receipt of the Company Stockholder Approval); or
(e) by the Company in the event (i) of a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained Subsidiary set forth in this Agreement such or (ii) that any condition of the representations and warranties of Parent and Merger Subsidiary set forth in subsection (athis Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions set forth in Section 6.3(a) or (band Section 6.3(b) of Section 7.3 would not be satisfied andas of the time of such breach or as of the time such representation or warranty shall have become inaccurate; provided, however, that notwithstanding the foregoing, in either such case, the event that such breach is not by Parent or Merger Subsidiary or such inaccuracies in the representations and warranties of Parent or Merger Subsidiary are curable by Parent or Merger Subsidiary through the exercise of commercially reasonable efforts, then the Company shall not have been cured prior be permitted to terminate this Agreement pursuant to this Section 7.1(e) until the earlier to occur of (A) ten thirty (1030) calendar days after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (B) Parent or Merger Subsidiary ceasing or failing to exercise and continuing not to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 7.1(e) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day period); or
(f) by the Company in the event that after the Marketing Period has ended (i) all of the conditions set forth in Section 6.1 and Section 6.2 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing), (ii) Parent and Merger Subsidiary have failed to consummate the Merger at the Closing pursuant to Section 1.1, (iii) the Company has irrevocably notified Parent in writing that (A) the Company is ready, willing and able to consummate the Merger, and (B) all conditions set forth in Section 6.3 have been and continue to be satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing) or that it is willing to waive any unsatisfied conditions set forth in Section 6.3, (iv) the Company has given Parent written notice at least three (3) Business Days following written notice prior to such termination stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) if Parent and Merger Subsidiary fail to consummate the Merger, and (iv) Parent and Merger Subsidiary fail to consummate the Merger on the later of the expiration of such three (3) Business Day period and the date set forth in the foregoing notice; or
(g) by the Company at any time prior to the time the Company Stockholder Approval is obtained, if (i) the Company Board authorizes the Company, subject to complying in all respects with the terms of Section 5.3 (other than any immaterial or inadvertent breaches thereof not intended to result in an Acquisition Proposal), to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal; (ii) concurrently with the termination of this Agreement the Company enters into an Alternative Acquisition Agreement with respect to such Superior Proposal; and (iii) concurrently with the termination of this Agreement the Company pays to Parent the Company Termination Fee in accordance with Section 7.4(a)(ii); or
(h) by Parent in the event (i) of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or (ii) that any of the representations and warranties of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions set forth in Section 6.2(a) or Section 6.2(b), as applicable, would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, as applicable; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.1(h) until the earlier to occur of (A) thirty (30) calendar days after delivery of written notice from the Parent and to the Company of such breach or inaccuracy, as applicable or (B) the Company Termination Dateceasing to exercise and continuing not to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent and Merger Subsidiary may not terminate this Agreement pursuant to this Section 7.1(h) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period); provided or
(i) by Parent in the event that the Company Board (or any committee thereof) shall have effected and not have the withdrawn a Change of Recommendation; provided, however, that that Parent’s right to terminate this Agreement pursuant to this Section 8.1(d7.1(i) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representationwill expire at 5:00 p.m., warrantyCentral time, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection tenth (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (1010th) Business Days Day following written notice of the date on which such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentfirst arose.
Appears in 2 contracts
Sources: Merger Agreement (SolarWinds, Inc.), Merger Agreement (SolarWinds, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby and the other Transactions may be abandoned at any time prior to (except as otherwise provided below, whether before or after receipt of the Effective TimeCompany Shareholder Approval or Parent Shareholder Approval, notwithstanding adoption thereof by the Stockholdersif applicable) only as follows:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company Company, prior to the Effective Time, if there has been a breach by the other Party or Parties of any court representation, warranty, covenant or agreement set forth in this Agreement, which breach (i) in the case of competent jurisdiction a breach by the Company, would result in the conditions in Section 8.2(a) or other Governmental Entity having jurisdiction over Section 8.2(b) not being satisfied and (ii) in the Company case of a breach by Parent or Merger Sub, would result in the conditions in Section 8.3(a) or Section 8.3(b) not being satisfied (and in each case such breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (x) thirty (30) calendar days after the receipt of notice thereof by the defaulting Party from the non-defaulting Party or (y) three (3) business days before the Outside Date); provided, however, this Agreement may not be terminated pursuant to this Section 9.1(b) by any Party if such Party is then in material breach of any representation, warranty, covenant or agreement set forth in this Agreement;
(c) by either Parent or the Company, if the Effective Time shall not have issued a final orderoccurred by 11:59 pm, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting New York time on the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableOutside Date; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b9.1(c) shall not be available to any Party whose breach of any representation, warranty, covenant or agreement set forth in this Agreement has been the party seeking cause of, or resulted in, the Effective Time not occurring prior to terminate the Outside Date;
(d) by the Company at any time prior to the receipt of the Parent Shareholder Approval, if (i) the Parent Board shall have effected a Parent Adverse Recommendation Change, (ii) the Parent Shareholder Meeting shall not have been called and held as required by Section 6.5(d) within sixty (60) days following such party time as the Form S-4 shall have been declared effective (except to the extent that such failure to hold the meeting within such time, or any of its Subsidiaries has failed to take such actions with respect thereto as are an adjournment thereof, was required to comply with applicable Law or has been consented to by the Company), or (iii) upon any material breach by Parent of its obligations pursuant to Section 6.86.4; provided, that, in the case of clause (i) the exercise of such termination right by the Company must occur within ten (10) business days of the Parent Adverse Recommendation Change and in the case of clause (iii) such material breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (x) ten (10) calendar days after the receipt of notice thereof by Parent from the Company or (y) three (3) business days before the Outside Date (provided that any such material breach of Section 6.4 that results in a Competing Proposal that is publicly disclosed shall not be curable);
(ce) by Parent at any time prior to the receipt of the Company Shareholder Approval, if (i) the Merger Company Board shall have effected a Company Adverse Recommendation Change, (ii) the Company Shareholder Meeting shall not have been consummated on called and held as required by Section 6.5(c) within sixty (60) days following such time as the Form S-4 shall have been declared effective (except to the extent that such failure to hold the meeting within such time, or before September 15an adjournment thereof, 2008 (the “Parent Termination Date”was required to comply with applicable Law or has been consented to by Parent), or (iii) upon any material breach by the Company of its obligations pursuant to Section 6.4; provided, that, in the case of clause (i) the exercise of such termination right by Parent must occur within ten (10) business days of the Company Adverse Recommendation Change and in the case of clause (iii) such material breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (x) ten (10) calendar days after the receipt of notice thereof by the Company from Parent or (y) three (3) business days before the Outside Date (provided that any such material breach of Section 6.4 that results in a Competing Proposal that is publicly disclosed shall not be curable);
(f) by either the Company or Parent if a Governmental Entity of competent jurisdiction, shall have issued a final, non-appealable order, decree or ruling in each case permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)other Transactions; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c9.1(f) shall not be available to the party seeking any Party whose failure to terminate if comply with any action provision of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on such order, decree or before the Parent Termination Date or the Company Termination Date, as applicableruling;
(dg) by either the Company or Parent, if there shall have been a breach the Company Shareholder Approval in favor of any representation, warranty, covenant or agreement on the part approval of Parent or the Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) obtained at the Company Termination DateShareholder Meeting or at any adjournment or postponement thereof, in each case at which a vote on such approval was taken; provided that or
(h) by either the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) or Parent, if the Company is then Parent Shareholder Approval in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part favor of the Company contained approval of the issuance of Parent Common Shares in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or connection with the Merger shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) obtained at the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent Shareholder Meeting or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and adjournment or postponement thereof, in each case at which a copy of the written consent is delivered to Parentvote on such approval was taken.
Appears in 2 contracts
Sources: Merger Agreement (Chambers Street Properties), Merger Agreement (Gramercy Property Trust Inc.)
Termination. This Notwithstanding any other provision of this Agreement, this Agreement may be terminated and the Merger contemplated hereby may be Transaction abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by mutual written consent of Parent Parent, TPB and the Company;Shareholder Representative (on behalf of the Transaction Shareholders); or
(b) by Parent or Parent, if the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over Estimated Closing NBV presented on the Company shall have issued a final orderPre-Closing Date Balance Sheet is less than the Baseline NBV, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply in accordance with Section 6.8;2.04(a)(ii); or
(c) by Parent if or the Merger shall Shareholder Representative in the event of an inaccuracy of any representation or warranty contained in this Agreement that cannot have be or has not been consummated on or before September 15cured within ten (10) days after the giving of written notice to the breaching Party of such inaccuracy, 2008 (and it is reasonably likely, in the “Parent Termination Date”), or by opinion of the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, howevernon-breaching Party, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure satisfaction of the Effective Time to occur on conditions set forth in Sections 8.02(a) or before the Parent Termination Date or the Company Termination DateSection 8.03(a), as applicable;, will be impossible as a result of such inaccuracy; or
(d) by Parent or the Company if there shall have Shareholder Representative in the event of a material breach by the breaching Party of any covenant, agreement or other obligation contained in this Agreement that cannot be or has not been a cured within ten (10) days after the giving of written notice to the breaching Party of such breach; or
(e) by Parent or the Shareholder Representative (provided that the terminating party is not then in material breach of any representation, warranty, covenant covenant, agreement or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements other obligation contained in this Agreement;
(e) by Parent if there any consent or approval of any Regulatory Authority required for consummation of the Transaction shall have been a breach denied by final non-appealable action of such authority or if any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement action taken by such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach Regulatory Authority is not curable or shall not have been cured prior to appealed within the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreementtime limit for appeal; or
(f) by Parent at if, notwithstanding any time prior disclosures in the Schedules or otherwise, (i) there shall have occurred any Material Adverse Effect with respect to the TPB Companies, or (ii) any facts or circumstances shall develop or arise after the date of this Agreement that are reasonably likely to cause or result in any Material Adverse Effect with respect to the TPB Companies, and time such Material Adverse Effect (or such facts or circumstances) shall not have been remedied within ten (10) days after receipt by the TPB Parties of notice in writing from Parent specifying the nature of such Material Adverse Effect and requesting that it be remedied; or
(g) by Parent or the Company Requisite Vote Shareholder Representative if the Closing shall not have occurred on or before 270 days following the date of this Agreement, if the failure to consummate the Transaction on or before such date is obtained and not caused by (i) a copy delay in receipt of any Consents of any Regulatory Authorities or (ii) any breach of this Agreement by the Party electing to terminate pursuant to this Section 9.01(g); or
(h) by Parent or the Shareholder Representative if any of the written consent is delivered conditions precedent to Parentthe obligations of such party to consummate the Transaction cannot be satisfied or fulfilled by the date specified in Section 9.01(g), and such failure was not the fault of the terminating Party.
Appears in 2 contracts
Sources: Stock Purchase and Affiliate Merger Agreement, Stock Purchase and Affiliate Merger Agreement (First Us Bancshares Inc)
Termination. This Agreement may be terminated and the Merger Mergers contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof approval by the Stockholdersstockholders of BioLite and BioKey:
(a) by mutual written consent of Parent Parent, each Merger Sub, BioLite and the CompanyBioKey;
(b) by Parent Parent, BioLite, or the Company BioKey if any court of competent jurisdiction or other Governmental Entity Body located or having jurisdiction over within the Company United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger Mergers and such order, decree, ruling or other action is or shall have become final and nonappealable; provided;
(c) by Parent, BioLite, or BioKey prior to the Effective Time, if the Effective Time shall not have occurred on or before July 31, 2018 (the “Termination Date“), provided that, the Termination Date may be extended upon the written consent of the Parties (which, for the avoidance of doubt, will not require any shareholder approval) provided further, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c9.1(c) shall not be available to the party seeking to terminate if any action of such party or any (or, in the case of its Subsidiaries Parent, either Merger Sub) or the failure of such party or any (or, in the case of its Subsidiaries Parent, either Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date and such action or the Company Termination Date, as applicablefailure to perform constitutes a breach of this Agreement;
(d) by the Company BioLite if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent Parent, BioKey or either Merger Sub contained in this Agreement such that any a condition set forth in subsection (a) Section 8.1 or (b) of Section 7.3 8.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten fifteen (1015) Business Days days following written notice of such breach to Parent or BioKey, as applicable, and (B) the Company Termination Date; provided that the Company BioLite shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(d) if the Company BioLite is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by BioKey if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent, BioLite or either Merger Sub contained in this Agreement such that a condition set forth in Section 8.1 or 8.4 would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) fifteen (15) days following notice of such breach to Parent or BioLite, as applicable, and (B) the Termination Date; provided that BioKey shall not have the right to terminate this Agreement pursuant to this Section 9.1(d) if BioKey is then in material breach of any of its covenants or agreements contained in this Agreement;
(f) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company BioLite or BioKey contained in this Agreement such that any a condition set forth in subsection (a) Section 8.1 or (b) of Section 7.2 8.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten fifteen (1015) Business Days days following written notice of such breach to the Company BioLite or BioKey, as applicable, and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(f) if Parent or either Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement;
(g) by BioLite in accordance with the terms and subject to the conditions of Section 7.4; or
(fh) by BioKey in accordance with the terms and subject to the conditions of Section 7.5;
(i) by Parent at any time prior to in the date and time that the Company Requisite Vote is obtained and event a copy of the written consent is delivered to ParentBioLite Adverse Recommendation Change or BioKey Adverse Recommendation Change has occurred.
Appears in 2 contracts
Sources: Merger Agreement (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by the mutual written consent of Parent and the Company;
(b) by either Parent or the Company if any court there shall be in effect a final non-appealable order of competent jurisdiction or other a Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the consummation of the Merger and such orderor making the consummation of the Transactions illegal, decree, ruling or other action is or shall have become final and nonappealable; provided, however, however that the right to terminate this Agreement pursuant to this Section 8.1(b9.01(b) shall not be available to the any party seeking to terminate whose breach of any provision of this Agreement results in or causes such order or other action or if such party or it has breached its obligations under this Agreement in any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;material respect.
(c) by Parent Parent, if any of the representations or warranties of the Company set forth in Article III shall not be true and correct, or if the Merger shall not have been consummated Company has failed to perform any covenant or agreement on or before September 15, 2008 the part of the Company set forth in this Agreement (including an obligation to consummate the “Parent Termination Date”Closing), such that the conditions to the Closing set forth in either Section 7.01(a) or by Section 7.01(b) would not be satisfied as of the Closing Date and the breach or breaches causing such representations or warranties not to be true and correct, or the failure to perform any covenant or agreement, as applicable, are not cured within twenty (20) Business Days after written notice thereof is delivered to the Company; provided that a failure to obtain Company if Requisite Approval within ten (10) Business Days after the Merger shall not have been consummated date of this Agreement, pursuant to Section 5.05(b), will give rise to an immediate right to terminate on or before September 30, 2008 (the “Company Termination Date”)behalf of Parent; provided, howeverfurther, that the right to terminate Parent and/or Merger Sub is not then in breach of this Agreement pursuant so as to this cause the conditions to the Closing set forth in either Section 8.1(c7.02(a) shall or Section 7.02(b) to not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure satisfied as of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Closing Date, as applicable;
(d) by the Company Company, if there any of the representations or warranties of Parent or Merger Sub set forth in Article IV shall have been a breach of not be true and correct, or if Parent or Merger Sub has failed to perform any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained Sub, respectively, set forth in this Agreement (including an obligation to consummate the Closing), such that any condition the conditions to the Closing set forth in subsection (aeither Section 7.02(a) or (bSection 7.02(b) of Section 7.3 would not be satisfied andas of the Closing Date and the breach or breaches causing such representations or warranties not to be true and correct, in either such caseor the failures to perform any covenant or agreement, such breach is as applicable, are not curable or shall not have been cured prior to the earlier of within twenty (A) ten (1020) Business Days following after written notice of such breach thereof is delivered to Parent and (B) the Company Termination Dateor Merger Sub; provided that the Company shall is not have the right to terminate then in breach of this Agreement pursuant so as to this cause the conditions to the Closing set forth in Section 8.1(d7.01(a) if or Section 7.01(b) to not be satisfied as of the Company is then in material breach of any of its covenants or agreements contained in this AgreementClosing Date;
(e) by Parent the Company, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or Transactions shall not have been cured consummated on or prior to three (3) months following the earlier date of this Agreement (Asuch date, the "Outside Date") ten (10) Business Days following written notice of such breach to and the Company and (B) the Parent Termination Date; provided that Parent Securityholders shall not have the right to terminate breached in any material respect any of their obligations under this Agreement pursuant in any manner that shall have proximately caused the failure to this Section 8.1(e) if Parent consummate the Transactions on or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreementbefore the Outside Date; orand
(f) by Parent at any time Parent, if the Transactions shall not have been consummated on or prior to the date Outside Date and time Parent shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately caused the Company Requisite Vote is obtained and a copy of failure to consummate the written consent is delivered to ParentTransactions on or before the Outside Date.
Appears in 2 contracts
Sources: Merger Agreement (Nordhagen Arlen Dale), Merger Agreement (National Storage Affiliates Trust)
Termination. This Notwithstanding any other provision of this Agreement, and notwithstanding the approval of this Agreement by the shareholders of Target, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by By mutual written consent agreement of Parent Buyer and the CompanyTarget;
(b) by Parent or By either Party in the Company if event (i) any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued Regulatory Authority has denied a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger Requisite Regulatory Approval and such order, decree, ruling or other action is or shall have denial has become final and nonappealable; provided, however, provided that the right Party seeking to terminate this Agreement pursuant to this Section 8.1(b9.1(b)(i) shall not be available have used its reasonable best efforts to contest, appeal and change such denial; or (ii) any Law or Order permanently restraining, enjoining or otherwise prohibiting the party seeking to terminate if such party or any consummation of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15become final and nonappealable, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, provided that the right Party seeking to terminate this Agreement pursuant to this Section 8.1(c9.1(b)(ii) shall have used its reasonable best efforts to contest, appeal and remove such Law or Order;
(c) By either Party in the event that the Merger shall not be available to the party seeking to terminate have been consummated by November 30, 2011, if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to consummate the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur transactions contemplated hereby on or before such date is not caused by any breach of this Agreement by the Parent Termination Date or the Company Termination Date, as applicableParty electing to terminate pursuant to this Section 9.1(c);
(d) By Buyer in the event that the board of directors of Target has (i) failed to recommend to the shareholders of Target that they give the Target Shareholder Approval, (ii) effected a Change in the Target Recommendation, whether or not permitted by the Company if terms hereof or (iii) knowingly and materially breached its obligations under Section 7.1(b) or 7.2 hereof;
(e) By Target in the event that there shall have been a breach of any representation, warranty, covenant of the covenants or agreement agreements or any of the representations or warranties set forth in this Agreement on the part of Parent Buyer, which breach, either individually or Merger Sub contained in this Agreement such that any condition the aggregate, would result in, if occurring or continuing on the Closing Date, the failure of the conditions set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and8.3, in either such case, such breach and which is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days within 45 days following written notice of to Buyer or by its nature or timing cannot be cured within such breach to Parent and time period (B) the Company Termination Date; provided that the Company shall Target is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in breach, in any material breach of respect, any of its material covenants or agreements contained in this Agreement;); or
(ef) by Parent if By Buyer in the event that there shall have been a breach of any representation, warranty, covenant of the covenants or agreement agreements or any of the representations or warranties set forth in this Agreement on the part of Target, which breach, either individually or in the Company contained in this Agreement such that any condition aggregate, would result in, if occurring or continuing on the Closing Date, the failure of the conditions set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and8.2, in either such case, such breach and which is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days within 45 days following written notice of to Target or by its nature or timing cannot be cured within such breach to the Company and time period (B) the Parent Termination Date; provided that Parent shall Buyer is not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in breach, in any material breach of respect, any of its material covenants or agreements contained in this Agreement); or
(g) By either Party in the event that the shareholders of Target fail to vote their approval of the matters relating to this Agreement and the transactions contemplated hereby at the Shareholders’ Meeting where such matters were presented to such shareholders for approval and voted upon. The party desiring to terminate this Agreement pursuant to clause (b), (c), (d), (e), (f) by Parent at any time prior or (g) of this Section 9.1 shall give written notice of such termination to the date and time that other party in accordance with Section 10.9, specifying the Company Requisite Vote provision or provisions hereof pursuant to which such termination is obtained and a copy of the written consent is delivered to Parenteffected.
Appears in 2 contracts
Sources: Merger Agreement (Sterling Bancshares Inc), Merger Agreement (Comerica Inc /New/)
Termination. (a) This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to before the Effective Appointment Time, notwithstanding adoption thereof by the Stockholders:
(ai) by mutual written consent of either Parent and the Company;
(bby duly authorized action) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over (by action duly authorized by the Company Board of Directors) if the Appointment Time shall not have issued a final orderoccurred by midnight, decree New York City time on the Initial Outside Date or ruling or taken any other final action restrainingExtended Outside Date, enjoining or otherwise prohibiting as the Merger and such order, decree, ruling or other action is or shall have become final and nonappealablecase may be; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b8.1(a)(i) shall not be available to the any party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a whose material breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained set forth in this Agreement has been the principal cause of, or resulted in, Purchaser's failure to accept for payment all such Shares tendered pursuant to the Offer prior to the Initial Outside Date or Extended Outside Date, as the case may be;
(ii) by Parent, in the event that (A)(1) any condition representation or warranty of the Company set forth in subsection this Agreement shall have been inaccurate when made or shall have become inaccurate such that the condition to the Offer set forth in clause (ac) of Annex I is not capable of being satisfied by the Initial Outside Date or Extended Outside Date, as applicable, or (b2) any covenant or agreement of the Company set forth in this Agreement shall have been breached such that the condition to the Offer set forth in clause (e) of Section 7.3 would not be satisfied and, in either such case, such breach Annex I is not curable capable of being satisfied by the Initial Outside Date or Extended Outside Date, as applicable, (B) Parent shall have delivered to the Company written notice of the inaccuracy in such representation or warranty of the Company or of the breach of such covenant or agreement by the Company, and (C) if such inaccuracy or breach, as applicable, is capable of being cured, at least twenty (20) days shall have elapsed since the delivery of such written notice to the Company and such inaccuracy or breach, as applicable, shall not have been cured prior such that the conditions to the earlier Offer set forth in clause (c) or clause (e) of Annex I, as applicable, would be satisfied by the Initial Outside Date or Extended Outside Date, as applicable;
(iii) by Parent, if (A) ten the Company Board of Directors or any committee thereof shall have effected a Company Change in Recommendation (10) Business Days following written notice of such breach to Parent and whether or not in compliance with Section 5.3), (B) the Company Termination Date; provided shall have violated or breached (or be deemed pursuant to the terms thereof, to have violated or breached) in any material respect the provisions of Section 5.2, (C) the Company Board of Directors or any committee thereof shall have approved or recommended (or proposed publicly to approve or recommend) any Acquisition Proposal (whether or not a Superior Proposal) other than the Transactions, (D) if, after a tender offer or exchange offer that, if successful, would result in any Person or "group" (as defined in our under Section 13(d) of the Exchange Act) becoming a beneficial owner of twenty percent (20%) or more of the outstanding Shares is commenced (other than by Parent or Purchaser), the Company Board of Directors shall have failed to recommend that the Company's stockholders not tender their Shares in such tender or exchange offer within ten (10) business days after commencement of such tender offer or exchange offer, (E) the Company shall not have the right failed to terminate this Agreement pursuant to this Section 8.1(d) if include the Company is then Recommendation in material breach the Schedule 14D-9 or to permit Parent and Purchaser to include the Company Recommendation in the Offer Documents, or (F) the Company Board of Directors shall have failed to reconfirm the Company Recommendation promptly, and in any event within five (5) business days following Parent's request to do so;
(iv) by the Company if Purchaser shall have failed to commence (within the meaning of its covenants or agreements contained in Rule 14d-2 under the Exchange Act) the Offer within ten (10) business days after the date of this Agreement;
(ev) by the Company, in the event that (A)(1) any representation or warranty of Parent if there or Purchaser set forth in this Agreement shall have been a breach of inaccurate when made or shall have become inaccurate in any representationmaterial respect, warranty, or (2) any covenant or agreement on the part of the Company contained Parent or Purchaser set forth in this Agreement shall have been breached in any material respect, (B) the Company shall have delivered to Parent written notice of the inaccuracy in such that any condition set forth in subsection representation or warranty of Parent or Purchaser or of the breach of such covenant or agreement by Parent or Purchaser, as applicable, and (aC) if such inaccuracy or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable capable of being cured, at least twenty (20) days shall have elapsed since the delivery of such written notice to Parent and such inaccuracy or breach, as applicable, shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreementcured; or
(fvi) by the Company if the Company Board of Directors has effected a Company Change in Recommendation in response to a Superior Proposal pursuant to and in compliance with Section 5.3(c)(A) and immediately prior to the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 8.2(b) hereof.
(b) This Agreement also may be terminated and the Transactions may be abandoned at any time prior to before the date Effective Time, whether before or after stockholder approval thereof: (i) if a court of competent jurisdiction or other Governmental Entity of competent jurisdiction located within the United States shall have issued a final, non-appealable order, decree or ruling in each case permanently restraining, enjoining or otherwise prohibiting the Transactions; or (ii) by mutual written consent of Parent and time that the Company Requisite Vote is obtained duly authorized by the Company Board of Directors and a copy the Parent Board of the written consent is delivered to ParentDirectors.
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Mergers may be abandoned at any time prior to the Company Merger Effective Time, notwithstanding adoption thereof whether before or after the receipt of Company Stockholder Approval (unless otherwise specified in this Section 9.1), by action taken or authorized by the StockholdersParent Board or the Company Board, as applicable, as follows:
(a) by the mutual written consent of Parent and the Company;
(b) by Parent or either the Company if any court or Parent, by written notice to the other Party:
(i) if, upon the completion of competent jurisdiction or other Governmental Entity having jurisdiction over the voting at the Company shall have issued a final orderStockholder Meeting, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action Company Stockholder Approval is or shall have become final and nonappealablenot obtained; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.1(b)(i) shall not be available to the party seeking Company if the failure to terminate if obtain such party Company Stockholder Approval was primarily caused by any action or failure to act of any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with the Company Parties that constitutes a material breach of their respective obligations under Section 6.87.1 or Section 7.4;
(cii) by Parent if any Governmental Authority of competent jurisdiction shall have issued an order, decree, judgment, injunction or taken any other action, which permanently restrains, enjoins or otherwise prohibits or makes illegal the consummation of the Mergers, and such order, decree, judgment, injunction or other action shall have become final and non-appealable; or
(iii) if the Merger consummation of the Mergers shall not have been consummated occurred on or before September 15, 2008 5:00 p.m. (New York time) on the date that is six (6) months after the date of this Agreement (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Drop Dead Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b)(iii) shall not be available to the party seeking any Party whose failure to terminate if comply with any action provision of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, or resulted in, the failure of the Effective Time Mergers to occur on or before the Drop Dead Date;
(c) by Parent Termination Date or upon written notice from Parent to the Company, if any of the Company Termination Parties breaches or fails to perform any of its representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform, either individually or in the aggregate, would result in, if occurring or continuing on the Closing Date, as applicablethe failure to be satisfied of a condition set forth in Section 8.2(a) or Section 8.2(b) and such breach or failure to perform is incapable of being cured by the earlier of (i) thirty (30) days after such notice is given or (ii) two (2) Business Days prior to the Drop Dead Date or, if capable of being cured by such earlier date, is not cured by the Company Parties before such earlier date; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c) if Parent or Merger Sub is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement such that the conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied;
(d) by the Company upon written notice from the Company to Parent, if there shall have been a breach any of the Parent Parties breaches or fails to perform any representationof its representations, warrantywarranties, covenant covenants or agreement on the part of Parent or Merger Sub agreements contained in this Agreement such that any Agreement, which breach or failure to perform, either individually or in the aggregate, would result in, if occurring or continuing on the Closing Date, the failure to be satisfied of a condition set forth in subsection (aSection 8.3(a) or (bSection 8.3(b) of Section 7.3 would not be satisfied and, in either such case, and such breach or failure to perform is not curable or shall not have been incapable of being cured prior to by the earlier of (Ai) ten thirty (1030) days after such notice is given or (ii) two (2) Business Days following written notice prior to the Drop Dead Date or, if capable of being cured by such breach to earlier date, is not cured by the Parent and (B) the Company Termination DateParties before such earlier date; provided provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(d) if the Company or the Partnership is then in material breach of any of its representations, warranties, covenants or agreements contained set forth in this AgreementAgreement such that the conditions set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied;
(e) by Parent if there shall have been a breach of the Company upon written notice from the Company to Parent, at any representation, warranty, covenant or agreement on time prior to the part receipt of the Company contained Stockholder Approval, in order to enter into an Acquisition Agreement with respect to a Superior Proposal in compliance with Section 7.4(a)(iv); provided, however, that this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would may not be satisfied and, so terminated unless the payment required by Section 9.3(b) is made in either such case, such breach is not curable or shall not have been cured full to Parent prior to or concurrently with the earlier occurrence of such termination and entry into such Acquisition Agreement with respect to such Superior Proposal; or
(Af) ten (10) Business Days following by Parent upon written notice of such breach from Parent to the Company, (i) if a Change in Company and (B) the Parent Termination DateRecommendation shall have occurred; provided provided, however, that Parent shall not have the Parent’s right to terminate this Agreement pursuant to this Section 8.1(e9.1(f)(i) in respect of a Change in Company Recommendation shall expire if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that when the Company Requisite Vote Stockholder Approval is obtained and obtained, or (ii) upon a copy Willful Breach of Section 7.4 by the written consent is delivered to ParentCompany.
Appears in 2 contracts
Sources: Merger Agreement (CatchMark Timber Trust, Inc.), Merger Agreement (Potlatchdeltic Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholdersabandoned:
(a) by mutual written consent of Parent and the CompanyCompany at any time prior to the Closing;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;Company:
(ci) by Parent if the Merger Effective Time shall not have been consummated occurred by 5:00 p.m. (Eastern Time) on or before September 15January 25, 2008 2018 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b)(i) shall not be available to the party seeking any Party whose failure to terminate if fulfill any action of such party covenant or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under agreement contained in this Agreement required to be performed at or prior to the Effective Time has been the a principal cause of, or resulted in, the failure of the Effective Time to occur have occurred on or before the Parent Termination Date or the Company Termination Date, as applicableby such date;
(dii) if any Judgment shall be in effect and shall have become final and non-appealable that permanently restrains, enjoins or otherwise prohibits, prior to the Closing, the consummation of the Merger; provided that the Party terminating this Agreement shall have used its reasonable best efforts to resist, appeal, resolve or lift such Judgment, and shall have complied in all material respects with Section 6.4; or
(iii) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the approval of this Agreement was taken.
(c) by the Company Company:
(i) at any time prior to the Closing, if there shall have been a material breach of any representation, warranty, covenant or agreement on the part of by Parent or Merger Sub contained in this Agreement such that of any condition of its representations, warranties or covenants set forth in subsection (athis Agreement, such that either of the conditions set forth in Section 7.3(a) or (bSection 7.3(b) of Section 7.3 would not be satisfied andsatisfied, in either such case, such which breach is incapable of being cured by the Outside Date or is not curable or shall not have been cured prior to the earlier of (A) ten (10) within 10 Business Days following after Parent receives written notice of such breach from the Company; or
(ii) at any time prior to obtaining the Company Stockholder Approval, in order to enter into a definitive, written agreement for an Acquisition Proposal that constitutes a Superior Proposal in compliance with the terms of this Agreement, including the requirements of Section 6.5, and prior to or concurrently with such termination, the Company pays to Parent and the Company Termination Fee pursuant to Section 8.2(c).
(d) by Parent:
(i) at any time prior to the Closing, if there shall have been a material breach by the Company of any of its representations, warranties or covenants set forth in this Agreement, such that the either of the conditions set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied, which breach is incapable of being cured by the Outside Date or is not cured by the Company within 10 Business Days after the Company receives written notice of such breach from Parent or Merger Sub; or
(ii) at any time prior to obtaining the Company Stockholder Approval, if the Company Board shall (A) effect a Change in Company Recommendation or (B) fail to publicly reaffirm the Company Termination Date; provided Recommendation within 10 Business Days after Parent or Merger Sub so requests in writing (it being understood that the Company Parent shall not have the right only make such request once with respect to any Acquisition Proposal or any material and publicly proposed or disclosed amendment thereto). The Party desiring to terminate this Agreement pursuant to this Section 8.1(d8.1 (other than pursuant to Section 8.1(a)) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following give written notice of such breach termination to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentother Party.
Appears in 2 contracts
Sources: Merger Agreement (Forestar Group Inc.), Merger Agreement (Horton D R Inc /De/)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after the Stockholdersrequisite approval of the shareholders of the Company and Parent:
(a) by mutual written consent duly authorized by the Boards of Directors of Parent and the Company;
(b) by Parent or either the Company or Parent if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and shall not have been consummated by September 30, 2007 (such orderdate, decreeor such other date that may be agreed by mutual written consent, ruling or other action is or shall have become final and nonappealablebeing the “Outside Date”) for any reason; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in the party seeking failure of the Merger to terminate occur on or before such date if such party action or any failure to act constitutes a breach of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8this Agreement;
(c) by either the Company or Parent if a Governmental Entity shall have issued an order, decree or ruling or taken any other action, in any case having the Merger effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which order, decree, ruling or other action shall have become final and nonappealable or any law, order, rule or regulation is in effect or is adopted or issued, which has the effect of prohibiting the merger;
(d) by either the Company or Parent if either: (i)(A) the Company Shareholders’ Meeting (including any adjournments thereof) shall have been held and completed and the shareholders of Company shall have taken a final vote on a proposal to adopt this Agreement and (B) the required approval of the shareholders of Company contemplated by this Agreement shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)obtained; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(d) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or Company where the failure to obtain Company stockholder approval shall have been caused by the action or failure to act of Company, respectively, and such party action or any of its Subsidiaries failure to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) act constitutes a breach by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been Company, upon a breach of any representationcovenant or agreement on the part of the Parent set forth in this Agreement, warrantyor if any representation or warranty of Parent shall have been untrue when made or shall have become untrue, in either case such that the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided, that if such inaccuracy in Parent’s representations and warranties or breach by Parent is curable by Parent through exercise of its commercially reasonable efforts, then the Company may not terminate this Agreement pursuant to this Section 7.1(e) for thirty (30) days after delivery of written notice from the Company to Parent of such breach, provided, that Parent continues to exercise commercially reasonable efforts to cure such breach (it being understood that Company may not terminate this Agreement pursuant to this Section 7.1(e) if such breach by Parent is cured during such thirty-day period);
(f) by Parent, upon a breach of any covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of the Company shall have been untrue when made or shall have become untrue, in either case such that the conditions set forth in Section 6.3(a) or (bSection 6.3(b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice time of such breach to or as of the time such representation or warranty shall have become untrue, provided, that if such inaccuracy in Company’s representations and warranties or breach by Company and (B) the is curable by Company through exercise of its commercially reasonable efforts, then Parent Termination Date; provided that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(e7.1(f) for thirty (30) days after delivery of written notice from Parent to the Company of such breach, provided, that the Company continues to exercise commercially reasonable efforts to cure such breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(f) if Parent or Merger Sub such breach by the Company is then in material breach of any of its covenants or agreements contained in this Agreement; orcured during such thirty-day period);
(fg) by Parent if a Triggering Event (as defined below) shall have occurred.; and for the purposes of this Agreement, a “Triggering Event” shall be deemed to have occurred if: (i) the Board of Directors of the Company or any committee thereof shall for any reason have withheld, withdrawn or refrained from making or shall have modified, amended or changed in a manner adverse to Parent its recommendation in favor of the adoption of this Agreement or the approval of the Merger; (ii) the Company shall have failed to include in the Joint Proxy Statement/Prospectus the recommendation of the Board of Directors of Company in favor of the adoption of this Agreement and the approval of the Merger; (iii) the Board of Directors of the Company fails to reaffirm its recommendation in favor of the adoption of this Agreement within ten (10) business days after Parent requests in writing that such recommendation be reaffirmed at any time following the public announcement and during the pendency of an Acquisition Proposal; (iv) the Board of Directors of the Company or any committee thereof shall have recommended to the shareholders of the Company or approved any Acquisition Proposal; (v) the Company shall have entered into any agreement or contract accepting any Acquisition Proposal; (vi) the Company shall have breached any of the provisions of Section 5.4 of this Agreement or (vii) a tender or exchange offer relating to not less than 15% of the then outstanding shares of capital stock of the Company shall have been commenced by a person unaffiliated with Parent and the Company shall not have sent to its securityholders pursuant to Rule 14e-2 promulgated under the Securities Act, within ten (10) business days after such tender or exchange offer is first published sent or given, a statement disclosing that the Company recommends rejection of such tender or exchange offer.
(h) by the Company prior to the date vote of the shareholders of the Company on the Agreement, if, after receiving a Superior Offer and time in the absence of any prior breach of the provisions of Section 5.4 of this Agreement, the Board of Directors of the Company determines in good faith, after consulting with outside legal counsel, that such action is necessary to comply with the fiduciary duties of the Board of Directors of the Company under applicable law; provided, however, that the Company Requisite Vote is obtained and a copy may not terminate this Agreement pursuant to this subsection (h) until two (2) business days have elapsed following delivery to Parent of written notice of such determination of the Company (which written consent notice will inform Parent of the material terms and conditions of the Superior Offer); provided, further, that such termination under this Section 7.1(h) shall not be effective until the Company has made payment to Parent of the amounts required to be paid pursuant to Section 7.3(b)(i).
(i) by the Company if the condition in Section 6.2(d) shall not have been satisfied at or prior to closing.
(j) by either the Company or Parent if either: (i)(A) the Parent Shareholders’ Meeting (including any adjournments thereof) shall have been held and completed and the shareholders of Parent shall have taken a final vote on a proposal to adopt this Agreement, to the extent required by the applicable rules and regulations of Nasdaq and (B) the required approval of the shareholders of Parent contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate this Agreement under this Section 7.1(j) shall not be available to the Parent where the failure to obtain Parent stockholder approval, to the extent such stockholder approval is delivered required by rules and regulations of Nasdaq shall have been caused by the action or failure to act of Parent., respectively, and such action or failure to act constitutes a breach by the Parent of this Agreement;
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Dynamic Health Products Inc), Agreement and Plan of Reorganization (GeoPharma, Inc.)
Termination. (a) This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing as follows:
(ai) by mutual written consent of Parent the Company and the CompanyBuyer;
(bii) by Parent or the Company or Buyer, if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Authority shall have issued a final an order, decree or ruling or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger consummation of the Transactions, and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b8.1(a)(ii) shall not be available to any party hereto whose failure to perform or observe the party seeking to terminate if covenants and agreements of such party set forth herein has been a material cause of, or any of its Subsidiaries has failed to take resulted in, such actions with respect thereto as are required to comply with Section 6.8action;
(ciii) by Parent the Company (provided that the Company is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement), if there shall be a breach by Buyer or Acquisition Sub of any representation or warranty or any covenant or agreement contained in this Agreement that would result in a failure of a condition set forth in Section 7.1 or Section 7.3 and which breach cannot be cured or has not been cured (to the extent necessary to avoid a failure of such a condition) within thirty (30) calendar days (but not later than the Termination Date) after the giving of written notice to Buyer of such breach (provided, that Buyer may elect by written notice to the Company to extend the Termination Date if and as required in order for Buyer to have a full thirty (30) days after receipt of written notice of such breach from the Company within which to cure such breach);
(iv) by Buyer (provided that neither Buyer nor Acquisition Sub is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement), if there shall be a breach by the Company of any representation or warranty or any covenant or agreement contained in this Agreement that would result in a failure of a condition set forth in Section 7.1 or Section 7.2 and which breach cannot be cured or has not been cured (to the extent necessary to avoid a failure of such a condition) within thirty (30) calendar days (but not later than the Termination Date) after the giving of written notice to the Company of such breach (provided, that the Company may elect by written notice to Buyer to extend the Termination Date if and as required in order for the Company to have a full thirty (30) days after receipt of written notice of such breach from Buyer within which to cure such breach); or
(v) by the Company or Buyer if the Merger shall Closing does not have been consummated occur by the close of business on or before September 15, 2008 the first anniversary of the date hereof (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that that, notwithstanding the right to foregoing, no party hereto may terminate this Agreement pursuant to this Section 8.1(cclause (v) shall not be available to if the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time act has been the a material cause of, of or resulted in, in the failure of the Effective Time Closing to occur on or before by the Parent Termination Date and such action or the Company Termination Date, as applicable;
(d) by the Company if there shall have been failure to act constitutes a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(fvi) by Parent the Company at any time prior to the date time the Company Shareholder Approval is obtained, if (A) the Company Board authorizes the Company, subject to complying with the terms of this Agreement, to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal and time the Company notifies Buyer in writing that it intends to enter into such an agreement, attaching the most current version of such agreement to such notice and (B) Buyer does not make, within three (3) Business Days of receipt of the Company’s written notification of its intention to enter into a binding agreement for a Superior Proposal, an offer that the Company Requisite Vote Board determines, in good faith after consultation with its financial advisor and its legal counsel, is obtained at least as favorable, from a financial point of view, to the Company Shareholders as the Superior Proposal. The Company agrees (x) that it will not enter into the binding agreement referred to in clause (A) above until at least the fourth (4th) Business Day after it has provided the notice to Buyer required thereby, (y) to notify Buyer promptly if its intention to enter into the written agreement referred to in its notification changes and a copy (z) during such three-day period, to negotiate in good faith with Buyer with respect to any revisions to the terms of the transaction contemplated by this Agreement proposed by Buyer in response to a Superior Proposal, if any, so that ▇▇▇▇▇’s offer would, in the determination of the Company Board, in good faith after consultation with its financial advisor and its legal counsel, be at least as favorable, from a financial point of view, to the Company Shareholders as the Superior Proposal;
(vii) by the Company or Buyer if the Company Shareholder Approval is not obtained at the Company Shareholders Meeting (unless such Company Shareholders Meeting has been postponed or adjourned, in which case at the final postponement or adjournment thereof); or
(viii) by Buyer if the Company Board shall have made a Qualifying Change of Recommendation.
(b) The termination of this Agreement shall be effectuated by the delivery by the party terminating this Agreement to each other party of a written consent is delivered to Parentnotice of such termination. If this Agreement so terminates, it shall become null and void and have no further force or effect, except as provided in Section 8.2.
Appears in 2 contracts
Sources: Share Acquisition Agreement (First Trinity Financial CORP), Share Acquisition Agreement (First Trinity Financial CORP)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be Transactions abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the StockholdersClosing:
(a) by mutual written consent of Parent the Company and the CompanyAcquiror;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderAcquiror, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available by providing written notice to the party seeking to terminate Company, if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(ci) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure none of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company Acquiror Parties is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(eAgreement that would cause the conditions specified in Section 10.03(a) by Parent if or Section 10.03(b) not to be satisfied at the Closing and there shall have been a is any breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (athis Agreement, such that the conditions specified in Section 10.02(a) or (bSection 10.02(b) of Section 7.2 would not be satisfied andat the Closing if the Closing were then to occur, in either such case, and such breach either (A) is not curable or shall not have been capable of being cured prior to the Termination Date (as defined below) or (B) if curable, is not cured within the earlier of (AI) ten (10) Business Days following 30 days after Acquiror provides the Company with written notice of such breach and (II) two Business Days prior to the Company and (B) the Parent Termination Date; provided (ii) the Closing has not occurred on or before the date that Parent shall not have is eight months following the date hereof (the “Termination Date”); provided, that the right to terminate this Agreement pursuant under this subsection (ii) shall not be available if any Acquiror Party’s failure to fulfill any of its obligations under this Section 8.1(eAgreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before Termination Date; (iii) the consummation of any Merger is permanently enjoined, prohibited or prevented by the terms of a final, non-appealable (A) Law adopted following the date hereof or (B) Governmental Order; or (iv) the Company does not deliver the Company Stockholder Approval to Acquiror within seven days after the Registration Statement is declared effective under the Securities Act;
(c) by the Company, by providing written notice to Acquiror, if Parent or Merger Sub (i) the Company is not then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement that would cause the conditions specified in Section 10.02(a) or Section 10.02(b) not to be satisfied at the Closing and there is any breach of any representation, warranty, covenant or agreement on the part of any Acquiror Party set forth in this Agreement, such that the conditions specified in Section 10.03(a) or Section 10.03(b) would not be satisfied at the Closing if the Closing were then to occur, and such breach either (A) is not capable of being cured prior to the Termination Date or (B) if curable, is not cured within the earlier of (I) 30 days after the Company provides Acquiror with written notice of such breach and (II) two Business Days prior to the Termination Date; (ii) the Closing has not occurred on or before the Termination Date; provided, that the right to terminate this Agreement under this subsection (ii) shall not be available if the Company’s failure to fulfill any of its obligations under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before Termination Date; (iii) the consummation of any Merger is permanently enjoined, prohibited or prevented by the terms of a final, non-appealable (A) Law adopted following the date hereof or (B) Governmental Order; or (iv) in the event of any Acquiror Change in Recommendation; or
(fd) by Parent at any time prior either the Company or Acquiror, by providing written notice to the date other, if the Special Meeting has been held, Acquiror Shareholders have duly voted, and time that the Company Requisite Vote is Acquiror Shareholder Approval has not been obtained and a copy (subject to any adjournment, postponement or recess of the written consent is delivered to Parentmeeting).
Appears in 2 contracts
Sources: Merger Agreement (Supernova Partners Acquisition Co II, Ltd.), Merger Agreement (Supernova Partners Acquisition Co II, Ltd.)
Termination. This Notwithstanding any other provision of this Agreement, this Agreement may be terminated and the Merger and the other transactions contemplated hereby may be abandoned at any time prior to before the Effective Time, notwithstanding adoption thereof whether before or after the approval of the Merger by the Stockholdersshareholders of UBSH or ANCX, as provided below:
(a) by By the mutual written consent in writing of Parent UBSH and the CompanyANCX;
(b) By either party, by Parent or written notice to the Company other party, if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such orderhas not been consummated by October 4, decree2019, ruling or other action is or shall have become final and nonappealable; provided, however, provided that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(b) shall not be available to the any party seeking to terminate if such party or any whose breach of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, of or resulted in, in the failure of the Effective Time to occur on or before such date;
(c) By either party, by written notice to the Parent Termination Date other party, in the event any (i) Regulatory Approval required to be obtained pursuant to Section 6.1(b) has been denied by the relevant Governmental Authority and such denial has become final, (ii) the relevant Governmental Authority shall have requested in writing that UBSH, ANCX or any of their respective Subsidiaries withdraw (other than for technical reasons), and not be permitted to resubmit within 90 days, any application with respect to a Regulatory Approval or (iii) any Governmental Authority of competent jurisdiction shall have issued a final, nonappealable injunction permanently enjoining or otherwise prohibiting the Company Termination Date, as applicableconsummation of the transactions contemplated hereby;
(d) By either party, by written notice to the Company if there shall have been a other party (provided that the terminating party is not then in material breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been ), in the event of a breach or inaccuracy, as applicable, of any representation, warranty, covenant or agreement on the part of the Company other party contained in this Agreement which breach or inaccuracy is not cured within 30 days after the giving of written notice to the breaching party or by its nature cannot be cured within such that any condition set forth time period and which breach or inaccuracy would, either individually or in subsection (athe aggregate with all other breaches or inaccuracies, provide the terminating party the ability to refuse to consummate the Merger under Sections 6.2(a) or and (b) in the case of UBSH and Sections 6.3(a) and (b) in the case of ANCX;
(e) By UBSH, by written notice to ANCX, (i) if ANCX has failed to make the ANCX Board Recommendation, (ii) upon a Change in ANCX Recommendation or upon ANCX’s approval, adoption, endorsement or recommendation of any Acquisition Proposal or (iii) if ANCX has failed to comply with its obligations under Section 7.2 would not be satisfied and5.4(b) and Section 5.5;
(f) By either party, in either such caseby written notice to the other party, such breach is not curable or if the ANCX Shareholder Approval shall not have been cured prior obtained at the ANCX Shareholders Meeting;
(g) By ANCX, by written notice to UBSH, (i) if UBSH has failed to make the UBSH Board Recommendation, (ii) upon a Change in UBSH Recommendation or (iii) if UBSH has failed to comply with its obligations under the first sentence of Section 5.4(a);
(h) By either party, by written notice to the earlier of (A) ten (10) Business Days following written notice of such breach to other party, if the Company and (B) the Parent Termination Date; provided that Parent UBSH Shareholder Approval shall not have been obtained at the right UBSH Shareholders Meeting;
(i) By ANCX, by written notice to terminate this UBSH, if the Board of Directors of ANCX determines to enter into an Acquisition Agreement with respect to a Superior Proposal in accordance with Section 5.5(f), provided that ANCX pays to UBSH the Termination Fee on the date of such termination pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement7.4(b); or
(fj) By UBSH, by Parent at any time prior written notice to ANCX, if a Governmental Authority has granted a Regulatory Approval but such Regulatory Approval contains, or shall have resulted in or would reasonably be expected to result in, the date and time that the Company Requisite Vote is obtained and imposition of a copy of the written consent is delivered to ParentBurdensome Condition.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Union Bankshares Corp), Agreement and Plan of Reorganization (Access National Corp)
Termination. This Agreement may be terminated and the Offer and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption approval thereof by the Stockholdersshareholders of the Company (with any termination by Parent also being an effective termination by Merger Sub) only as follows:
(a) by mutual written consent of Parent and the CompanyCompany at any time;
(b) by either Parent or the Company Company:
(i) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final judgment, order, decree injunction, rule or ruling decree, or taken any other final action restraining, enjoining or otherwise prohibiting any of the Merger transactions contemplated by this Agreement, and such judgment, order, decreeinjunction, ruling rule, decree or other action is or shall have become final and nonappealable; provided, however, that no party shall have the right to terminate this Agreement pursuant to this Section 8.1(b8.1(b)(i) unless such party shall not be available have in all material respects complied with its obligations to contest, appeal and remove such judgment, order, injunction, rule, decree, ruling or take other action required by Section 6.8 (but subject to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;limitations therein); or
(cii) by Parent if the Merger Acceptance Time shall not have been consummated occurred on or before September 15, 2008 (the “Parent Termination Outside Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b)(ii) shall not be available to the any party seeking to terminate if whose material breach of any action of such party representation or any of its Subsidiaries warranty, or the failure of such party or any of its Subsidiaries to perform in any of its obligations under material respect any covenant or agreement set forth in this Agreement required to be performed at or prior to the Effective Time has been the principal cause of, or resulted in, the failure of the Effective Acceptance Time to occur not having occurred on or before the Outside Date;
(c) by Parent, at any time prior to the Acceptance Time:
(i) if (A) (x) any of the representations or warranties of the Company herein shall be untrue or inaccurate on the date of this Agreement or shall become untrue or inaccurate, or (y) the Company shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case only if such untruth, inaccuracy, breach or failure has caused the failure to satisfy any condition set forth in Section 7.1 or Exhibit A; and (B) if curable, such inaccuracy or breach is not cured within fifteen (15) calendar days after written notice to the Company (or, if less, the number of calendar days remaining until the Outside Date) describing such breach in reasonable detail; provided that Parent Termination Date shall not have the right to terminate this Agreement pursuant to this Section 8.1(c)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) if, after the date hereof, the Company Board or any committee thereof shall have (A) effected or permitted an Adverse Recommendation Change (whether or not permitted to do so under the terms of this Agreement), (B) approved, endorsed, declared advisable or recommended to the Company’s shareholders an Acquisition Proposal other than the Offer or the Merger, (C) failed to publicly reaffirm its recommendation of this Agreement within three Business Days following receipt of a written request by Parent to provide such reaffirmation following the public announcement of an Acquisition Proposal, (D) failed to include in the Schedule 14D-9, or withdrawn, withheld or failed to grant its consent to the inclusion in the Offer Documents of, the Company Board Determination or the Company Termination DateRecommendation, as applicableor (E) failed to recommend against a competing tender offer or exchange offer for ten percent or more of the outstanding capital stock of the Company within five Business Days after commencement of such offer (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders); or
(iii) if the Company breaches Section 6.4 in any material respect;
(d) by the Company Company, at any time prior to the Acceptance Time:
(i) if there shall have been a breach (A) (x) any of any representation, warranty, covenant the representations or agreement on the part warranties of Parent or Merger Sub contained in herein shall be untrue or inaccurate on the date of this Agreement such that or shall become untrue or inaccurate, or (y) Parent or Merger Sub shall have breached or failed to perform any condition of their respective covenants or agreements set forth in subsection (a) or (b) of this Agreement, in each case such that the conditions set forth in Section 7.3 7.1 would not be satisfied andsatisfied, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) if curable, such inaccuracy or breach is not cured within fifteen (15) calendar days after written notice to Parent and Merger Sub (or, if less, the Company Termination number of calendar days remaining until the Outside Date) describing such breach in reasonable detail; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(d)(i) if the Company it is then in material breach of any of its covenants or agreements contained set forth in this Agreement;; or
(eii) by Parent in order to enter into a definitive agreement to effect a Superior Proposal, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained has complied with Section 6.4 and enters such definitive agreement concurrently with such termination and pays the Termination Fee in this Agreement such that any condition accordance with the procedures and within the time periods set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right 8.3(b). The party desiring to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach 8.1 shall give notice of any such termination and the provisions of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior Section 8.1 being relied on to terminate this Agreement to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentother parties.
Appears in 2 contracts
Sources: Merger Agreement (Trustco Holdings, Inc.), Merger Agreement (Health Fitness Corp /MN/)
Termination. This Agreement may be terminated and the Merger and the other transactions contemplated hereby by this Agreement may be abandoned at any time prior to the Effective Time, notwithstanding any requisite approval and adoption thereof of this Agreement and the transactions contemplated by the Stockholdersthis Agreement, as follows:
(a) by mutual written consent of Parent and the CompanySole Shareholder;
(b) by either Parent or the Company Sole Shareholder if any court of competent jurisdiction the Effective Time shall not have occurred on or other Governmental Entity having jurisdiction over the Company shall have issued a final orderbefore July 31, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable2000; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.01(b) shall not be available to the any party seeking whose failure to terminate if such party or fulfill any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before July 31, 2000;
(c) there shall be any Order which is final and nonappealable preventing the Parent Termination Date or consummation of the Company Termination Date, as applicableMerger;
(d) by the Company if there shall have been Parent upon a breach of any material representation, warranty, covenant or agreement on the part of the Company or the Sole Shareholder set forth in this Agreement, or if any representation or warranty of the Company or the Sole Shareholder shall have become untrue, in either case such that the conditions set forth in Section 8.02(a), Section 8.02(b) or Section 8.02(c) would not be satisfied ("Terminating Company Breach"); provided, however, that, if such Terminating Company Breach is curable by the Company and the Sole Shareholder through the exercise of their respective reasonable efforts and for so long as the Company and the Sole Shareholder continue to exercise such reasonable efforts, Parent may not terminate this Agreement under this Section 9.01(d) unless such breach is not cured within thirty (30) days after notice thereof is provided by Parent to the Sole Shareholder; or
(e) by the Sole Shareholder upon a breach of any material representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (athis Agreement, or if any representation or warranty of Parent or Merger Sub shall have become untrue, in either case such that the conditions set forth in Section 8.03(a), Section 8.03(b) or (bSection 8.03(c) of Section 7.3 would not be satisfied and("Terminating Parent Breach"); provided, in either however, that, if such caseTerminating Parent Breach is curable by Parent or Merger Sub through the exercise of their respective reasonable efforts and for so long as Parent and Merger Sub continue to exercise such reasonable efforts, the Sole Shareholder may not terminate this Agreement under this Section 9.01(e) unless such breach is not curable or shall not have been cured prior to within thirty (30) days after notice thereof is provided by the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered Sole Shareholder to Parent.
Appears in 2 contracts
Sources: Merger Agreement (Retek Inc), Merger Agreement (HNC Software Inc/De)
Termination. This Agreement may be terminated and the Merger contemplated hereby and the other Transactions may be abandoned at any time prior to the Effective Time, Time (notwithstanding adoption thereof by receipt of the Stockholders:Company Stockholder Approval):
(a) by mutual written consent agreement of Parent the Company and the CompanyParent;
(b) by Parent or either the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderParent, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting if:
(i) the Merger and such orderhas not been consummated on or before March 22, decree, ruling or other action is or shall have become final and nonappealable2026 (the “End Date”); provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(b10.01(b)(i) shall not be available to any party whose breach of any provision of this Agreement results in the party seeking failure of the Merger to terminate if be consummated by such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8time;
(cii) by Parent if there shall be in effect any Applicable Law that permanently enjoins, prevents or prohibits the consummation of the Merger and, if such Applicable Law is an Order, such Order shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)become final and non-appealable; provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(c10.01(b)(ii) shall not be available to the any party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of which has not complied with its obligations under this Agreement required in respect of any such Applicable Law; or
(iii) the Company Stockholder Approval shall not have been obtained upon a vote taken thereon at the Company Stockholder Meeting (including any adjournment or postponement thereof); or
(c) by Parent, if:
(i) a Company Adverse Recommendation Change shall have occurred; provided, that in no event shall Parent be entitled to terminate this Agreement pursuant to this Section 10.01(c)(i) following the receipt of the Company Stockholder Approval;
(ii) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement shall have occurred that would cause any condition set forth in Section 9.02(a) or Section 9.02(c) not to be performed at satisfied, and such breach or prior failure to perform (A) is incapable of being cured by the End Date or (B) has not been cured by the Company within forty-five (45) days following written notice to the Effective Time has been Company from Parent of such breach or failure to perform, but Parent may terminate this Agreement under this Section 10.01(c)(ii) only so long as Parent is not then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach by Parent would cause any condition set forth in Section 9.03(a) or Section 9.03(c) not to be satisfied; or
(iii) the cause Company shall have willfully breached any of their respective obligations under Section 6.03 or Section 8.03 in any material respect, other than in the case where (w) such breach is a result of an isolated action by a Representative of the Company (other than a director or officer of the Company), (x) such breach was not caused by, or within the knowledge of, or resulted inthe Company, (y) the failure Company takes appropriate actions to remedy such breach promptly upon discovery thereof, and (z) Parent is not harmed as a result thereof; provided that in no event shall Parent be entitled to terminate this Agreement pursuant to this Section 10.01(c)(iv) following the receipt of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;Stockholder Approval; or
(d) by the Company if there shall have been Company, if:
(i) a breach of any representation, warranty, representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub contained set forth in this Agreement such shall have occurred that would cause any condition set forth in subsection (aSection 9.03(a) or (bSection 9.03(c) of Section 7.3 would not to be satisfied andsatisfied, in either such case, and such breach is not curable or shall not have been cured prior failure to the earlier of perform (A) ten is incapable of being cured by the End Date or (10B) Business Days has not been cured by Parent or Merger Sub, as applicable, within forty-five (45) days following written notice to Parent from the Company of such breach or failure to Parent and (B) perform, but the Company Termination Date; provided that may terminate this Agreement under this Section 10.01(d)(i) only so long as the Company shall is not have then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach by the right Company would cause any condition set forth in Section 9.02(a) or Section 9.02(c) not to be satisfied; or
(ii) Parent does not deliver, or cause to be delivered to the Company, the duly executed Parent Stockholder Approval in accordance with Section 7.05 by the Parent Stockholder Approval Deadline. The party desiring to terminate this Agreement pursuant to this Section 8.1(d10.01 (other than pursuant to Section 10.01(a)) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following give written notice of such breach termination to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentother party.
Appears in 2 contracts
Sources: Merger Agreement (Strive, Inc.), Merger Agreement (Semler Scientific, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeClosing, notwithstanding adoption thereof whether before or after the requisite approval of the issuance of the Shares, the Warrant and the Warrant Stock by the StockholdersParent's stockholders:
(a) by mutual written consent duly authorized by the Boards of Directors of Parent and the CompanyVHA;
(b) by either Parent or VHA if the Company if Closing shall not have occurred by September 30, 2000 for any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealablereason; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in the party seeking failure of the Closing to terminate if occur on or before such party date and such action or any failure to act constitutes a breach of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8this Agreement or the Outsourcing Agreement;
(c) by either Parent or VHA if a Governmental Entity shall have issued an order, decree or ruling or taken any other action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing, which order, decree, ruling or other action is final and nonappealable;
(d) by either Parent or VHA, if the Merger approval of the issuance of the Shares, the Warrant and the Warrant Stock by the stockholders of Parent shall not have been consummated on obtained by reason of the failure to obtain the required vote at a meeting of Parent stockholders duly convened therefor or before September 15at any adjournment thereof;
(e) by either Parent or VHA, 2008 (the “Parent Termination Date”), or by the Company if the Merger Outsourcing Agreement is validly terminated according to its terms by a party thereto; or
(f) by VHA, at any time prior to the Parent Stockholders' Meeting, if a Triggering Event (as defined below) shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)occurred; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company VHA shall not have the right to terminate this Agreement pursuant to under this Section 8.1(d7.1(f) in response to the occurrence of the Triggering Event set forth in clause (iii) of the definition thereof if at the Company time the event set forth in such clause (iii) occurs VHA is then in material breach of this Agreement, or VHA, Novation or HPPI is in material breach of the Outsourcing Agreement, which breach has not been cured as of such time. For the purposes of this Agreement, a "TRIGGERING EVENT" shall be deemed to have occurred if: (i) the Board of Directors of Parent or any committee thereof shall for any reason have withdrawn or shall have amended or modified in a manner adverse to VHA its recommendation in favor of the approval of the Parent Stockholder Approval; (ii) Parent shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of Parent in favor of the approval of the Parent Stockholder Approval; (iii) the Board of Directors of Parent fails to reaffirm its recommendation in favor of the approval of the Parent Stockholder Approval within 10 business days after VHA requests in writing that such recommendation be reaffirmed at any time following the public announcement of a Parent Acquisition Proposal; (iv) the Board of Directors of Parent or any committee thereof shall have approved or publicly recommended any Parent Acquisition Proposal; (v) Parent shall have entered into any letter of intent of similar document or any agreement, contract or commitment accepting any Parent Acquisition Proposal; or (vi) Parent shall have materially breached any of its covenants the provisions of Sections 5.2 or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a5.4(a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent).
Appears in 2 contracts
Sources: Common Stock and Warrant Agreement (Vha Inc), Common Stock and Warrant Agreement (Neoforma Com Inc)
Termination. This Agreement may be terminated terminated, and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholdersabandoned:
(a) by mutual written consent of Parent the Company and the CompanyAcquiror;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause ofClosing, or resulted in, the failure of the Effective Time by written notice to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
from Acquiror if (di) by the Company if there shall have been a breach of is any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement Agreement, such that any condition set forth specified in subsection (aSection 9.02(a) or (bSection 9.02(b) of Section 7.2 would not be satisfied andat the Closing (a “Terminating Company Breach”), in either except that, if any such caseTerminating Company Breach is curable by the Company through the exercise of its commercially reasonable efforts, such breach is not curable then, for a period of up to thirty (30) days (or shall not have been cured prior to any shorter period of the earlier of (A) ten (10) Business Days following time that remains between the date Acquiror provides written notice of such violation or breach to and the Termination Date) after receipt by the Company of notice from Acquiror of such breach, but only as long as the Company continues to use its commercially reasonable efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, (Bii) the Parent Closing has not occurred on or before May 20, 2022, as such date may be extended upon the mutual written consent of Company and Acquiror (the “Termination Date”), or (iii) the consummation of the Merger is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or other Law; provided provided, that Parent shall not have the right to terminate this Agreement pursuant under Section 10.01(b)(ii) shall not be available if either (A) Acquiror’s failure to fulfill any obligation under this Section 8.1(eAgreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date or (B) Acquiror is in breach of this Agreement on such date, which breach could give rise to a right of the Company to terminate this Agreement;
(c) prior to the Closing, by written notice to Acquiror from the Company if Parent or Merger Sub (i) there is then in material any breach of any representation, warranty, covenant or agreement on the part of its covenants or agreements contained Acquiror set forth in this Agreement, such that any condition specified in Section 9.03(a) or Section 9.03(b) would not be satisfied at the Closing (a “Terminating Acquiror Breach”), except that, if any such Terminating Acquiror Breach is curable by Acquiror through the exercise of its commercially reasonable efforts, then, for a period of up to 30 days (or any shorter period of the time that remains between the date the Company provides written notice of such violation or breach and the Termination Date) after receipt by Acquiror of notice from the Company of such breach, but only as long as Acquiror continues to use its commercially reasonable efforts to cure such Terminating Acquiror Breach (the “Acquiror Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Acquiror Breach is not cured within the Acquiror Cure Period, (ii) the Closing has not occurred on or before the Termination Date, or (iii) the consummation of the Merger is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or other Law; provided, that the right to terminate this Agreement under Section 10.01(c)(ii) shall not be available if either (A) the Company’s failure to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date or (B) the Company is in breach of this Agreement on such date, which breach could give rise to a right of Acquiror to terminate this Agreement;
(d) by written notice from the Company to the Acquiror if Acquiror Stockholder Approval is not obtained at the Special Meeting (subject to any adjournment or recess of the meeting); or
(fe) by Parent at any time prior written notice from Acquiror to the date and time that Company if the Company Requisite Vote is Unitholder Approvals have not been obtained and a copy of within 10 Business Days following the written consent is delivered to Parentdate hereof.
Appears in 2 contracts
Sources: Merger Agreement (Spring Valley Acquisition Corp.), Merger Agreement (Spring Valley Acquisition Corp.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholderswhether before or after receipt of Company Stockholder Approval:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company Company:
(i) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final issues an order, decree or ruling or taken takes any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the acceptance for payment of, or payment for, shares of Company Common Stock pursuant to the Offer or the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; or
(ii) if as the result of the failure of any of the conditions set forth in Annex 1 to this Agreement, (A) Sub shall have failed to commence the Offer within 30 days following the date of this Agreement or (B) the Offer shall have terminated or expired in accordance with its terms (including after giving effect to any extensions) without Sub having purchased any shares of Company Common Stock pursuant to the Offer prior to September 30, 2005, provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(bSubsection (ii) shall not be available to the any party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required whose failure to comply with Section 6.8its obligations under or breach of this Agreement results in the failure of any such condition;
(c) by Parent Parent, if the Merger shall not have been consummated on any representation or before September 15, 2008 (the “Parent Termination Date”), or warranty made by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate in this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause oftrue and correct, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then breaches or fails to perform in any material breach of respect any of its covenants or agreements contained in this Agreement, which failure to be true and correct, breach or failure to perform (i) would give rise to the failure of a condition set forth in Annex 1 and (ii) cannot be or has not been cured within 15 days after the giving of written notice to the Company of such breach;
(d) by Parent if (i) either Parent or Sub is entitled to terminate the Offer as a result of the occurrence of any event set forth in paragraph (e) of Annex 1 to this Agreement or (ii) there shall not have been validly tendered and not withdrawn prior to the expiration of the Offer at least a majority of the outstanding shares of Company Common Stock, on a fully diluted basis, on or prior to such date;
(e) by Parent if there shall have been a breach of any representationthe Company, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier acceptance for payment of (A) ten (10) Business Days following written notice shares of such breach Company Common Stock pursuant to the Company and (B) Offer, in accordance with Section 6.2(b); provided, however, that, in order for the Parent Termination Date; provided that Parent shall not have the right to terminate termination of this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior subparagraph to the date and time that be effective, the Company Requisite Vote is obtained and a copy shall have complied with all of the written consent is delivered to Parent.provisions of Section 6.2, including the notice provisions therein, and with all applicable requirements of Section
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sapphire Expansion CORP), Merger Agreement (Retek Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be herein abandoned at any time prior to the Effective Time, notwithstanding adoption approval thereof by the Stockholdersstockholders of the Company:
(a) by mutual written consent of Parent and the Company;; or
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before by September 3017, 2008 (the “Company Termination Date”)2003; providedPROVIDED, howeverHOWEVER, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, of or resulted in, in the failure of the Effective Time Merger to occur on or before the such date; or
(c) by either Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there a court of competent jurisdiction shall have been issued a breach nonappealable final order, decree or ruling having the effect of any representationpermanently restraining, warranty, covenant enjoining or agreement on otherwise prohibiting the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to under this Section 8.1(d9.1(c) shall not be available to any party who has not complied with Section 7.9 and such noncompliance materially contributed to the issuance of any such order, decree or ruling or the taking of such action); or
(d) by either Parent or the Company if the requisite vote of the holders of the Company is then in material breach of any of its covenants or agreements contained in this Agreement;Common Stock shall not have been obtained at the Company Stockholders Meeting; or
(e) by Parent, if the Board of Directors of the Company shall withdraw, modify or change its approval or recommendation of this Agreement or the Merger in a manner adverse to Parent if there or approves or recommends an Acquisition Proposal or the Company shall have been entered into an agreement with respect to an Acquisition Proposal; or
(f) by the Company if (i) the Board of Directors pursuant to Section 6.4(b) withdraws or modifies its approval or recommendation of this Agreement or the Merger, and (ii) the Company simultaneously with terminating this Agreement pays Parent all Expenses and the Termination Fee in cash and otherwise complies with the provisions of Section 6.4(b); or
(g) by the Company if (i) the Company enters into a definitive agreement in accordance with Section 6.4(b), and (ii) the Company simultaneously with terminating this Agreement pays Parent all Expenses and the Termination Fee in cash and otherwise complies with the provisions of Section 6.4(b); or
(h) by either Parent or the Company if the Special Committee shall have requested but not have received an opinion from the Special Committee's financial advisor dated as of the date of the Proxy Statement-Prospectus to the effect that the Merger Consideration to be received by the stockholders of the Company is fair from a financial point of view to the public stockholders of the Company; or
(i) by Parent or the Company, upon a material breach of any representation, warranty, covenant or agreement on the part of the Company contained or Parent, respectively, set forth in this Agreement Agreement, which breach has not been cured within ten business days following receipt by the breaching party of notice of such breach from the other party, such that the conditions set forth in Section 8.2(b) or Section 8.3(b), as the case may be, would not be satisfied;
(j) by Parent, if any representation or warranty of the Company shall be untrue such that the condition set forth in subsection (aSection 8.2(a) or (b) of Section 7.2 would not be satisfied andsatisfied, or by the Company, if any representation or warranty of Parent shall be untrue such that the condition set forth in either such caseSection 8.3(a) would not be satisfied; or
(k) by Parent, such breach if the Average Closing Price on the trading day which is not curable or shall not have been cured prior to three business days preceding the earlier of (A) ten (10) Business Days following written notice of such breach to date on which the Company and (B) Stockholders Meeting occurs is less than the Parent Termination DateMinimum Market Price; provided PROVIDED, HOWEVER, that Parent shall not have the right be permitted to terminate this Agreement pursuant to under this Section 8.1(e9.1(k) if the Company notifies Parent, by 12:00 noon on the business day following the date Parent or Merger Sub is then in material breach of any gives notice to the Company of its covenants or agreements contained in determination to terminate this Agreement; or
(f) by Parent at any time prior to the date and time Agreement under this Section 9.1(k), that the Company Requisite Vote is obtained wishes to proceed with an all-cash merger transaction, in which case the terms and a copy conditions of this Agreement shall continue in full force and effect, except that the Merger Consideration shall be payable in cash only, such that all holders of shares of Company Common Stock (other than Excluded Shares) shall be entitled to receive the Cash Consideration in respect of such shares, less any required withholding of Taxes, and in which case the parties hereto hereby agree to negotiate an amendment and restatement of this Agreement to reflect the requirements of an all-cash transaction. Any party desiring to terminate this Agreement shall give written consent is delivered notice thereof and the reasons therefor to Parentthe other parties hereto.
Appears in 2 contracts
Sources: Merger Agreement (Gtech Holdings Corp), Merger Agreement (Interlott Technologies Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether before or after approval of the matters presented in connection with the Merger by the Stockholdersstockholders of the Company or Parent:
(a) by mutual written consent of Parent the Company and the CompanyParent, or by mutual action of their respective Boards of Directors;
(b) by Parent or either the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(bParent (i) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure consummation of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company Offer if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have has been a breach of any representation, warranty, covenant or agreement on the part of the Company contained other set forth in this Agreement which breach has not been cured within three business days following receipt by the breaching party of notice of such that any condition set forth in subsection (a) breach, or (bii) if any permanent injunction or other order of Section 7.2 would a court or other competent authority preventing the consummation of the Offer or the Merger shall have become final and non-appealable;
(c) by either the Company or Parent, so long as such party has not be satisfied andbreached its obligations hereunder, in either such case, such breach is not curable or if the Merger shall not have been cured prior to consummated on or before the earlier 45th calendar day following the consummation of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination DateOffer; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to under this Section 8.1(e8.1(c) if 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 Merger to occur on or before such date;
(d) by Parent in the event that a Trigger Event has occurred under Section 6.4(b) prior to the consummation of the Offer;
(e) by Parent in the event an Acquisition Proposal has been made to the Company prior to the consummation of the Offer and the Company shall fail to publicly reaffirm its approval or recommendation of the Offer, the Merger Sub is then in material breach of any of its covenants and this Agreement on or agreements contained in this Agreement; orbefore the fifth business day following the date on which Parent shall request such reaffirmation;
(f) by Parent at Parent, if the Offer terminates, is withdrawn, abandoned or expires by reason of the failure to satisfy any time condition set forth in Exhibit A hereto;
(g) by the Company, if the Offer shall have expired or have been withdrawn, abandoned or terminated without any shares of Company Common Stock being purchased by Sub thereunder on or prior to the 45th calendar day after the date and time that of commencement of the Offer pursuant to Section 1.2 hereof; or
(h) by the Company, if the Board of Directors of the Company Requisite Vote is obtained and a copy shall take any of the written consent is delivered to Parentactions permitted by Section 5.1(e)(ii) of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (DR Pepper Bottling Company of Texas), Merger Agreement (Seven Up Rc Bottling Company of Southern California Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:whether before or after Stockholder Approval,
(a) by mutual written consent of Parent Parent, Merger Sub and the Company;
(b) by either Parent or the Company by action of its board of directors: (i) if Merger Sub has not accepted Shares for payment pursuant to the Offer on or before the Outside Date; (ii) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderOrder permanently enjoining, decree or ruling or taken any other final action restraining, enjoining restraining or otherwise prohibiting the Merger exists and such order, decree, ruling or other action is or Order shall have become final and nonappealablenonappealable or (iii) if the Offer shall have terminated or expired in accordance with its terms without Merger Sub having purchased any Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to any party that has breached its obligations under this Agreement in any manner that shall have proximately contributed to the party seeking occurrence of the event which gave rise to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with the termination right under this Section 6.8;8.1(b); or
(c) by Parent Parent, (i) if the Merger Company Board shall not have been consummated on or before September 15, 2008 made a Change in Recommendation; (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(cii) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation or warranty shall have become untrue or incorrect on any date subsequent to the part date of this Agreement, in each case in a manner that would cause any condition in Exhibit 1 hereto not to be satisfied and such breach or failure to be true or correct is not curable or, if curable, has not been cured within 30 days after written notice thereof has been given by Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) to the Company, or (biii) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that if the Company shall not have the right to terminate materially breached any of its obligations under Sections 6.2 or 6.3 of this Agreement; provided, however, that this Agreement may not be terminated pursuant to this Section 8.1(d8.1(c) after Merger Sub has purchased Shares pursuant to the Offer;
(d) by the Company, if the Company is then Parent or Merger Sub breaches or fails to perform in any material breach of respect any of its representations, warranties, covenants or agreements contained in this Agreement;
(e) by , which breach or failure to perform has had or would reasonably be expected to have a Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach Material Adverse Effect and is not curable or shall or, if curable, has not have been cured prior to within thirty (30) days after the earlier giving of (A) ten (10) Business Days following written notice to Parent of such breach to the Company and (B) the Parent Termination Datebreach; provided provided, however, that Parent shall not have the right to terminate this Agreement may not be terminated pursuant to this Section 8.1(e8.1(d) if Parent or after Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior has purchased Shares pursuant to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to ParentOffer.
Appears in 2 contracts
Sources: Merger Agreement (Lowrance Electronics Inc), Merger Agreement (Simrad Yachting As)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after the StockholdersILG Shareholder Approval:
(a) by mutual written consent agreement of Parent Starwood and the CompanyILG;
(b) by Parent Starwood or ILG, if any Law shall have been promulgated, entered, enforced, enacted or issued or shall be deemed to be applicable to the Merger or the Company if other transactions contemplated hereby by any court Governmental Authority of competent jurisdiction which permanently prohibits, restrains or other Governmental Entity having jurisdiction over makes illegal the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting consummation of the Merger and such order, decree, ruling or the other action is or shall have become final and nonappealabletransactions contemplated hereby; provided, however, that the right to terminate this the Agreement pursuant to this Section 8.1(b9.01(b) shall not be available to the any party seeking to terminate if such party whose action or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to is the Effective Time has been the primary cause of, or primarily resulted in, the enactment or issuance of any such Law;
(c) by Starwood or ILG, if the Closing shall not have occurred on or prior to October 27, 2016 (the “Outside Date”); provided, that the right to terminate the Agreement pursuant to this Section 9.01(c) shall not be available to any Party whose action or failure to comply with its obligations under this Agreement or the Separation Agreement has been the primary cause of, or has primarily resulted in, the failure of the Effective Time Closing to occur on or before the Parent Termination Date or the Company Termination Date, as applicableprior to such date;
(d) by ILG upon written notice to Starwood, in the Company if there shall have been event of a breach of any representation, warranty, covenant or agreement on the part of Parent Starwood or Merger Sub contained in this Agreement Vistana, such that any condition set forth the conditions specified in subsection (a) Section 8.01 or (b) of Section 7.3 8.03 would not be satisfied andat the Closing, in either such caseand which, (i) with respect to any such breach that is capable of being cured, is not curable cured by Starwood or shall not have been Vistana by the earlier of: (x) sixty (60) days after receipt of written notice thereof (y) the Outside Date, or (ii) is incapable of being cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Outside Date; provided provided, that the Company ILG shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.01(d) if the Company it is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement to the extent such that any breach would give rise to the failure of a condition set forth in subsection (a) Section 8.01 or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent.8.02;
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vistana Signature Experiences, Inc.), Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by whether before or after receipt of the Stockholders:Requisite Company Vote (except as otherwise expressly noted):
(a) by the mutual written consent of the Company and Parent and duly authorized by each of their respective boards of directors (in the case of the Company, acting upon the unanimous recommendation of the Independent Committee);
(b) by Parent or either of the Company or Parent:
(i) if the Merger shall not have been consummated on or before September 2, 2014 (the “Termination Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b)(i) shall not be available to a party if the failure of the Merger to have been consummated on or before the Termination Date was primarily due to the breach or failure of such party to perform in any material respect any of its obligations under this Agreement;
(ii) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action Injunction permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b8.1(b)(ii) shall not be available to a party if the party seeking issuance of such Injunction was primarily due to terminate if the breach or failure of such party or to perform in any material respect any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8obligations under this Agreement; or
(iii) if the Shareholders’ Meeting shall have been held and completed and the Requisite Company Vote shall not have been obtained at the Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;
(c) by Parent Parent,
(i) if the Merger representations and warranties of the Company shall have become untrue after the date of this Agreement or the Company shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, which failure to be true and correct, breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 7.1 or Section 7.2 and (B) cannot be cured by the Company by the Termination Date, or if capable of being cured, shall not have been consummated on or before September 15, 2008 cured within thirty (the “Parent Termination Date”), or 30) Business Days following receipt by the Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(c)(i) and the basis for such termination (or, if earlier, the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that that, Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(c8.1(c)(i) if either Parent or Merger Sub is then in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 7.1 or Section 7.3 not being satisfied; or
(ii) if (A) the board of directors of the Company shall not be available to have made a Company Adverse Recommendation, (B) the party seeking to terminate if board of directors of the Company approves, endorses or recommends any action of such party Acquisition Proposal other than the Merger, or any of its Subsidiaries (C) the Company or the failure board of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure directors of the Effective Time Company, acting upon the recommendation of the Independent Committee, fails to occur on or before the Parent Termination Date or include the Company Termination Date, as applicable;Recommendation in the Proxy Statement; or
(d) by the Company Company,
(i) if there shall have been a breach of any representation, warranty, covenant or agreement on the part representations and warranties of Parent or Merger Sub shall have become untrue after the date of this Agreement or Parent or Merger Sub shall have breached or failed to perform any of their covenants or agreements contained in this Agreement such that any Agreement, which failure to be true and correct, breach or failure to perform (A) would give rise to the failure of a condition set forth in subsection (a) Section 7.1 or (b) of Section 7.3 would and (B) cannot be satisfied andcured by the Termination Date, in either such caseor if capable of being cured, such breach is not curable or shall not have been cured prior to the earlier of within thirty (A) ten (1030) Business Days following receipt by Parent or Merger Sub of written notice of such breach or failure to Parent and (B) perform from the Company stating the Company’s intention to terminate this Agreement pursuant to this Section 8.1(d) and the basis for such termination (or, if earlier, the Termination Date); provided that provided, however, that, the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company it is then in material breach of any of its representations, warranties, covenants or other agreements contained hereunder that would result in this Agreementthe conditions to Closing set forth in Section 7.1 or Section 7.2 not being satisfied;
(eii) by Parent if there shall have been a breach if, prior to the receipt of any representationthe Requisite Company Vote, warranty, covenant or agreement on the part board of directors of the Company contained in (upon recommendation of the Independent Committee) has effected a Company Adverse Recommendation and authorized termination of this Agreement such in order to enter into an Alternative Acquisition Agreement relating to a Superior Proposal; provided that any condition set forth the Company has complied in subsection all material respects with Section 6.2; or
(aiii) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of if (A) all of the conditions to closing contained in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing) and (B) Parent and Merger Sub fail to complete the Closing within ten (10) Business Days following written notice of such breach to the Company and (B) date the Parent Termination Date; provided that Parent shall not Closing should have the right to terminate this Agreement occurred pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parent2.2.
Appears in 2 contracts
Sources: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, Time (notwithstanding adoption thereof by the Stockholders:receipt of Company Shareholder Approval and/or Parent Shareholder Approval):
(a) by mutual written consent agreement of Parent the Company and the CompanyParent, by action of their respective Boards of Directors;
(b) by Parent or either the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderParent, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting if:
(i) the Merger and such orderhas not been consummated on or before September 30, decree, ruling or other action is or shall have become final and nonappealable2011 (the “End Date”); provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(b9.01(b)(i) shall not be available to the any party seeking to terminate if a breach of any provision of this Agreement by such party or any has resulted in the failure of its Subsidiaries has failed the Merger to take be consummated by such actions with respect thereto as are required to comply with Section 6.8time;
(cii) by Parent if there shall be any Applicable Law that (A) is final and makes consummation of the Merger shall not have been consummated on illegal or before September 15, 2008 otherwise prohibited or (the “Parent Termination Date”), or by B) permanently enjoins the Company if or Parent from consummating the Merger and such enjoinment shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)become final and nonappealable; provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(c9.01(b)(ii) shall not be available to the any party seeking whose failure to terminate if comply in any action material respect with any provision of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the direct cause of, or resulted directly in, the failure of the Effective Time to occur on or before the Parent Termination Date or such action; or
(iii) at the Company Termination DateShareholder Meeting (including any adjournment or postponement thereof), as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or Shareholder Approval shall not have been cured prior to obtained; or
(iv) at the earlier of Parent Shareholder Meeting (including any adjournment or postponement thereof), Parent Shareholder Approval shall not have been obtained;
(c) by Parent, if:
(i) (A) ten (10) Business Days following written notice of such breach to Parent and a Company Adverse Recommendation Change has occurred, (B) the Company Termination Date; provided that shall have intentionally and knowingly breached in any material respect any of the provisions of Section 5.02, (C) a tender or exchange offer relating to securities of the Company shall have been commenced by a Person unaffiliated with Parent, and the Company shall not have the right sent to terminate this Agreement its security holders pursuant to this Section 8.1(d) if Rule 14e-2 promulgated under the 1934 Act, within ten Business Days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company is then recommends rejection of such tender or exchange offer or (D) the Company Board shall have failed to publicly confirm the Company Board Recommendation within ten Business Days of a written request by Parent that it do so, provided Parent shall not make such a request more frequently than once in material breach of any of its covenants or agreements contained in this Agreement;thirty calendar day period; or
(eii) by Parent if there shall have been a breach of any representation, warranty, representation or warranty or failure to perform any covenant or agreement on the part of the Company contained set forth in this Agreement such shall have occurred (A) that any condition would cause the conditions set forth in subsection (aSection 8.02(a) or Section 8.02(b) not to be satisfied, and (bB) of Section 7.2 would not be satisfied and, in either such caseif curable, such breach or failure is not curable or shall not have been cured prior to by the Company by the earlier of (A1) ten the End Date or (102) Business Days thirty days following receipt by the Company of written notice of such breach to or failure provided that, at the Company and (B) time of the Parent Termination Date; provided that delivery of such written notice, Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then be in material breach of any of its covenants or agreements contained in obligations under this Agreement; or
(fd) by Parent the Company, if:
(i) at any time prior to the date and time that Company Stockholder Approval, the Company Requisite Vote is obtained enters into a definitive agreement providing for a Superior Proposal after complying with Section 5.02 and a copy of satisfying the written consent is delivered to Parent.requirements and conditions set forth in clauses (i), (ii), (iii) and (iv) of
Appears in 2 contracts
Sources: Merger Agreement (Rehabcare Group Inc), Merger Agreement (Kindred Healthcare, Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Mergers may be abandoned at any time prior to the Company Merger Effective Time, notwithstanding adoption thereof whether before or after the receipt of Company Stockholder Approval and the Parent Stockholder Approval (in each case, unless otherwise specified in this Section 9.1), by action taken or authorized by the StockholdersParent Board or the Company Board, as applicable, as follows:
(a) by the mutual written consent of Parent and the Company;
(b) by Parent or either the Company if any court or Parent, by written notice to the other Party:
(i) if, upon the completion of competent jurisdiction or other Governmental Entity having jurisdiction over the voting at the Company shall have issued a final orderStockholder Meeting, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action Company Stockholder Approval is or shall have become final and nonappealablenot obtained; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.1(b)(i) shall not be available to the party seeking Company if the failure to terminate if obtain such party Company Stockholder Approval was primarily caused by any action or failure to act of any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with the Company Parties that constitutes a material breach of their respective obligations under Section 6.87.1 or Section 7.4;
(cii) by if, upon the completion of the voting at the Parent Stockholder Meeting, the Parent Stockholder Approval is not obtained; provided, however, that the right to terminate this Agreement under this Section 9.1(b)(ii) shall not be available to Parent if the Merger failure to obtain such Parent Stockholder Approval was primarily caused by any action or failure to act of any of the Parent Parties that constitutes a material breach of their respective obligations under Section 7.1 or Section 7.4;
(iii) if any Governmental Authority of competent jurisdiction shall have issued an order, decree, judgment, injunction or taken any other action, which permanently restrains, enjoins or otherwise prohibits or makes illegal the consummation of the Mergers, and such order, decree, judgment, injunction or other action shall have become final and non-appealable; or
(iv) if the consummation of the Mergers shall not have been consummated occurred on or before September 155:00 p.m. (New York time) on January 11, 2008 2023 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Drop Dead Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b)(iv) shall not be available to the party seeking any Party whose failure to terminate if comply with any action provision of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, or resulted in, the failure of the Effective Time Mergers to occur on or before the Drop Dead Date;
(c) by Parent Termination Date or upon written notice from Parent to the Company, if any of the Company Termination Parties breaches or fails to perform any of its representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform, either individually or in the aggregate, would result in, if occurring or continuing on the Closing Date, as applicablethe failure to be satisfied of a condition set forth in Section 8.2(a) or Section 8.2(b) and such breach or failure to perform is incapable of being cured by the earlier of (i) thirty (30) days after such notice is given or (ii) two (2) Business Days prior to the Drop Dead Date or, if capable of being cured by such earlier date, is not cured by the Company Parties before such earlier date; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c) if Parent or Parent OP is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement such that the conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied;
(d) by the Company upon written notice from the Company to Parent, if there shall have been a breach any of the Parent Parties breaches or fails to perform any representationof its representations, warrantywarranties, covenant covenants or agreement on the part of Parent or Merger Sub agreements contained in this Agreement such that any Agreement, which breach or failure to perform, either individually or in the aggregate, would result in, if occurring or continuing on the Closing Date, the failure to be satisfied of a condition set forth in subsection (aSection 8.3(a) or (bSection 8.3(b) of Section 7.3 would not be satisfied and, in either such case, and such breach or failure to perform is not curable or shall not have been incapable of being cured prior to by the earlier of (Ai) ten thirty (1030) days after such notice is given or (ii) two (2) Business Days following written notice prior to the Drop Dead Date or, if capable of being cured by such breach to earlier date, is not cured by the Parent and (B) the Company Termination DateParties before such earlier date; provided provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(d) if the Company or the Partnership is then in material breach of any of its representations, warranties, covenants or agreements contained set forth in this AgreementAgreement such that the conditions set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied;
(e) by Parent if there shall have been a breach of the Company upon written notice from the Company to Parent, at any representation, warranty, covenant or agreement on time prior to the part receipt of the Company contained Stockholder Approval, in order to enter into an Acquisition Agreement with respect to a Superior Proposal in compliance with Section 7.4(b)(iv); provided, however, that this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would may not be satisfied and, so terminated unless the payment required by Section 9.3(c) is made in either such case, such breach is not curable or shall not have been cured full to Parent prior to or concurrently with the earlier occurrence of such termination and entry into such Acquisition Agreement with respect to such Superior Proposal;
(Af) ten (10) Business Days following by Parent upon written notice of such breach from Parent to the Company, (i) if a Change in Company and Recommendation shall have occurred (B) the Parent Termination Date; provided provided, however, that Parent shall not have the Parent’s right to terminate this Agreement pursuant to this Section 8.1(e9.1(f)(i) in respect of a Change in Company Recommendation shall expire if Parent and when the Company Stockholder Approval is obtained), or Merger Sub is then in material breach (ii) upon a Willful Breach of any of its covenants or agreements contained Section 7.4 by the Company (it being understood that nothing in this AgreementSection 9.1(f) is intended to modify the rights of Parent and obligations of the Company with respect to a Willful Breach of this Agreement by the Company as provided in Section 9.2 or Section 9.3); or
(fg) by the Company upon written notice from the Company to Parent, (i) if a Change in Parent at any time prior to the date and time Recommendation shall have occurred or (ii) upon a Willful Breach of Section 7.4 by Parent; provided, however, that the Company Requisite Vote Company’s right to terminate this Agreement pursuant to this Section 9.1(g) shall expire if and when the Parent Stockholder Approval is obtained and a copy (it being understood that nothing in this Section 9.1(g) is intended to modify the rights of the written consent is delivered Company and obligations of Parent with respect to Parenta Willful Breach of this Agreement by Parent as provided in Section 9.2 or Section 9.3).
Appears in 2 contracts
Sources: Merger Agreement (Prologis, L.P.), Merger Agreement (DUKE REALTY LTD PARTNERSHIP/)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to before the Effective Time, notwithstanding adoption thereof whether before or after approval of this Agreement by the Stockholders:shareholders of the Company or approval of the Stock Issuance by the shareholders of Buyer (except as provided otherwise in Sections 9.01(e) and (f)):
(a) by mutual written consent agreement of Parent the respective Boards of Directors of Buyer and the Company;
(b) by Parent Buyer or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderCompany, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger transactions contemplated hereby shall not have been consummated on or before September November 15, 2008 2001 (the “Parent Termination Date”"END DATE," as such date may be extended by written agreement of Buyer and the Company), or by PROVIDED that such failure is not due to the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to failure of the party seeking to terminate if any action this Agreement (or, in the event Buyer is seeking to terminate this Agreement, of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries Buyer Subsidiary) to perform any of comply in all material respects with its obligations under this Agreement required Agreement;
(c) by Buyer, if (i) any of the conditions set forth in Sections 8.01 and 8.02 shall become impossible to be performed at fulfill on or prior to the Effective Time has been the cause ofEnd Date (PROVIDED, or resulted in, that such failure is not due to the failure of Buyer or Buyer Subsidiary to comply in all material respects with its obligations under this Agreement), and such conditions shall not have been waived under Sections 8.01 and 8.02, (ii) the Effective Time to occur on or before the Parent Termination Date or shareholders of the Company Termination Dateshall fail to approve this Agreement by the vote required by the MBCA and the Company's Articles of Incorporation at the first shareholders meeting called for that purpose or any adjournment thereof, as applicable(iii) the shareholders of Buyer shall fail to approve the Stock Issuance by the vote required by the DGCL and Buyer's Certificate of Incorporation at the first shareholders meeting called for that purpose or any adjournment thereof, or (iv) the Board of Directors of the Company withdraws or modifies, in any manner adverse to Buyer, its recommendation of approval of this Agreement and the Merger;
(d) by the Company Company, if there shall have been a breach (i) any of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition conditions set forth in subsection Sections 8.01 and 8.03 shall become impossible to fulfill on or prior to the End Date (a) or (b) of Section 7.3 would not be satisfied andPROVIDED, in either that such case, such breach failure is not curable or due to the failure of the Company to comply in all material respects with its obligations under this Agreement) and such conditions shall not have been cured prior to the earlier of waived under Sections 8.01 and 8.03, (A) ten (10) Business Days following written notice of such breach to Parent and (Bii) the Company Termination Date; provided that shareholders of the Company shall not have the right fail to terminate approve this Agreement pursuant by the vote required by the MBCA and the Company's Articles of Incorporation at the first shareholders meeting called for that purpose or any adjournment thereof, (iii) the shareholders of Buyer shall fail to this Section 8.1(dapprove the Stock Issuance by the vote required by the DGCL and Buyer's Certificate of Incorporation at the first shareholders meeting called for that purpose or any adjournment thereof, or (iv) if the Company is then Board of Directors of Buyer withdraws or modifies, in material breach any manner adverse to the Company, its recommendation of any of its covenants or agreements contained in this Agreementthe Stock Issuance;
(e) by Parent if there shall have been a breach of any representationthe Company, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date Company Shareholders Meeting, upon written notice to Buyer, if the Board of Directors of the Company shall have approved a Company Superior Third Party Acquisition Offer; PROVIDED, HOWEVER, that, prior to termination, (i) the Company shall have complied with Section 7.02(a), (ii) the Board of Directors of the Company shall have determined in good faith, after consultation with its outside legal counsel and time financial advisor, that consideration of such Company Superior Third Party Acquisition Offer and termination of this Agreement is necessary for the Board of Directors to comply with its fiduciary duties under Minnesota law, and (iii) the Company shall have notified Buyer in writing at least five business days before termination of its intention to enter into an agreement with respect to a Company Superior Third Party Acquisition Offer (the "INTENTION NOTICE") and shall have provided Buyer with the proposed definitive documentation for such transaction; and PROVIDED, FURTHER, that, during the five business day period following the Intention Notice, the Company shall have afforded Buyer a reasonable opportunity to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated hereby, and the notice of termination shall not be effective if Buyer submits to the Company during such five business day period a legally binding, executed offer to enter into an amendment to this Agreement within such five business day period unless the Company's Board of Directors shall have determined in good faith, after consultation with its outside legal counsel and financial advisor, that the amendment to this Agreement that Buyer has agreed to enter into during such five business day period is not at least as favorable to the Company's shareholders as the Company Requisite Vote Superior Third Party Acquisition Offer;
(f) by the Company, if the Average Buyer Closing Price is obtained and a copy less than $13.24, SUBJECT, HOWEVER, to the following: (A) The Company shall give Buyer written notice of its intention to terminate pursuant to this Section 9.01(f) (the written consent is delivered to Parent."TERMINATION NOTICE") within two business days after the Determination Date (the "COMPANY EVALUATION PERIOD");
Appears in 2 contracts
Sources: Merger Agreement (Diker Charles M), Merger Agreement (Cantel Medical Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by action taken or authorized by the StockholdersBoard of Directors of the terminating party or parties, pursuant to the following:
(a) by mutual written consent of Parent RDSI and the CompanyNew Core;
(b) by Parent either RDSI or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent New Core if the Merger Effective Time shall not have been consummated occurred on or before September 15December 31, 2008 2010, or such later date as the parties may agree by mutual written agreement (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c10.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill in any action of such party or material respect any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time (including such party’s obligations set forth in Section 7.4) has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date;
(c) by either RDSI or New Core if any Governmental Entity (i) shall have issued an order, decree or ruling or taken any other action (which such party shall have used its reasonable best efforts to resist, resolve or lift, as applicable, in accordance with Section 7.4) permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable or (ii) shall have failed to issue an order, decree or ruling, or to take any other action, necessary to fulfill any conditions set forth in subsections 8.1(d) and (e), and the failure to issue such order, decree, ruling or take such action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement under this Section 10.1(c) shall not be available to any party whose failure to comply with Section 7.4 has been the cause of, or resulted in, such action or inaction;
(d) by the Company RDSI, if there New Core shall have been a breach of any representation, warranty, covenant breached or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior failed to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of perform any of its representations, warranties, covenants or other agreements contained in this Agreement, such that the conditions set forth in Section 8.3(a) or Section 8.3(b) are not capable of being satisfied on or before the Termination Date;
(e) by Parent New Core, if there RDSI shall have been a breach of any representation, warranty, covenant breached or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior failed to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of perform any of its their respective representations, warranties, covenants or other agreements contained in this Agreement; or, such that the conditions set forth in Section 8.2(a) or Section 8.2(b) are not capable of being satisfied on or before the Termination Date;
(f) by Parent at RDSI if New Core shall have breached any time prior to of its obligations under the date Ancillary Agreements and time that such breach has not been cured within thirty (30) days following New Core’s receipt of written notice from RDSI of such breach;
(g) by New Core if RDSI shall have breached any of its obligations under the Company Requisite Vote is obtained Ancillary Agreements and a copy such breach has not been cured within thirty (30) days following RDSI’s receipt of written notice from New Core of such breach; or
(h) by New Core or RDSI, if any of the written consent following transactions shall have occurred with respect to RDSI (any such transaction being referred to herein as an “RDSI Sale”): (a) the sale by Rurban of a majority of the voting securities of RDSI other than by Rurban to its Subsidiaries and other than to Rurban’s shareholders in connection with the Spin-Off; (b) the sale of all or substantially all of the assets of RDSI; or (c) the merger or consolidation of RDSI with any other Person where RDSI is delivered to Parentnot the resulting or surviving entity of such merger or consolidation, except where Rurban is the holder of at least 80% of the voting securities of the resulting or surviving entity.
Appears in 2 contracts
Sources: Merger Agreement (Rurban Financial Corp), Merger Agreement (Rurbanc Data Services Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeClosing, notwithstanding adoption thereof by action taken or authorized by the StockholdersBoard of Directors of the terminating party or parties, whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company:
(a) by mutual written consent of Parent Merge and the Company;
(b) by Parent written notice of either the Company or Merge, if the Merger shall not have been consummated prior to March 31, 2005; provided, however, the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or results in, the failure of the Merger to occur on or before such date; provided, further, that in the event the failure of the Merger to be consummated by such date is caused by a pending investigation or review by a Governmental Entity, either Merge or the Company (unless such extending party or such extending party's failure to fulfill any obligation under this Agreement has been the cause of, or results in, the existence or continuance of the pending investigation or review) may extend such date to April 30, 2005;
(c) by written notice of either the Company or Merge, if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final an order, decree or ruling or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger Merger, and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or any of its Subsidiaries or the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by written notice of either the Company or Merge, if (i) the Board of Directors of the Company shall have withdrawn or adversely modified, or shall have adopted resolutions to withdraw or adversely modify, the Company Recommendation; or (ii) the Board of Directors of the Company shall have approved or recommended, or shall have adopted resolutions to approve or recommend, to the stockholders of the Company, an Acquisition Proposal other than that contemplated by this Agreement;
(e) by written notice of Merge, if there shall have has been a breach by the Company or the Principal Shareholder of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any which (i) would result in a failure of the condition set forth in subsection (aSection 7.1(a) or 7.1(b) and (bii) of Section 7.3 would cannot be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) March 31, 2005, provided that Merge shall have given the Company Termination Date; provided that the Company shall not have the right written notice, delivered at least ten days prior to such termination, stating Merge's intention to terminate this Agreement pursuant to this Section 8.1(d9.1(e) if and the Company is then in material breach of any of its covenants or agreements contained in this Agreementbasis for such termination;
(ef) by Parent written notice of the Company, if there shall have has been a breach by Merge of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that any which (i) would result in a failure of a condition set forth in subsection (aSection 7.2(a) or 7.2(b) and (bii) of Section 7.2 would cannot be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to March 31, 2005, provided that the Company and (B) shall have given Merge written notice, delivered at least ten days prior to such termination, stating the Parent Termination Date; provided that Parent shall not have the right Company's intention to terminate this Agreement pursuant to this Section 8.1(e9.1(f) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreementand the basis for such termination; or
(fg) by Parent written notice of either Merge or the Company if the Company Stockholder Approval shall not have been obtained at the Company Stockholders' Meeting duly convened therefor (or at any time prior adjournment or postponement thereof) at which a quorum is present and the vote to the date adopt and time that the Company Requisite Vote approve this Agreement is obtained and a copy of the written consent is delivered to Parenttaken.
Appears in 2 contracts
Sources: Merger Agreement (Merge Technologies Inc), Merger Agreement (Accuimage Diagnostics Corp)