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 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 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 At any time prior to the Closing, 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 StockholdersTransaction abandoned:
(a) by the mutual written consent of Parent and the CompanyParties as evidenced in a writing signed by each Party;
(b) by the Company, prior to the execution of the underwriting agreement for the MetLife Public Offering, if the Company’s board of directors (or a committee thereof) determines that the MetLife Public Offering cannot be completed on terms acceptable to the Company in its sole discretion and determines to abandon the MetLife Public Offering;
(c) by the Parent, prior to the execution of the underwriting agreement for the MetLife Public Offering, if the Parent’s board of directors (or a committee thereof) determines that the MetLife Public Offering or the AIG Public Offerings cannot be completed on terms acceptable to the Parent in its sole discretion and determines to abandon the AIG Public Offerings;
(d) by the Parent or the Company if any court Company, in the event that the underwriting agreement applicable to the Common Stock Offering is terminated in accordance with its terms following the pricing, and prior to the consummation, of competent jurisdiction or other Governmental Entity having jurisdiction over the Common Stock Offering;
(e) by the Company (but only so long as the Company is not in material breach of its obligations under this Agreement) if there has been a material breach of any representation or warranty, covenant or agreement of the Parent or the Seller, such that one or more of the conditions to Closing set forth in Section 8.1 or Section 8.2 are not capable of being fulfilled prior to the time of the closing of the MetLife Public Offering or if such breach is capable of being cured prior to such time but is not so cured prior to such time;
(f) by the Seller (but only so long as the Parent and the Seller are not in material breach of their respective obligations under this Agreement) if there has been a material breach of any representation or warranty, covenant or agreement of the Company, such that one or more of the conditions to Closing set forth in Section 8.1 or Section 8.3 are not capable of being fulfilled prior to the time of the closing of the MetLife Public Offering or if such breach is capable of being cured prior to such time but is not so cured prior to such time; or
(g) by any Party on or after the Termination Date (as such date may be extended from time to time by mutual agreement in writing of the Parties) if the Closing shall not have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and occurred prior to such order, decree, ruling or other action is or shall have become final and nonappealabledate; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.1(g) shall not be available to the party seeking to terminate a Party if such party or any of its Subsidiaries Party has failed to take such actions with respect thereto as are any action 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 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 Party’s obligations under this Agreement required to be performed at or prior to the Effective Time Agreement, which failure has been the cause of, caused or resulted in, in the failure of the Effective Time Closing 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 Parentdate.
Appears in 3 contracts
Sources: Master Transaction Agreement (American International Group Inc), Coordination Agreement (American International Group Inc), Coordination Agreement (Metlife 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 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 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 August 27, decree, ruling or other action is or shall have become final and nonappealable1999 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 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 Merger required approval of the stockholders of Company contemplated by this Agreement 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 therefor or before September 15, 2008 at any adjournment thereof; (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(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 and such party action or any failure to act constitutes a breach by Company 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);
(de) by the Company Parent if there a Triggering Event (as defined below) shall have been occurred;
(f) 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 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, provided, that if such inaccuracy in Parent's representations and warranties or 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(f) for thirty (30) days after delivery of written notice from Company to Parent and of such breach, provided Parent continues to exercise commercially reasonable efforts to cure such 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 (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 cured during such thirty day period); or agreements contained in this Agreement;
48 (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 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, 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, provided, that if such inaccuracy in Company's representations and warranties or breach by Company is curable by Company through the exercise of its commercially reasonable efforts, then Parent may not terminate this Agreement under this Section 7.1(g) for thirty days after delivery of written notice from Parent to the Company and of such breach, provided Company continues to exercise commercially reasonable efforts to cure such breach (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 (g) if Parent it shall have materially breached this Agreement or Merger Sub if such breach by Company is then in material breach cured during such thirty day period). For the purposes of any of its covenants or agreements contained in this Agreement, a "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 five (5) business days after Parent requests in writing that such recommendation be reaffirmed at any time prior following the announcement of an Acquisition Proposal; (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 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 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 date and time 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 Requisite Vote is obtained and a copy recommends rejection of the written consent is delivered to Parentsuch tender or exchange offer.
Appears in 3 contracts
Sources: Agreement and Plan of Reorganization and Merger (Lsi Logic Corp), Agreement and Plan of Reorganization and Merger (Lsi Logic Corp), Agreement and Plan of Reorganization and Merger (Seeq Technology 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 (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. (a) This Agreement Contract 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;both Parties.
(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 University may at its sole discretion terminate this Agreement pursuant Contract in whole or in part upon 30-days’ written notice 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;Contractor.
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”)University may terminate this Contract effective upon delivery of written notice to Contractor, or at such later date as may be established by University: (i) federal or state laws, rules, regulations, or guidelines are modified or interpreted in such a way that any Deliverables or services to be provided by Contractor under this Contract are no longer allowable or appropriate for purchase by University or are no longer eligible for the Company funding proposed for payment authorized by this Contract; (ii) any license or certificate required by law or regulation to be held by Contractor to provide Deliverables under this Contract is denied, revoked, or not renewed for any reason; (iii) if Contractor becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the Merger shall benefit of creditors; (iv) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by Contractor; or (v) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not have been consummated on resolved favorably to Contractor within ninety (90) calendar days. (d) University may terminate by written notice of default (including breach of contract) to Contractor the whole or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate any part of this Agreement pursuant if: (i) Contractor fails to provide services called for by this Section 8.1(c) shall not be available to Agreement within the party seeking to terminate if any action of such party time specified in this Agreement or any extension of its Subsidiaries this Agreement; or the failure of such party or any of its Subsidiaries (ii) Contractor fails to perform any of its obligations under the other provisions of this Agreement, or fails to pursue the Work so as to endanger performance of 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 accordance with its term and, in either such case, such breach is not curable or shall not have been cured prior to the earlier after receipt of (A) ten (10) Business Days following written notice of from University, fails to correct such breach failures within 10 days or such longer period as University may determine at University’s sole discretion. In addition 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 andterminate, in either such casethe event of a default by Contractor under this section, such breach is not curable University will have all other rights and remedies at law 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 Parentequity.
Appears in 3 contracts
Sources: Personal Services Contract, Personal Services Contract, Personal Services Contract
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 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, 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 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 set forth in Section 1.1 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 Parent, Buyer and the CompanySeller;
(b) by Parent Parent, Buyer or the Company Seller, if any a court 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 transactions set forth in Section 1.1 and such order, decree, ruling Order or other action is or shall have become final and nonappealable;
(c) by Parent or Buyer, if Seller or GAC shall have materially breached or failed to perform any of their respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 5.2(a) or Section 5.2(b) and (B) is incapable of being cured, or is not cured, by Seller or GAC, as applicable, within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parent or Buyer;
(d) by Seller, if Parent or Buyer shall have materially breached or failed to perform any of their respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 5.3(a) or Section 5.3(b) and (B) is incapable of being cured, or is not cured, by Parent or Buyer, as applicable, within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Seller; or
(e) by Parent or Seller, if the Closing shall not have occurred on or before the nine month anniversary of the date of this Agreement; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b6.1(e) shall not be available to the any party seeking whose failure to terminate if such party fulfill materially any 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 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 Closing 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 Parentdate.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Symetra Financial CORP), Stock Purchase Agreement (Symetra Financial CORP), Stock Purchase Agreement (Safeco 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 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 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 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 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 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 Effective Time, notwithstanding adoption thereof by whether before or after the Stockholdersrequisite approval of the shareholders of Company:
(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 June 30, decree, ruling or other action is or shall have become final and nonappealable2003 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 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 shall have become final and nonappealable;
(d) by either Company or Parent if the required approval of the shareholders of Company of the Merger contemplated by this Agreement shall not have been consummated on obtained by reason of the failure to obtain the required vote at Company General 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(c7.1(d) shall not be available to the party seeking to terminate if any action of such party Company or any of its Subsidiaries or Parent where the failure to obtain such Company shareholder approval shall have been caused by the action or failure to act of Company or Parent, respectively, and such party action or any failure to act constitutes a breach by Company or Parent, respectively, 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;
(de) 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 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, 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, 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 commercially reasonable efforts, then Company may not terminate this Agreement under this Section 7.1(e) for thirty (30) days after delivery of written notice from Company to Parent and Merger Sub of such breach, provided Parent or Merger Sub, as applicable, continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (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 (e) if the Company such breach or inaccuracy by Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreementcured during such thirty (30)-day period);
(ef) By Company, if a Material Adverse Effect has occurred with respect to Parent; provided, that if such Material Adverse Effect is curable by Parent through the exercise of its commercially reasonable efforts, then Company may not terminate this Agreement under this Section 7.1(f) for thirty (30) days after delivery of written notice from Company to Parent of such Material Adverse Effect, provided Parent continues to exercise commercially reasonable efforts to cure such Material Adverse Effect (it being understood that Company may not terminate this Agreement pursuant to this paragraph (f) if such Material Adverse Effect is cured during such thirty (30)-day period);
(g) by Parent if there shall have been Parent, (i) 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, 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, provided, that if such inaccuracy in Company's representations and warranties or breach by Company is curable by Company through the exercise of its commercially reasonable efforts, then Parent may not terminate this Agreement under this Section 7.1(g)(i) for thirty (30) days after delivery of written notice from Parent to the Company and of such breach, provided Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (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 (g)(i) if such breach or inaccuracy by Company is cured during such thirty (30)-day period), or (ii) if Parent shall have determined, in its reasonable judgment, based on advice of patent counsel, that Company and/or its Intellectual Property is infringing one or Merger Sub more of the patents described on Schedule 7.1(g) hereto in a manner that could lead to any injunction regarding one or more of Company's products or services, material damages or material royalties or similar payments; provided, however, that any notice of termination given by Parent pursuant to this Section 7.1(g)(ii) shall not be effective until five (5) days after delivery to Company. For the purposes of this Section 7.1(g)(ii), material damages means damages in excess of $2,500,000 and material royalties means royalties in excess of $2,500,000;
(h) by Parent, if a Material Adverse Effect has occurred with respect to Company; provided, that if such Material Adverse Effect is then in material breach of any curable by Company through the exercise of its covenants or agreements contained in commercially reasonable efforts, then Parent may not terminate this AgreementAgreement under this Section 7.1(h) for thirty (30) days after delivery of written notice from Parent to Company of such Material Adverse Effect, provided Company continues to exercise commercially reasonable efforts to cure such Material Adverse Effect (it being understood that Parent may not terminate this Agreement pursuant to this paragraph (h) if such Material Adverse Effect is cured during such thirty (30)-day period);
(i) by Parent if a Triggering Event (as defined below) shall have occurred; or
(fj) by Company in order to enter into a binding definitive agreement providing for a Superior Proposal (an "ALTERNATIVE AGREEMENT") if: (i) the Board of Directors of Company shall have determined in good faith after consultation with its outside legal counsel that entering into such Alternative Agreement is required in order for the Board of Directors of Company to comply with its fiduciary obligations to Company's shareholders; (ii) immediately prior to such termination, Company shall have paid Parent the Termination Fee; (iii) Company shall have given Parent at least three (3) business days prior written notice of its intention to enter into an Alternative Agreement, which notice shall be accompanied by a correct and complete copy of such Alternative Agreement (and Company shall thereafter promptly provide Parent with correct and complete copies of any time prior to amendments or proposed amendments thereto); and (iv) concurrently with such termination Company enters into such Alternative Agreement. For the date and time purposes of making the determination required by clause (i) of this paragraph, the parties agree that the Board of Directors and its outside counsel shall determine such fiduciary obligations in accordance with Delaware law as if Company Requisite Vote is obtained and were a copy Delaware corporation. For the purposes of this Agreement, a "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 approval of this Agreement, the Merger or the other transactions contemplated by this Agreement; (ii) Company shall have failed to include in the Prospectus/Proxy Statement the recommendation of the written consent Board of Directors of Company in favor of the approval of this Agreement, the Merger or the other transactions contemplated by this Agreement; (iii) the Board of Directors of Company or any committee thereof shall have approved or recommended any Acquisition Proposal; (iv) the provisions of Section 5.7 of this Agreement shall have been materially breached; (v) 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 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 14d-9 or 14e-2 promulgated under the Exchange Act or Section 329 of the Israeli Companies Law, within ten (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 2 contracts
Sources: Merger Agreement (Precise Software Solutions LTD), Merger Agreement (Veritas Software Corp /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 whether before or after approval of matters presented in connection with the Merger by the Stockholders:stockholders of the Company (provided, however, that if Shares are purchased pursuant to the Offer, Parent may not in any event terminate this Agreement):
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company Company;
(i) if (w) as the result of the failure of any court of competent jurisdiction the conditions set forth in Exhibit A to this Agreement, Sub shall have failed to commence the --------- Offer in the time required by this Agreement or other Governmental Entity (x) as a result of the failure of any of the conditions set forth in Exhibit A to this Agreement the Offer --------- shall have terminated or expired in accordance with its terms (as extended, if required, pursuant to the last sentence of Section 1.1(a)) without Sub having jurisdiction over accepted for payment any shares of the Company Common Stock pursuant to the Offer or (y) Sub shall not have issued a final orderaccepted for payment any shares of the Company Common Stock pursuant to the Offer on or prior to August 5, 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 nonappealable1997; provided, -------- however, that the right to terminate this Agreement pursuant to clauses (w) or ------- (x) above of this Section 8.1(b8.1(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 required to be performed at results in the failure of any such condition or prior to if the Effective Time has been 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 Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the cause acceptance for payment of, or resulted inpayment for, the failure shares of the Effective Time Company Common Stock pursuant to occur on the Offer or before the Merger and such order, decree or ruling or other action shall have become final and nonappealable; or
(c) by the Company in accordance with the provisions of Section 5.2, provided that the Company shall pay within 2 business days after termination to the Parent Termination Date or the Company Termination Date, as applicableentire Expense Fee under Section 6.8;
(d) by the Parent in the event that (i) the Board of Directors of the Company if there or any committee thereof shall have been failed to recommend the Offer, the Merger or this Agreement, including any failure to include such recommendation in the Schedule 14D-9, or shall have so resolved; (ii) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified (including without limitation by amendment of the Company's Schedule 14D-9) in a breach of any representation, warranty, covenant or agreement on the part of manner adverse to Parent or Sub its approval or recommendation of the Offer, the Merger Sub contained in or this Agreement, shall have approved or recommended any takeover proposal, shall have authorized the redemption or amendment of the Rights 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 after the Company has received a takeover proposal or shall not have been cured prior resolved to do any of the earlier of foregoing; (A) ten (10) Business Days following written notice of such breach to Parent and (Biii) the Company Termination Date; provided that the Company shall not have the right entered into any letter of intent, acquisition agreement or similar agreement with respect to terminate any superior proposal in accordance with Section 5.2(b) of this Agreement pursuant to this Section 8.1(d) if or the Company is then in material breach Board of Directors or any of its covenants or agreements contained in this Agreement;
(e) by Parent if there committee thereof shall have been a breach resolved to do so; or (iv) the Board of any representation, warranty, covenant or agreement on the part Directors of the Company contained in or any committee thereof upon a request to reaffirm the Company's approval or recommendation of the Offer, the Merger or this Agreement Agreement, shall have failed to do so within two business days after 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 request is not curable made 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 Parentso resolved.
Appears in 2 contracts
Sources: Merger Agreement (Netframe Systems Inc), Merger Agreement (Micron Technology Inc)
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 the Company:
(a) by mutual written consent of Parent the Company and the CompanyParent;
(b) by Parent or either the Company or Parent in writing in accordance with Section 7.1(c):
(i) if (A) any court of competent jurisdiction or other Governmental Entity having competent 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 or making illegal the consummation of the Merger and such order, decree, ruling or injunction or other action is or shall have become final and nonappealablenonappealable or if there shall be adopted any applicable law or regulation that makes consummation of the Merger illegal or otherwise prohibited; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(b)(i)(A) shall not be available to (x) the party seeking Company if its failure to terminate fulfill any material covenant or agreement under this Agreement has been the principal cause of, or resulted in, the failure of the Merger to occur on or before such date or (y) Parent if its or Merger Sub’s failure to fulfill any material covenant or agreement under this Agreement has been the principal cause of, or resulted in, the failure of the Merger to occur on or before such party date; or (B) the adoption of this Agreement by the stockholders of the Company shall not have been obtained by reason of the failure to obtain the Requisite Stockholder Vote for such purpose, or at any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8adjournment or postponement thereof;
(cii) by Parent if the Merger shall not have been consummated on or before September 15by January 31, 2008 2015 (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(c7.1(b)(ii) shall not be available to (A) the party seeking Company if its failure to terminate if fulfill any action of such party material covenant or any of its Subsidiaries agreement under this Agreement has been the principal cause of, or resulted, in the failure of the Merger to occur on or before such party date or (B) Parent if its or Merger Sub’s failure to fulfill any of its Subsidiaries to perform any of its obligations material covenant or agreement 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 Merger to occur on or before such date; or
(iii) in the Parent event of a breach by the other Party of any representation, warranty, covenant or other agreement contained in this Agreement that (A) would give rise to the failure of a condition set forth in Sections 6.2(a), 6.2(b) or 6.3(a) or 6.3(b) as applicable, and (B) cannot be or has not been cured by the earlier of 30 days after the giving of written notice to the breaching Party of such breach and the Termination Date (a “Terminable Breach”); provided, however, that the terminating Party (and, if the terminating Party is Parent, Merger Sub) is not then in Terminable Breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(c) by Parent if the Board shall (i) have made an Adverse Recommendation Change, (ii) fail to include in the Proxy Statement when mailed, the Company Termination DateRecommendation, as applicable;(iii) upon any tender offer or exchange offer that is commenced by any third party with respect to the outstanding Company Common Stock prior to the time at which the Company receives the Requisite Stockholder Vote, fail to recommend that the Company’s stockholders reject such tender offer or exchange offer and not tender their Company Common Stock into such tender offer or exchange offer within ten (10) Business Days after commencement of such tender offer or exchange offer (provided that a “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act shall not be deemed a failure with respect to this clause (iii)), (iv) have caused (or permitted) the Company to have breached in any material respect Section 4.2 or (v) approve or recommend, or enter into or allow the Company or any of its Subsidiaries to enter into, a merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar agreement, in each case, relating to an Acquisition Proposal; or
(d) by the Company if there shall have been the Board determines to enter into a breach of any representationdefinitive agreement with respect to a Superior Proposal; provided, warrantyhowever, 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 may not have the right to terminate this Agreement effect such termination pursuant to this Section 8.1(d7.1(d) if unless the Company is then in material breach has (i) complied with Section 4.2(c) and (ii) contemporaneously with such termination tendered payment to Parent of any of its covenants or agreements contained in this Agreement;the Termination Fee pursuant to Section 7.3(b).
(e) by Parent if there A terminating Party 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 provide written notice of such breach termination to the Company other Parties specifying with particularity the reason for such termination and (B) the Parent Termination Date; provided that Parent any termination 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 be effective immediately upon delivery of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior such written notice 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 (Owens & Minor Inc/Va/), Agreement and Plan of Merger (Medical Action Industries Inc)
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 other transactions contemplated hereby 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 other transactions contemplated hereby, 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 60 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 Board of Directors of Company (A) ten submits this Agreement to its stockholders without a recommendation for approval, or otherwise withdraws or materially and adversely modifies (10or publicly discloses its intention to withdraw or materially and adversely modify) Business Days following written notice of such breach its recommendation as contemplated by Section 6.3(a), or recommends to Parent and its stockholders an Acquisition Proposal other than the Merger, or (B) materially breaches its obligations under Section 6.3 or its obligations under Section 6.10; or (ii) a tender offer or exchange offer for 20% or more of the outstanding shares of Company Termination Date; provided Common Stock is commenced (other than by Parent or a Subsidiary thereof), and the Board of Directors of Company recommends that the stockholders of Company shall not have 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 right 10 business day period specified in Rule 14e-2(a) under the Exchange Act. The party desiring to terminate this Agreement pursuant to this Section 8.1(dclause (b), (c), (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 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 (Royal Bank of Canada), Merger Agreement (City National 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. (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 Notwithstanding any other provision of this Agreement, and notwithstanding Sabal Palm Shareholder Approval, this Agreement and the Bank Merger Agreement may be terminated and the Merger contemplated hereby may be and the Bank Merger abandoned at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by By mutual written consent of Parent the Board of Directors of Sabal Palm and the Company;Board of Directors or Executive Committee of the Board of Directors of SBC; or
(b) by Parent or By the Company if any court Board of competent jurisdiction or other Governmental Entity having jurisdiction over Directors of either Party in 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 event 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 other Party, which breach would result in, if occurring or continuing on the Closing Date, the failure of the conditions to the terminating Party’s obligations set forth in subsection (a) Sections 5.2 or (b) of Section 7.2 would 5.3, as the case dictates, and that cannot be satisfied and, in either such case, such breach is or has not curable or shall not have been cured prior within thirty (30) days after the giving of written notice to the earlier of (A) ten (10) Business Days following written notice breaching Party specifying the existence and nature of such breach to the Company and (B) the Parent Termination Date; breach, provided that Parent shall not have the right to terminate effect such cure shall not extend beyond the date set forth in subparagraph (d) below; or
(c) By the Board of Directors of either Party in the event that (i) any Regulatory Consent required to be obtained from any Governmental Authority has been denied by final non-appealable action of such Governmental Authority, or (ii) the Sabal Palm Shareholder Approval has not been obtained by reason of the failure to obtain the required vote at the Sabal Palm shareholders’ meeting where this Agreement was presented to such shareholders for approval and voted upon; or
(d) By the Board of Directors of either Party in the event that the Merger has not been consummated by March 31, 2022, if the failure to consummate the transactions contemplated hereby on or before such date is not caused by any breach of this Agreement by the Party electing to terminate pursuant to this Section 8.1(e6.1(d); or
(e) if Parent By the Board of Directors of SBC in the event that (i) Sabal Palm has withdrawn, qualified or Merger Sub is then modified the Sabal Palm Directors’ Recommendation in material breach of a manner adverse to Seacoast or shall have resolved to do any of the foregoing, (ii) Sabal Palm has failed to substantially comply with its covenants obligations under Sections 4.5 or agreements contained in this Agreement4.12, or (iii) the Board of Directors of Sabal Palm has recommended, endorsed, accepted or agreed to an Acquisition Proposal; or
(f) By the Board of Directors of Sabal Palm in the event that (i) the Board of Directors of Sabal Palm has determined in accordance with Section 4.12 that a Superior Proposal has been made with respect to it and has not been withdrawn, and (ii) neither Sabal Palm nor any of its Representatives has failed to comply in all material respects with Section 4.12; or
(g) By the Board of Directors of SBC if holders of more than five percent (5.0%) in the aggregate of the outstanding Sabal Palm Common Stock shall have voted such shares against this Agreement or the Merger at any meeting called for the purpose of voting thereon and shall have given notice of their intention to exercise their dissenters’ rights in accordance with the FBCA; or
(h) By the Board of Directors of Sabal Palm in the event the Board of Directors of Sabal Palm so determines by Parent the entire Board of Directors of Sabal Palm, at any time prior during the five (5)-day period commencing with the Determination Date (as defined below), if both of the following conditions are satisfied:
(i) the number obtained by dividing the Average Closing Price by the Starting Price (each as defined below) (the “Buyer Ratio”) shall be less than 0.85; and
(ii) (x) the Buyer Ratio shall be less than (y) the number (the “Index Ratio”) obtained by (A) dividing the Final Index Price by the Initial Index Price (each as defined below), and (B) subtracting 0.20 from the quotient in clause (ii)(y)(A); subject, however, to the date and time that following three (3) sentences. If Sabal Palm elects to exercise the Company Requisite Vote is obtained and a copy termination right pursuant to this Section 6.1(h), Sabal Palm shall give written notice to Seacoast not later than the end of the five (5)-day period referred to above (provided that such notice of election to terminate may be withdrawn at any time within the aforementioned five (5)-day period). During the five (5)-day period commencing with its receipt of such notice, Seacoast shall have the option to increase the consideration to be received by the holders of Sabal Palm Common Stock hereunder, by adjusting the Merger Consideration (calculated to the nearest one ten-thousandth (1/10,000)) to equal the lesser of (x) the quotient (rounded to the nearest one ten-thousandth (1/10,000)) of (A) the product of (1) the Starting Price, multiplied by (2) 0.85, and further multiplied by (3) the Merger Consideration (as then in effect), divided by (B) the Average Closing Price, and (y) the quotient (rounded to the nearest one ten-thousandth (1/10,000)) of (A) the product of (1) the Index Ratio, multiplied by (2) the Merger Consideration (as then in effect), divided by (B) the Buyer Ratio. If Seacoast so elects within such five (5)-day period, it shall give prompt written consent is delivered notice to Parent.Sabal Palm of such election and the revised Merger Consideration, whereupon no termination shall have occurred pursuant to this Section 6.1(h), and this Agreement shall remain in effect in accordance with its terms (except as the Merger Consideration shall have been so modified). For purposes of this Section 6.1(h), the following terms shall have the meanings indicated:
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
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 StockholdersClosing:
(a) by mutual upon the written consent agreement of Parent Purchaser and the CompanySeller;
(b) by Parent Purchaser, upon ten Business Days prior written notice to Seller, if there has been a material violation or breach by Seller of any covenant, representation or warranty contained in this Agreement which would prevent the Company if satisfaction of any court of competent jurisdiction the conditions set forth in Section 8.1 or other Governmental Entity having jurisdiction over the Company shall have issued a final order8.2, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such ordermaterial violation or breach could not be cured, decreeand such condition could not be satisfied, ruling on or other action is prior to the Outside Date, and such violation or shall have become final and nonappealablebreach has not been waived by Purchaser; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b13.1(b) shall not be available to Purchaser if the party seeking violation or breach by Seller arises out of, is result of or is related to terminate if such party or any breach by Purchaser of any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8representations, warranties, covenants, obligations or agreements;
(c) by Parent Seller, upon ten Business Days prior written notice to Purchaser, if there has been a material violation or breach by Purchaser of any covenant, representation or warranty contained in this Agreement which would prevent the Merger shall satisfaction of any of the conditions set forth in Section 9.1 or 9.2, and such material violation or breach could not have been consummated be cured, and such condition could not be satisfied, on or before September 15prior to the Outside Date, 2008 (the “Parent Termination Date”), and such violation or breach has not been waived by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)Seller; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c13.1(c) shall not be available to Seller if the party seeking violation or breach by Purchaser arises out of, is result of or is related to terminate if any action breach by Seller of such party or any of its Subsidiaries representations, warranties, covenants, obligations 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;agreements; or
(d) by Purchaser or by Seller if (i) the Company if there shall have been a breach Closing has not occurred on or prior to the six-month anniversary 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 date hereof (athe "OUTSIDE DATE") or (bii) of Section 7.3 would not be satisfied andif either a Governmental Body issues a permanent injunction or other Order prohibiting the Closing or if the European Commission issues a final, in either such casenon-appealable Order prohibiting the Closing; provided, 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(d13.1(d) if the Company is then in material breach of shall not be available to any of its covenants or agreements contained in this Agreement;
(e) by Parent if there shall have been a breach of party hereto whose failure to perform any representation, warranty, covenant or agreement on obligation hereunder or other breach has caused or resulted into the part failure of the Company contained in this Agreement Closing to occur on or before such that any condition set forth in subsection (a) date 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 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: Stock and Asset Purchase Agreement (Wix Filtration Media Specialists, Inc.), Stock and Asset Purchase Agreement (Dana 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 whether before or after the Company Shareholder Approval (if required by the Stockholders:applicable law):
(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 set forth in Exhibit A the Offer shall have issued a final orderterminated or expired in accordance with its terms without Sub having accepted for payment any Shares pursuant to the Offer or (y) all of the Offer Conditions have not been satisfied prior to June 30, decree 1997 or ruling or taken any other final action restraining, enjoining or otherwise prohibiting such later date as the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableparties may agree to; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b9.1(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 required results in the failure of any such Offer Condition or if the failure of such Offer Condition results from facts or circumstances that constitute a breach of 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 transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable, provided that the party seeking to be performed at terminate this Agreement shall have used its reasonable best efforts, subject to Section 7.11, to lift or vacate such order, decree or ruling;
(c) by Parent or Sub 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 such that any which (i) would give rise to the failure of a condition set forth in subsection paragraph (ad) or (be) 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 of Company;
(Ad) ten (10) Business Days following written notice of such breach to by Parent and (B) the Company Termination Date; provided that the Company shall not have the right or Sub if either Parent or Sub is entitled to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach Offer as a result of the occurrence of any event set forth in paragraph (c) of its covenants or agreements contained in Exhibit A to this Agreement;
(e) by Parent the Company if there shall have been a breach the Board of any representation, warranty, covenant or agreement on the part Directors of the Company contained reasonably determines that a Takeover Proposal constitutes a Superior Proposal and the Board of Directors of the Company concludes in good faith based on the advice of its outside counsel that termination of this Agreement such is necessary in order to comply with its fiduciary duties under applicable law; 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 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 may not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(e) if unless and until five business days have elapsed following delivery to Parent or Merger Sub is then in material breach of any a written notice (a "Section 9.1(e) Notice") of such conclusion by the Board of Directors of the Company and during such five business day period the Company has cooperated fully with Parent, including, without limitation, informing Parent of the terms and conditions of the Takeover Proposal and the identity of the Person making the Takeover Proposal, with the intent of enabling Parent to agree to a modification of the terms and conditions of this 44 Agreement so that the transactions contemplated hereby may be effected; and provided, further, that the Company may not terminate this Agreement pursuant to this Section 9.1(e) unless at the end of such five business day period the Board of Directors of the Company continues reasonably to believe its covenants or agreements contained in this Agreement; orprior conclusion that the Takeover Proposal constitutes a Superior Proposal and simultaneously with such termination the Company pays to Parent the Expenses specified under Section 7.3(b);
(f) by Parent at the Company, if (i) any time prior to the date and time that the Company Requisite Vote is obtained and a copy of the representations or warranties of Parent or Sub 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 Sub shall have failed to perform in any material respect any obligation or to comply in any material respect with any agreement or covenant of Parent or Sub to be performed or complied with by it under this Agreement and, in the case of (i) or (ii), such untruth or incorrectness or failure cannot be or has not been cured within 20 days after the giving of written consent is delivered notice to ParentParent or Sub, as applicable; or
(g) by the Company, if the Offer has not been timely commenced in accordance with Section 1.1.
Appears in 2 contracts
Sources: Merger Agreement (Scotsman Industries Inc), Merger Agreement (Kysor Industrial Corp /Mi/)
Termination. This Agreement may be terminated terminated, and the Merger transactions contemplated hereby may be abandoned at abandoned:
(a) By mutual written consent of Parent and the Company, by action taken or authorized by their respective Boards of Directors;
(b) At any time prior to the Effective Time, notwithstanding adoption thereof by either the StockholdersCompany or Parent, if:
(ai) by mutual written consent of Parent and the Company;
Acceptance Date shall not have occurred on or before June 30, 2010 (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“Outside 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, provided that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(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 has been the cause of, or resulted in, the failure of the Effective Time Offer to occur have been consummated on or before such date;
(ii) any Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the Parent Termination Date transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable (which order, decree, ruling or other action the Company Termination Dateparties shall have used their commercially reasonable efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 5.7); or
(iii) the Offer shall have expired or been terminated in accordance with the terms of this Agreement without Parent or Merger Sub having accepted for exchange any shares of Company Common Stock pursuant to the Offer; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(iii) 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 expiration or termination of the Offer without any shares of Company Common Stock having been accepted for exchange thereunder;
(c) By Parent if, prior to the Appointment Time, (i) the Company Board shall have withdrawn, or adversely modified (including by having made an Adverse Change Recommendation), or failed upon Parent’s written request to reconfirm any of its Recommendations within three (3) days following receipt of such written request by Parent; (ii) the Company Board shall have determined to recommend to the Company Stockholders that they approve an Acquisition Proposal other than that contemplated by this Agreement or shall have determined to accept a Superior Proposal; or (iii) the Company Board does not recommend that the Company Stockholders not tender their Company Common Stock in any tender or exchange offer that is an Acquisition Proposal (other than the Offer) within three (3) days following the commencement of such tender or exchange offer;
(d) by By the Company, prior to the Appointment Time, if the Company if Board determines to accept a Superior Proposal, but (i) only after the Company fulfills its obligations under Section 5.6, and (ii) subject to the Company concurrently fulfilling its obligations under Section 7.2(b) and Section 7.2(e)(i);
(e) By Parent, at any time prior to the Appointment Time, if: (i) since the date of this Agreement, there shall have been any event, development or change of circumstances that constitutes, has had or could reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and such Company Material Adverse Effect is incapable of being cured by the Outside Date or, if curable, is not cured by the Company within fifteen (15) days after receipt by the Company of written notice thereof from Parent; provided, however, that, at the time of the delivery of such notice, Parent or Merger Sub shall not be in material breach of its or their obligations under this Agreement; or (ii)(A) the Company has breached any representationcovenant or agreement on the part of the Company set forth in this Agreement, warranty(B) any representation or warranty of the Company set forth in this Agreement that is qualified as to materiality or Company Material Adverse Effect shall have been or become untrue or (C) any representation or warranty of the Company set forth in this Agreement that is not so qualified shall have been or become untrue in any material respect, where any such breach in Section 7.1(e)(ii)(A) would result in the failure of a condition set forth in Article 6 or any Offer Condition and is incapable of being cured by the Outside Date or, if curable, is not cured by the Company within fifteen (15) days after receipt by the Company of written notice of such breach from Parent; provided that, at the time of the delivery of such notice, Parent or Merger Sub shall not be in material breach of its or their obligations under this Agreement; or
(f) By the Company, at any time prior to the Appointment Time, if (i) since the date of this Agreement, there shall have been any event, development or change of circumstances that constitutes, has had or could reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and such Parent Material Adverse Effect is incapable of being cured by the Outside Date or, if curable, is not cured by Parent within fifteen (15) days after receipt by Parent of written notice thereof from the Company; provided, however, that, at the time of the delivery of such notice, the Company shall not be in material breach of its obligations under this Agreement; or (ii)(A) Parent has breached any covenant or agreement on the part of Parent or Merger Sub contained set forth in this Agreement, (B) any representation or warranty of Parent or Merger Sub set forth in this Agreement that is qualified as to materiality or Parent Material Adverse Effect shall have been or become untrue or (C) any representation or warranty of Parent or Merger Sub set forth in this Agreement that is not so qualified shall have been or become untrue in any material respect, where any such that any breach in Section 7.1(f)(ii)(A) would result in the failure of a condition set forth in subsection (a) Article 6 or (b) any Offer Condition and is incapable of Section 7.3 would not be satisfied andbeing cured by the Outside Date or, in either such caseif curable, such breach is not curable or shall not have been cured prior to the earlier by Parent within fifteen (15) days after receipt by Parent of (A) ten (10) Business Days following written notice of such breach to Parent and (B) from the Company Termination DateCompany; provided that provided, however, that, at the time of the delivery of such notice, the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then be in material breach of any of its covenants or agreements contained in obligations under 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 2 contracts
Sources: Merger Agreement (Comsys It Partners Inc), Merger Agreement (Manpower Inc /Wi/)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to the Effective Time, Time only as follows (notwithstanding any prior adoption thereof of this Agreement by the Stockholders:stockholders of the Company, except for Sections 9.01(e)(i) and 9.01(e)(iv) which may not be utilized after receipt of the Company Stockholder Approval):
(a) by mutual written consent of Parent each of the Company (acting with the prior approval of the Special Committee) and the CompanyParent Entities;
(b) by Parent either the Company (acting with the prior approval of the Special Committee) or the Company Parent Entities if any court Governmental Authority of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final orderenacted, decree issued, promulgated, enforced or ruling or taken entered any other final action Law permanently restraining, enjoining enjoining, prohibiting or otherwise prohibiting making illegal the Merger consummation of the Mergers and such order, decree, ruling or other action is or Law shall have become final and nonappealable; provided, howeverthat if such Governmental Authority is a Gaming Authority, that neither the Company nor the Parent Entities shall have the right to terminate under this Section 9.01(b);
(c) by either the Company (acting with the prior approval of the Special Committee) or the Parent Entities if the Effective Time shall not have occurred on or before April 2, 2025 (as such date may be extended pursuant to the terms of this Agreement or by the mutual written consent of the Company (acting with the prior approval of the Special Committee) and the Parent Entities, the “Outside Date”); provided that, the right to terminate this Agreement pursuant to under this Section 8.1(b9.01(c) shall not be available to the a party seeking to terminate if such party party’s or its Subsidiaries’ breach of any of its Subsidiaries has failed representations or warranties or failure 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 satisfy any agreements 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 covenants under this Agreement required to be performed at or prior to the Effective Time has been the cause of, primarily caused or resulted in, in the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(d) by the Company if there Parent Entities if:
(i) the Executive Committee (acting upon the recommendation of the Special Committee) or the Special Committee shall have been a effected an Adverse Recommendation Change; or
(ii) any breach or inaccuracy of any representation, warranty, representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub contained the Company Entities set forth in this Agreement such shall have occurred that (A) would cause any condition of the conditions set forth in subsection (aSection 8.02(a) or (bSection 8.02(b) of Section 7.3 would not to be satisfied and, in either such case, such breach and (B) is not curable or shall capable of being cured or, if curable, is not have been cured prior to by the earlier of (i) 60 days after written notice thereof is given by the Parent Entities to the Company Entities and (ii) the Outside Date; provided, that none of the Parent Entities or the Merger Subs is then in material breach of this Agreement; or
(e) by the Company (acting with the prior approval of the Special Committee) if:
(i) prior to the delivery of the Company Stockholder Approval, the Executive Committee (acting upon the recommendation of the Special Committee) determines to enter into an Acquisition Agreement with respect to a Superior Proposal; provided, that (A) ten prior to, or concurrently with, such termination the Company Entities pay (10or cause to be paid) Business Days following written notice of such breach to Parent the Company Termination Fee due under Section 9.03(a) and (B) the Company Termination Datesubstantially contemporaneously enters into such Acquisition Agreement; provided provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.01(e)(i) if (x) the Company is then in material breach of any of its covenants Stockholder Approval has been obtained or agreements contained in this Agreement(y) a Company Entity has materially breached Section 7.03;
(eii) by Parent if there shall have been a any breach or inaccuracy of any representation, warranty, representation or warranty or failure to perform any covenant or agreement on the part of the Company contained Parent Entities or the Merger Subs set forth in this Agreement such shall have occurred that (A) would cause any condition of the conditions set forth in subsection (aSection 8.03(a) or (bSection 8.03(b) of Section 7.2 would not to be satisfied and, in either such case, and (B) such breach or inaccuracy is not curable or shall capable of being cured or, if curable, is not have been cured prior to by the earlier of (Ai) ten (10) Business Days following 60 days after written notice of such breach thereof is given by the Company Entities to the Company Parent Entities and (Bii) the Parent Termination Outside Date; provided provided, that Parent shall a Company Entity is 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;
(iii) if (A) all of the conditions set forth in Section 8.01 and Section 8.02 have been and continue to be satisfied or, to the extent permitted by Law, waived by the Parent Entities (other than those conditions that by their nature cannot be satisfied other than at the Closing, provided, that such conditions to be satisfied at the Closing would be capable of satisfaction as of the date of the notice referenced in clause (B) below if the Closing were to occur on the date of such notice), (B) on or after the date the Closing should have occurred pursuant to Section 2.02, the Company has irrevocably delivered written notice to the Parent Entities to the effect that all of the conditions set forth in Section 8.01 and Section 8.03 have been satisfied or, to the extent permitted by Law, waived by the Company Entities (other than those conditions that by their nature cannot be satisfied other than at the Closing, provided, that such conditions to be satisfied at the Closing are capable of being satisfied as of the date of such notice if the Closing were to occur on the date of such notice) and the Company is prepared to consummate the Closing and (C) the Parent Entities fail to consummate the Closing on the earlier of (x) the fifth Business Days after delivery of the notice referenced in the preceding clause (B) and (y) one Business Day prior to the Outside Date; or
(fiv) by Parent at any time prior to the date and time that delivery to the Company Requisite Vote is obtained and a copy of duly executed countersignature pages to the written consent is Written Consent from all parties thereto, if duly executed countersignature pages to the Written Consent have not been delivered to Parentthe Company within twelve (12) hours after the execution and delivery of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Endeavor Group Holdings, Inc.), Merger Agreement (Emanuel Ariel)
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 Company Stockholder Approval:
(a) by mutual written consent of Parent Parent, 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 shall has not have been consummated on or before September October 15, 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 Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c9.01(b)(i) 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 Merger to occur have been consummated on or before the Parent Termination Date Outside Date; or
(ii) if any Governmental Entity issues an Order, decree or ruling or takes any other action permanently enjoining, restraining or otherwise prohibiting the Merger.
(c) by Parent, if the Company Termination Datebreaches or fails to perform in any material respect any of its representations, as applicablewarranties, covenants 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 8.02(a) or (b), and (ii) cannot be or has not been cured within thirty (30) days after the giving of written notice to the Company of such breach (provided that Parent is not then in material breach of any representation, warranty or covenant contained in this Agreement);
(d) by Parent:
(i) if the Company if there shall have been a breach of Board or any representationcommittee thereof withdraws or modifies, warranty, covenant or agreement on the part of Parent publicly proposes to withdraw 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 andmodify, in either such casea manner adverse to Parent, such breach is not curable its approval of the Merger or shall not have been cured this Agreement, or the Company Board or any committee thereof resolves to take any of the foregoing actions; or
(ii) if the Company enters into any definitive agreement, letter of intent, agreement in principle or similar agreement with respect to any Alternative Acquisition Proposal or if the Company Board has approved or recommended or publicly proposed to approve or recommend an Alternative Acquisition Proposal.
(e) by the Company, on or prior to the earlier 30th calendar day following the date of (A) ten (10) Business Days following written notice of such breach to Parent and (B) this Agreement, if the Company Termination DateBoard (upon the recommendation of the Special Committee) shall have finally determined to approve, endorse or recommend an Alternative Acquisition Proposal that constitutes a Superior Company Proposal; provided provided, however, that the Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(d9.01(e) if unless (i) the Company is then has complied with all of its obligations under Section 6.02 in accordance with the terms thereof, (ii) at least three (3) Business Days prior to terminating this Agreement pursuant to this Section 9.01(e) the Company has provided Parent with written notice advising Parent that the Company Board has received a Superior Company Proposal that it intends to accept, specifying the material breach terms and conditions of such Superior Company Proposal, and identifying the Person making such Superior Company Proposal, (iii) the Company has caused its financial and legal advisors to negotiate in good faith with Parent to attempt to make such adjustments in the financial terms of an amendment to this Agreement that are equal or superior to the financial terms of such Superior Company Proposal, and the Company and Parent have not agreed upon such an amendment and (iv) the Company has paid to (or concurrently pays to) Parent the Termination Fee in accordance with Section 9.02; or
(f) by the Company, if Parent or Sub breaches or fails to perform in any material respect any of its representations, warranties, covenants or agreements contained in this Agreement;
, which breach or failure to perform (ei) by Parent if there shall have been would give rise to the failure of 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 (aSection 8.03(a) or (b) of Section 7.2 would and (ii) cannot be satisfied and, in either such case, such breach is cured or has not curable or shall 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 (provided that the Company and (B) the Parent Termination Date; provided that Parent shall is 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 representation, warranty or agreements covenant 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: Merger Agreement (Illinois Tool Works Inc), Merger Agreement (CFC International 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 Stockholderstime:
(a) by mutual written consent agreement of Parent the Company and the CompanyBMS;
(b) by Parent or either the Company or BMS, if the Offer has not been consummated on or before the Termination Date; PROVIDED that this Agreement may not be terminated by any court party pursuant to this Section 8.01(b) if, at the time of competent jurisdiction termination, either (A) there exists a Non-Third Party Change of Control Injunction, or other Governmental Entity having jurisdiction over (B) 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 Market Failure Condition is or shall have become final and nonappealablenot satisfied; provided, howeverPROVIDED FURTHER, that the right to terminate this Agreement pursuant to this Section 8.1(b8.01(b) shall not be available to the any party seeking whose failure to terminate if such party or perform any of its Subsidiaries has failed obligations under this Agreement results in the failure of the Offer not to take such actions with respect thereto as are required to comply with Section 6.8be so consummated;
(c) by Parent the Company, if Acquisition Sub shall have failed to commence the Merger Offer in the time required by this Agreement;
(d) by BMS, if (i) any of the representations or warranties of the Company contained in this Agreement (other than the representations and warranties set forth in Sections 4.05(a) and (b) hereof) or the Commercial Arrangements, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall fail to be true and correct as of the date made (or if expressly made as of an earlier date, as of such date), other than for such failures to be true and correct that would not have, individually or in the aggregate, a Material Adverse Effect on the Company, (ii) the representations and warranties of the Company set forth in Sections 4.05(a) and (b) hereof shall fail to be true and correct in all material respects as of the date made, (iii) the Company shall have been consummated breached or failed to perform in any material respect any of its obligations under the Acquisition Agreement required to be performed on or before September 15prior to such time, 2008 or (iv) the “Parent Termination Date”Company shall have taken a Prohibited Action without the consent of BMS after the date of this Agreement; PROVIDED that such breach of representation or warranty or breach or failure to perform such obligation cannot be or has not been cured within 30 days after the giving of written notice to the Company of such breach or failure to perform; PROVIDED FURTHER, that BMS may not terminate this Agreement under this Section 8.01(d) if either BMS or Acquisition Sub is then in breach of or has failed to perform in any material respect any of its obligations hereunder or under the Stockholder Agreement or, in the case of BMS only, under the Commercial Arrangements;
(e) by the Company, if (i) any of the representations or warranties of BMS contained in this Agreement or the Commercial Arrangements, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall fail to be true and correct as of the date made (or if expressly made as of an earlier date, as of such date), other than for such failures to be true and correct that would not have, individually or by in the aggregate, a Material Adverse Effect on BMS, and (ii) either BMS or Acquisition Sub shall have breached or failed to perform in any material respect any of its obligations under this Agreement, the Stockholder Agreement or, in the case of BMS only, the Commercial Arrangements required to be performed on or prior to such time; PROVIDED that such breach of representation or warranty or breach or failure to perform such obligation cannot be or has not been cured within 30 days after the giving of written notice to BMS of such breach or failure to perform; PROVIDED FURTHER, that the Company may not terminate this Agreement under this Section 8.01(e) if it is then in breach of or has failed to perform in any material respect any of its obligations hereunder or under the Merger shall Commercial Arrangements or the Stockholder Agreement; or
(f) by either the Company or BMS, if:
(i) under the terms of this Agreement, subject to the satisfaction of the conditions set forth in Section 3.01(d), the Company, BMS and Acquisition Sub are obligated to effect the Additional Share Issuance, and the Additional Share Issuance is not have been consummated within thirty days after the date on or before September 30, 2008 (which Acquisition Sub has accepted for purchase Shares tendered in the “Company Termination Date”)Offer; provided, however, PROVIDED that the right to terminate this Agreement pursuant to this Section 8.1(c8.01(f)(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 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 cause of, or resulted in, results in the failure of the Effective Time Additional Share Issuance not to occur on or before the Parent Termination Date or the Company Termination Date, as applicablebe so consummated;
(dii) by under the Company if there shall have been a breach terms of any representationthis Agreement, warranty, covenant or agreement on subject to the part satisfaction of Parent or Merger Sub contained in this Agreement such that any condition the conditions set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and3.02(d), in either such casethe Company, such breach BMS and Acquisition Sub are obligated to effect the Market Failure Share Issuance, and the Market Failure Share Issuance is not curable or shall not have been cured prior consummated within thirty days after the termination of the Offer by either party pursuant to the earlier of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination DateSection 3.02(a); provided PROVIDED that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.01(f)(ii) if the Company is then in material breach of shall not be available to any party whose failure to perform any of its covenants or agreements contained obligations under this Agreement results in the failure of the Market Failure Share Issuance not to be so consummated; or
(iii) under the terms of this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on subject to the part satisfaction of the Company contained in this Agreement such that any condition conditions set forth in subsection (a) or (b) of Section 7.2 would not be satisfied and3.03(f), in either such casethe Company, such breach BMS and Acquisition Sub are obligated to effect the Open Market Top-Up Share Issuance, and the Open Market Top- Up Share Issuance is not curable or shall not have been cured prior to consummated within thirty days after the earlier final day of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination DateOpen Market Purchase Period; provided PROVIDED that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e8.01(f)(iii) if Parent or Merger Sub is then in material breach of shall not be available to any party whose failure to perform any of its covenants or agreements contained obligations under this Agreement results in the failure of the Open Market Top-Up Share Issuance not to be so consummated. The party desiring to terminate this Agreement; or
Agreement pursuant to this Section 8.01 (fother than pursuant to Section 8.01(a)) by Parent at any time prior shall give notice of 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: Acquisition Agreement (Imclone Systems Inc/De), Acquisition Agreement (Bristol Myers Squibb Co)
Termination. This Agreement may be terminated only as follows (it being understood and the Merger contemplated hereby agreed that this Agreement may not be abandoned terminated for any other reason or on any other basis):
(a) at any time prior to the Effective Time, notwithstanding adoption thereof by Time (whether prior to or after the Stockholders:
(areceipt of the Requisite Stockholder Approval) by mutual written consent agreement of Parent and the Company;
(b) by either Parent or the Company Company, at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite Stockholder Approval), 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 Legal Restraint is or shall have in effect that has become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall will not be available to the party seeking any Party (i) that has failed to terminate use its reasonable best efforts to resist, appeal, obtain consent pursuant to, resolve or lift, as applicable, such Legal Restraint or (ii) if such party Legal Restraint was primarily caused by, or primarily resulted from, such Party’s breach of, or failure to perform or comply with, any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8covenants or agreements hereunder;
(c) by either Parent or the Company, at any time prior to the Effective Time (whether prior to or after the receipt of the Requisite Stockholder Approval) if the Merger shall Effective Time has not have been consummated occurred by 11:59 p.m. on or before September 15May 7, 2008 2020 (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 will not be available to any Party whose action or failure to act (which action or failure to act constitutes a breach by such Party of this Agreement) has been the party seeking primary cause of, or primarily resulted in, either (i) the failure to terminate if any action satisfy the conditions to the obligations of such party the terminating Party to consummate the Merger set forth in Article VII prior to the Termination Date; or any of its Subsidiaries or (ii) the failure of such party the Effective Time to have occurred prior to the Termination Date;
(d) by either Parent or the Company, 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 Time, if the Company fails to obtain the Requisite Stockholder Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof) at which a vote is taken on the Merger; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(d) will not be available to any Party whose 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 or before the Parent Termination Date or Requisite Stockholder Approval at the Company Termination Date, as applicable;
Stockholder Meeting (d) by the Company if there shall have been a breach of or any representation, warranty, covenant adjournment 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 Agreementpostponement thereof);
(e) by Parent Parent, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company has 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 would result in a failure of a condition set forth in subsection (a) Section 7.1 or (b) of Section 7.2 would not be satisfied and7.2, in either such case, except that if such breach is not curable or shall not have been capable 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 will not have the right be entitled to terminate this Agreement pursuant to this Section 8.1(e) prior to the delivery by Parent to the Company of written notice of such breach, delivered at least 30 days prior to such termination, stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(e) and the basis for such termination, it being understood that Parent will not be entitled to terminate this Agreement if such breach has been cured prior to the end of such 30-day period (to the extent capable of being cured); provided, however, that Parent is not then in material breach of this Agreement so as to cause any of the conditions set forth in Section 7.3(a) or Section 7.3(b) not to be capable of being satisfied;
(f) by Parent, if at any time the Company Board (or the Company Special Committee) has effected a Company Board Recommendation Change;
(g) by the Company, if Parent or Merger Sub has breached or failed to perform any of its respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would result in a failure of a condition set forth in Section 7.1 or Section 7.3, except that if such breach is capable of being cured by the Termination Date, the Company will not be entitled to terminate this Agreement pursuant to this Section 8.1(g) prior to the delivery by the Company to Parent of written notice of such breach, delivered at least 30 days prior to such termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 8.1(g) and the basis for such termination, it being understood that the Company will not be entitled to terminate this Agreement if such breach has been cured prior to the end of such 30-day period (to the extent capable of being cured); provided, however, that the Company is not then in material breach of this Agreement so as to cause any of its covenants the conditions set forth in Section 7.2(a) or agreements contained Section 7.2(b) not to be capable of being satisfied;
(h) by the Company, at any time prior to receiving the Requisite Stockholder Approval if (i) the Company has received a Superior Proposal; (ii) the Company Board (or the Company Special Committee) has authorized the Company to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal; and (iii) concurrently with such termination the Company pays the Company Termination Fee due to Parent in this Agreementaccordance with Section 8.3(b); or
(fi) by Parent the Company, at any time prior to the date Effective Time (whether prior to or after the receipt of the Requisite Stockholder Approval), if (i) all of the conditions set forth in Section 7.1 and time Section 7.2 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 waived; (ii) the Company has irrevocably notified Parent in writing five Business Days prior to such termination that (A) the Company is ready, willing and able to consummate the Closing, and (B) all conditions set forth in Section 7.3 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) or that the Company Requisite Vote is obtained irrevocably waiving any unsatisfied conditions set forth in Section 7.3; (iii) the Company has given Parent written notice at least one Business Day prior to such termination stating the Company’s intention to terminate this Agreement pursuant to this Section 8.1(i) if Parent and a copy of Merger Sub fail to consummate the written consent is delivered Closing on the date required pursuant to ParentSection 2.3; and (iv) Parent and Merger Sub fail to consummate the Closing within two Business Days from the date required pursuant to Section 2.3.
Appears in 2 contracts
Sources: Merger Agreement (Liberty Tax, Inc.), Merger Agreement (Vitamin Shoppe, Inc.)
Termination. (A) This Agreement may be terminated and shall terminate (the Merger contemplated hereby may be abandoned at any time prior “Termination Date”) on the first to occur of (i) the Effective Time, notwithstanding adoption thereof by date on which 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 Parties mutually agree to terminate this Agreement pursuant and (ii) the termination date set forth on any notice given in accordance with Section 10.2(b) or Section 10.2(c) (each, a “Termination Notice”). Each Termination Notice shall be provided in writing and set forth in reasonable detail the basis for the termination and the Termination Date. If requested by Owner, the Manager, following its receipt of a Termination Notice, shall continue to perform the Services in accordance with this Section 8.1(bAgreement for a period not to exceed 120 days of such notice and, in such event, the date on which such continued Services are no longer necessary (as specified by Owner in the Termination Notice) shall not will be available considered the Termination Date for purposes hereof.
(B) Owner may terminate this Agreement by delivery of a Termination Notice to the party seeking to terminate if such party or Manager following the occurrence of any of its Subsidiaries has failed to take such actions the following events:
(i) the dissolution and liquidation of AECP LP in connection with respect thereto as are required to comply with Section 6.8the sale of all or substantially all of the Owner’s assets;
(cii) by Parent if during the Merger shall not have been consummated on or before September 15, 2008 Bankruptcy of the Manager;
(iii) at any time during the “Parent Termination Date”), or 30 days after 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 Manager of its obligations under this Agreement required hereunder that has had or, if continued, is reasonably likely to be performed at or prior to have a Material Adverse Effect, which breach remains uncured 60 days following 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) receipt by the Company if there shall have been a breach Manager 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 by the Owner;
(iv) at any time within 15 Business Days following (A) the determination by a court of competent jurisdiction that the Manager has defrauded AECP LP or Owner or stolen or misappropriated any of the Assets or funds of Owner and (B) such circumstances have not been cured or remedied (which may include a cash payment) by Manager within 30 days following such judicial determination;
(v) the Company Termination DateGeneral Partner is removed as the general partner of AECP LP by the majority vote of the Common Units and the General Partner did not vote in favor of or otherwise approve such removal; provided that or
(vi) upon the Company shall not have approval at a special meeting of the right holders of Common Units called for the purpose of voting to terminate this Agreement, which approval is by the holders of not less than a majority of the Common Units outstanding as of the record date established for such special meeting excluding for purposes of such determination Common Units and any vote in respect thereof) owned by the General Partner or its sponsor or any Affiliate(s) thereof.
(C) The Manager may terminate this Agreement pursuant by delivery of a Termination Notice to this Section 8.1(dOwner (i) if during or following the Company is then in Bankruptcy of the Owner or (ii) upon a material breach of any by Owner of its covenants or agreements contained in this Agreement;
(e) obligations hereunder that remains uncured 60 days following the receipt by Parent if there shall have been a breach Owner 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 by 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 ParentManager.
Appears in 2 contracts
Sources: Management Services Agreement (American Energy Capital Partners, LP), Management Services Agreement (American Energy Capital Partners, LP)
Termination. This Except as provided in Section 8.2, 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 the Company and Parent;
(b) by Parent if the Requisite Stockholder Approval shall not have been obtained by the Company and delivered to Parent within four (4) hours after the execution and delivery of this Agreement by Parent and the Company;
(bc) 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 Closing Date shall not have been consummated on or before September 15occurred by November 30, 2008 2012 (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 the any party seeking whose action or failure to terminate if any action act has been a principal cause of such party or any of its Subsidiaries or resulted in the failure of the Merger to occur on or before such party date and such action or failure to act constitutes a breach of this Agreement;
(d) by Parent or the Company if any Legal Requirement shall be in effect which has the effect of its Subsidiaries to perform making the Merger illegal or otherwise prohibits prevents consummation of the Merger, provided that in the case of any such Legal Requirement that is an Order, such Order has become final and non-appealable;
(e) by Parent if it is not in material breach of its obligations under this Agreement required to be performed at or prior to the Effective Time and there 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 or inaccuracy in 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 the conditions set forth in subsection (aSections 6.2(a) or (band 6.2(b) of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to as of the earlier of (A) ten (10) Business Days following written notice time of such breach or inaccuracy and such breach or inaccuracy has not been cured within thirty (30) calendar days after written notice thereof to the Company and Company; provided, however, that no cure period shall be required (Bi) the Parent Termination Date; provided that Parent shall for a breach or inaccuracy which by its nature cannot have the right to terminate this Agreement pursuant to this Section 8.1(ebe cured or (ii) if Parent or Merger Sub is then in material breach of any of its covenants the conditions to Closing in Article VI for the benefit of Parent are incapable of being satisfied on or agreements contained in this Agreementbefore the End Date; or
(f) by the Company if it is not in material breach of its obligations under this Agreement and there has been a breach of or inaccuracy in any representation, warranty, covenant or agreement of Parent at any time prior to the date and time contained in this Agreement such that the Company Requisite Vote is obtained conditions set forth in Sections 6.3(a) and a copy 6.3(b) would not be satisfied as of the time of such breach or inaccuracy and such breach or inaccuracy has not been cured within thirty (30) calendar days after written consent is delivered notice thereof to Parent; provided, however, that no cure period shall be required (i) for a breach or inaccuracy which by its nature cannot be cured or (ii) if any of the conditions to Closing in Article VI for the benefit of the Company are incapable of being satisfied on or before the End Date.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salesforce Com 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 and the Company;; or
(b) by Parent, upon any breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement that, either individually or in the aggregate, would constitute grounds for Parent to elect not to consummate the Merger pursuant to Section 5.2(a) or (b), if either (i) such breach cannot be cured prior to the Closing Date, or (ii) has not been cured within 45 days after the date on which written notice of such breach is given by Parent to the Company, specifying in reasonable detail the nature of such breach;
(c) by the Company, upon any breach of any representation, warranty, covenant or agreement of Parent set forth in this Agreement that, either individually or in the aggregate, would constitute grounds for the Company to elect not to consummate the Merger pursuant to Section 5.3(a) or (b), if either (i) such breach cannot be cured prior to the Closing Date, or (ii) has not been cured within 45 days after the date on which written notice of such breach is given by the Company to Parent, specifying in reasonable detail the nature of such breach;
(d) by either Parent or the Company Company, if any court of competent jurisdiction permanent injunction or other action by any Governmental Entity having jurisdiction over 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 nonappealable; provided, however, provided that the such right to terminate this Agreement pursuant to this Section 8.1(b) of termination shall not be available to any party if such party shall have failed to make reasonable efforts to prevent or contest the imposition of such injunction or action and such failure materially contributed to such imposition;
(e) by either Parent or the Company if (other than due to the willful failure of 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 hereunder which are required to be performed at or prior to the Effective Time has been Time) 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 consummated on or 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 representationOctober 31, 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; or1997.
(f) by either Parent at any time prior or the Company, if the approval of the stockholders of the Company of this Agreement and the Merger required for the consummation of the Merger shall not have been obtained by October 31, 1997;
(g) by either Parent or the Company, if (A) the Board of Directors of the Company shall have approved or have recommended to the date shareholders of the Company a Transaction Proposal or shall have resolved to do the foregoing; or (B) a tender offer or exchange offer for not less than a majority of the outstanding Voting Stock (as defined herein) of the Company (a "Takeover Proposal") is commenced (other than by Parent or any of its subsidiaries or affiliates), and time the Board of Directors of the Company recommends that the Company Requisite Vote is obtained and a copy shareholders of the written consent is delivered Company tender their shares in such Takeover Proposal or otherwise fails to recommend that such shareholders reject such Takeover Proposal within ten business days of the commencement thereof; provided, however, that in each case this Agreement may only be terminated by the Company if, and only to the extent that, the Board of Directors of the Company, after advice of independent legal counsel, determines in good faith that failure to take such action could reasonably be deemed to constitute a breach of the Board's fiduciary duties under applicable law;
(h) by Parent in the event of a material adverse change in the business, prospects or financial condition of the Company;
(i) by the Company in the event of a material adverse change in the business, prospects or financial condition of Parent; or
(j) by either Parent or the Company after August 31, 1997, if the Form S-4 has not been declared effective by the SEC; provided that such right of termination shall not be available to a party if such party shall have materially breached its obligation under Section 4.14 of this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Medarex Inc), Agreement and Plan of Reorganization (Medarex Inc)
Termination. This Certain of the Parties may terminate this Agreement may be terminated as provided below:
(i) Fields, the Principal Shareholder, and the Merger contemplated hereby Company may be abandoned terminate this Agreement by mutual written consent at any time prior to the Effective Time, notwithstanding adoption thereof by the Stockholders:
(a) by mutual written consent of Parent and the CompanyClosing;
(bii) 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 Fields may terminate this Agreement pursuant to this Section 8.1(b) shall not be available by giving written notice 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 Company and 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 Principal Shareholder on or before the Parent Termination Date or Closing if Fields is not satisfied with the results of its continuing business, legal, and accounting due diligence regarding the Company Termination Date, as applicableand its Subsidiaries;
(diii) Fields may terminate this Agreement by giving written notice to the Company and the Principal Shareholder any time prior to the Closing (A) in the event any of the Company or the Principal Shareholder has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, Fields has notified the Company of the breach, and the breach has continued without cure for a period of seven (7) business days after the notice of breach; or (B) if there the Closing shall not have been a breach occurred on or before October 1, 1997, by reason of the failure of any condition precedent under Section 8(a) hereof (unless the failure results primarily from Fields itself breaching any representation, warranty, or 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;); and
(eiv) 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 may terminate this Agreement pursuant by giving written notice 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 Fields and the Principal Shareholder at any time prior to the date and time that Closing (A) in the event Fields has breached any material representation, warranty, or covenant contained in this Agreement in any material respect, any of the Company Requisite Vote is obtained and a copy or the Principal Shareholder has notified Fields of the written consent is delivered breach, and the breach has continued without cure for a period of seven (7) business days after the notice of breach or (B) if the Closing shall not have occurred on or before October 1, 1997 by reason of the failure of any condition precedent under Section 8(b) hereof (unless the failure results primarily from any of the Company or the Principal Shareholder themselves breaching any representation, warranty, or covenant contained in this Agreement). . If any Party terminates this Agreement pursuant to ParentSection 10(a) above, all rights and obligations of the Parties under this Agreement and under the Related Transactions Documents shall terminate without any Liability of any Party to any other Party (except for any Liability of any Party then in breach).
Appears in 2 contracts
Sources: Stock Acquisition Agreement (Fields MRS Original Cookies Inc), Stock Acquisition Agreement (Fields MRS Original Cookies Inc)
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 any requisite approval and adoption thereof of this Agreement and the Transactions by the Stockholdersshareholders of the Company or stockholders of NGA, as follows:
(a) by mutual written consent of Parent NGA and the Company;
(b) by Parent either NGA 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 on or before September 15, 2008 occurred prior to the date that is 180 days 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 Outside Date”); provided, however, that in the event that any Law is enacted after the date hereof extending the applicable waiting period under the HSR Act, the Outside Date shall automatically be extended by the length of any such extension; provided, further, that this Agreement may not be terminated under this Section 9.01(b) by or on behalf of any party that is in breach or violation of any representation, warranty, covenant, agreement or obligation contained herein and such breach or violation is a material cause of the failure of a condition set forth in Article VIII to be satisfied on or prior to the Outside Date;
(c) by either NGA or the Company if any Governmental Order has become final and nonappealable and has the effect of making consummation of the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions;
(d) by either NGA or the Company if the NGA Proposal set forth in clause (i) of the definition thereof shall fail to receive the requisite vote for approval at the NGA Stockholders’ Meeting (subject to any adjournment, postponement or recess of such meeting); provided that the right to terminate this Agreement pursuant to under this Section 8.1(c9.01(d) shall not be available to NGA if, at the party seeking to terminate if any action time of such party termination, NGA (i) is in willful 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 and agreements under Section 7.04, or agreements (ii) is in breach or violation of any representation, warranty, covenant, agreement or obligation contained in this Agreementherein and such breach or violation is a material cause of the failure of such NGA Proposal to receive the requisite vote for approval;
(e) by Parent if there shall have been NGA upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained or Merger Sub set forth in this Agreement, or if any representation or warranty of the Company or Merger Sub shall have become untrue, in either case such that the condition set forth in Sections 8.02(a) or 8.02(b) would not be satisfied (“Terminating Company Breach”); provided, that NGA has not waived such Terminating Company Breach and NGA is not then in breach of its representations, warranties, covenants or agreements in this Agreement such that any the condition set forth in subsection (aSections 8.03(a) or (b8.03(b) of Section 7.2 would not be satisfied andsatisfied; provided, in either further, that, if such caseTerminating Company Breach is curable by the Company or Merger Sub, NGA may not terminate this Agreement under this Section 9.01(e) for so long as the Company or Merger Sub (as applicable) continues to diligently exercise its reasonable efforts to cure such breach, unless such breach is not curable or shall not have been cured prior to the earlier of within thirty (A30) ten (10) Business Days following written days after notice of such breach is provided by NGA 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 AgreementSub; or
(f) by Parent at the Company upon a breach of any time prior to representation, warranty, covenant or agreement on the date and time part of NGA set forth in this Agreement, or if any representation or warranty of NGA shall have become untrue, in either case such that the condition set forth in Sections 8.03(a) or 8.03(b) would not be satisfied (“Terminating NGA Breach”); provided, that the Company Requisite Vote has not waived such Terminating NGA Breach and the Company or Merger Sub are not then in breach of its representations, warranties, covenants or agreements in this Agreement such that the condition set forth in Sections 8.02(a) or 8.02(b) would not be satisfied; provided, further, that, if such Terminating NGA Breach is obtained and a copy curable by NGA, the Company may not terminate this Agreement under this Section 9.01(f) for so long as NGA continues to diligently exercise its reasonable efforts to cure such breach, unless such breach is not cured within thirty (30) days after notice of such breach is provided by the written consent is delivered Company to ParentNGA.
Appears in 2 contracts
Sources: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition Corp.)
Termination. This Agreement may be terminated and the Merger contemplated hereby Offer, the Mergers and the other Transactions may be abandoned abandoned, at any time prior to before the Effective Acceptance Time, notwithstanding adoption thereof as follows (with any termination by the Stockholders:Parent also being an effective termination by Purchaser):
(a) by mutual written consent of Parent and the Company;
(b) by Parent or the Company, in the event that (i) the Company if any court is not then in material breach of competent jurisdiction or other Governmental Entity having jurisdiction over the Company this Agreement and (ii) (A) Parent and/or Purchaser shall have issued a final orderbreached, decree failed to perform or ruling violated their respective covenants or taken agreements under this Agreement in any other final action restrainingmaterial respect, enjoining or otherwise prohibiting (B) any of the Merger representations and such order, decree, ruling or other action is or warranties of Parent and Purchaser set forth in this Agreement shall have become final inaccurate, which inaccuracy (without giving effect to any qualification as to materiality or Parent Material Adverse Effect contained therein) would reasonably be expected to have a Parent Material Adverse Effect, in each of clauses (A) and nonappealable; (B) to the extent such breach, failure to perform, violation or inaccuracy is incapable of being cured, or is not cured by Parent and/or Purchaser within the earlier of (x) thirty (30) calendar days following receipt of written notice from the Company of such breach, failure to perform, violation or inaccuracy or (y) the then-scheduled expiration date of the Offer (provided, howeverfor purposes of this clause (y), that Parent may irrevocably extend the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available expiration date of the Offer to the party seeking thirtieth (30th) calendar day after the written notice contemplated in clause (x) in order to terminate if such party or any of its Subsidiaries has failed extend the cure period to take such actions with respect thereto as are required to comply with Section 6.8thirty (30) calendar days);
(c) by Parent, in the event that (i) neither Parent nor Purchaser is then in material breach of this Agreement and (ii) (A) the Company shall have breached, failed to perform or violated its covenants or agreements under this Agreement, or (B) any of the representations and warranties of the Company set forth in this Agreement shall have become inaccurate, in either case of clauses (A) or (B) in a manner that would give rise to the failure of any of the conditions to the Offer set forth in clause (F)(1) or (F)(2) of Annex B and such breach, failure to perform, violation or inaccuracy is not capable of being cured by the Outside Date or, if capable of being cured by the Outside Date, is not cured by the Company within thirty (30) calendar days following receipt of written notice from Parent of such breach, failure to perform, violation or inaccuracy;
(d) by either Parent or the Company, if the Merger Offer shall not have expired or been consummated terminated in accordance with the terms of this Agreement and the Offer without Purchaser having accepted for payment any Company Shares tendered pursuant to the Offer by midnight, Eastern Standard Time, on or before September 15May 4, 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 Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c9.1(d) shall not be available to the party seeking any Party 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 has been a proximate cause of (i) any of the conditions to the Offer set forth in Annex B having failed to be performed at satisfied and such action or failure to act constitutes a material breach of this Agreement or (ii) the expiration or termination of the Offer in accordance with the terms of this Agreement and the Offer without Purchaser having accepted for payment any Company Shares tendered pursuant to the Offer and such action or failure to act constitutes a material breach of this Agreement;
(e) by Parent, if, prior to the Effective Time has been the cause of, or resulted inAcceptance Time, the failure Company Board 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 Directors shall have been effected a breach Change 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 DateRecommendation; provided that the Company shall not have the Parent’s right to terminate this Agreement pursuant to this Section 8.1(d9.1(e) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
shall expire at 5:00 p.m. (eEastern Standard Time) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part tenth (10th) business day following the date on which such Change 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; orRecommendation occurs;
(f) by either the Company or Parent at any time 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 consummation of the Offer or the Mergers; or
(g) by the Company in order to effect a Change of Recommendation and enter into a definitive agreement providing for a Superior Proposal, provided that (i) the Company has complied in all material respects with the terms of Section 6.3(e)(ii) and (ii) immediately prior (and as a condition) to the date and time that termination of this Agreement, the Company Requisite Vote is obtained and a copy of pays to Parent the written consent is delivered Company Termination Fee payable pursuant to ParentSection 9.2(b).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Homeaway Inc), Agreement and Plan of Reorganization (Expedia, Inc.)
Termination. This Agreement may be terminated terminated, and the Merger contemplated hereby may be abandoned at any time abandoned, prior to the Effective Time, notwithstanding adoption thereof either before or after its approval by the Stockholders:
stockholders of RedFed: (a) by the mutual written consent of Parent Golden State and the Company;
RedFed; (b) by Parent Golden State or RedFed, if its Board of Directors so determines by vote of a majority of the Company if any court members thereof, in the event 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(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 of the Effective Time stockholders of RedFed to occur on approve this Agreement, or before the Parent Termination Date or the Company Termination Date, as applicable;
(dii) a material breach by the Company if there shall have been a breach other party hereto 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 herein which is not cured or 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 to Parent and (B) the Company Termination Dateparty committing such breach by the other party; provided provided, however, that the Company neither party shall not have the right to terminate this Agreement pursuant to clause (ii) of this Section 8.1(d7.1(b) unless any breach of representation or warranty asserted as the basis for such termination, together with all other such breaches, would entitle the party receiving such representation or warranty under Section 6.2(a) (in the case of a breach of representation or warranty by RedFed) or Section 6.3(a) (in the case of a breach of representation or warranty by Golden State) not to consummate the transactions contemplated hereby; (c) by Golden State or RedFed by written notice to the other party if either (i) the Company condition set forth in Section 6.1(b) shall not have been satisfied by the Termination Date (as defined below); or (ii) any governmental authority of competent jurisdiction shall have issued a final, nonappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement; (d) by Golden State or RedFed, if its Board of Directors so determines by vote of a majority of the members thereof, in the event that the Merger is then in material not consummated by the Termination Date, unless the failure to so consummate by such time is due to the breach of any of its covenants material representation, warranty or agreements covenant contained in this Agreement;
Agreement by the party seeking to terminate. The term "Termination Date" shall mean July 31, 1998; provided, however, that either party hereto shall have the right to extend such Termination Date for up to an additional 45 days if, prior to the Termination Date, such party notifies the other party in writing that such party believes that the approvals, consents or waivers to be obtained by such party are imminent and a reasonable factual basis for such party's belief that such approvals, consents or waivers are imminent is set forth in such written notice; (e) by Parent Golden State if there the RedFed Board shall have been failed to make its recommendation referred to in Section 5.11, withdrawn such recommendation or modified or changed such recommendation in a breach of manner adverse 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 respect to the earlier interests 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
Golden State. (f) by Parent at RedFed if Golden State shall have entered into a letter of intent or a definitive agreement with respect to a merger, consolidation or similar transaction involving, or any time prior to the date and time that the Company Requisite Vote is obtained and a copy purchase of all or substantially all of the written consent is delivered consolidated assets, deposits or equity securities of, Golden State, pursuant to Parentwhich the stockholders of Golden State would hold less than 50% of the common equity of the surviving entity immediately after the transaction.
Appears in 2 contracts
Sources: Merger Agreement (Golden State Bancorp Inc), Merger Agreement (Redfed Bancorp 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 Notwithstanding anything herein to the contrary, this Agreement may be terminated and the Merger contemplated hereby Transactions that have not been consummated prior to such termination may be abandoned at any time prior to the Effective TimeOption Closing Date, notwithstanding adoption thereof by whether before or after the Stockholdersreceipt of the Required Unitholder Approvals:
(a) by By the mutual written consent of Parent and all of the CompanyParties in a written instrument;
(b) by Parent By either the NGP Parties, on one hand, or the Company if any court Partnership, on the other, upon written notice to the other (in the case of competent jurisdiction clauses (iv) and (v), delivered prior to the Transaction Fee Payment Date), if:
(i) the Required Unitholder Approvals have not been obtained 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 nonappealableTermination Date; provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(b10.1(b)(i) shall will not be available to the a 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 material obligation under this Agreement required to be performed at or prior to the Effective Time other material breach of this Agreement has been the primary cause of, or resulted in, the failure of the Effective Time Required Unitholder Approvals 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 Law or Order or regulation or taken any other action, in each case permanently restraining, enjoining or otherwise prohibiting the consummation of any of the Transactions or making any of the Transactions illegal and such Law or Order or other action has become final and nonappealable (provided that the terminating party is not then in breach of Section 7.3;
(iii) the Required Unitholder Approvals are not all obtained at the Unitholder 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 (treating the NGP Parties as one party for the purposes of this Section 10.1(b)(iv)), 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 Transaction Fee Payment Date (provided in any such case that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein); or
(v) there has been a material breach of any of the covenants or agreements set forth in this Agreement on the part of Parent or Merger Sub contained in the other party (treating the NGP Parties as one party for the purposes of this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would 10.1(b)(v)), which breach has not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to within 30 days following receipt by the earlier breaching party of (A) ten (10) Business Days following written notice of such breach from the terminating party, or which breach, by its nature, cannot be cured prior to Parent and the Transaction Fee Payment Date (B) the Company Termination Date; provided in any such case 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 of any representation, warranty, covenant or other agreement on contained herein);
(c) By the part of NGP Parties, upon written notice to 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 Partnership delivered prior to the earlier receipt of the Required Unitholder Approvals, if (Ai) ten the Partnership has willfully and materially breached Section 7.7 or (10ii) Business a Change in Recommendation has occurred.
(d) By the NGP Parties, upon written notice to the Partnership delivered within eight Trading Days following the end of the applicable Measurement Window if the Measurement Window Average Price was less than $1.50 for such Measurement Window; provided, that no such notice may be delivered to the Partnership after the Required Unitholder Approvals are obtained.
(e) By the Conflicts Committee, upon written notice of such breach to the Company NGP Parties delivered prior to the receipt of the Required Unitholder Approval, if at any time after the date of this Agreement, the Conflicts Committee (after consultation with, and (Btaking into account the advice of, its outside legal advisors and financial consultants) the Parent Termination Date; provided determines that Parent shall not have the right to terminate terminating this Agreement pursuant to this Section 8.1(e) if Parent in favor of a Competing Proposal is either in the best interest of the Partnership or Merger Sub is then in material breach the best interests of any of its covenants or agreements contained in this Agreement; orthe Non-Affiliated Unitholders.
(f) by Parent at any time By the NGP Parties upon written notice to the Partnership delivered prior to the date and time that Transaction Fee Payment Date, if a Material Adverse Change has occurred.
(g) By the Company Requisite Vote is obtained and a copy NGP Parties upon written notice to the Partnership delivered prior to the Transaction Fee Payment Date, if the transactions contemplated by the R&M Purchase Agreement have not closed within seven Business Days following the Unitholder Approval Date. In addition, this Agreement will automatically terminate, with no further action by any Party hereto, upon the termination of the R&M Purchase Agreement prior to the closing of the transactions contemplated thereby. The Partnership will provide prompt written consent is delivered notice to Parentthe NGP Parties of any such termination.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Eagle Rock Energy Partners L P), Securities Purchase and Global Transaction Agreement (Eagle Rock Energy Partners L P)
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 stockholders of Company:
(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 shall not have been consummated by February 15, 2001 (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 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;
(d) by either Company or Parent if (1) the Company Stockholders' Meeting (including any adjournments thereof) shall have been held and completed and the stockholders of Company shall have taken a final vote on a proposal to adopt this Agreement, and (2) the required approval of the stockholders 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 Company or any of its Subsidiaries or Parent where the failure to obtain Company stockholder approval shall have been caused by the action or failure to act of Company or Parent, respectively, and such party action or any failure to act constitutes a breach by Company or Parent, respectively, 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;
(de) 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 been inaccurate when made or 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 representations and warranties or breach by Parent is not curable or by Parent, then this Agreement shall not have been cured prior terminate pursuant to this Section 7.1(e) with respect to a particular breach or inaccuracy until the earlier of (Ai) ten the expiration of a thirty (1030) Business Days following day period commencing upon delivery of written notice from Company to Parent of such breach to Parent or inaccuracy and (Bii) the Parent ceasing to exercise commercially reasonable efforts to cure such breach (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(d7.1(e) if the Company it shall have materially breached this Agreement or if such breach by Parent or inaccuracy in Parent's representations and warranties is then in material breach of any of its covenants or agreements contained in this Agreementcured prior to such termination becoming effective pursuant hereto);
(ef) 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 been inaccurate when made or 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 curable, then this Agreement shall not have been cured prior terminate pursuant to this Section 7.1(f) with respect to a particular breach or inaccuracy until the earlier of (Ai) ten the expiration of a thirty (1030) Business Days following day period commencing upon delivery of written notice from Parent to Company of such breach to the Company or inaccuracy and (Bii) the Parent Termination Date; provided Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(e7.1(f) if it shall have materially breached this Agreement or if such breach by Company or inaccuracy in Company's representations and warranties is cured prior to such termination becoming effective pursuant hereto);
(g) by Parent if a Triggering Event (as defined below) shall have occurred. For the purposes of this Agreement, a "Triggering Event" shall be deemed to have occurred if: (i) the Board of Directors of Company or Merger Sub is then any committee thereof shall for any reason have withheld, withdrawn or refrained from making or shall have modified, amended or changed in material breach a manner adverse to Parent its recommendation in favor of any the adoption of its covenants or agreements contained in this Agreement; or
(fii) by Company shall have failed to include in the Proxy Statement/Prospectus the recommendation of the Board of Directors of Company in favor of the adoption of this Agreement; (iii) the Board of Directors of 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 prior to following the date public announcement and time that during the pendency of an Acquisition Proposal; (iv) the Board of Directors of Company Requisite Vote is obtained and a copy or 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 agreement, contract or commitment accepting any Acquisition Proposal; (vi) Company shall have breached any of the written consent provisions of Section 5.4 of this Agreement in any material respect or (vii) a tender or exchange offer relating to not less than 15% of the then outstanding shares of capital stock 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 ten (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 2 contracts
Sources: Agreement and Plan of Reorganization (PMC Sierra Inc), Agreement and Plan of Reorganization (Quantum Effect Devices 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:
(ai) by mutual written consent of Parent UAG and the CompanyStockholder;
(bii) by Parent either UAG or the Company Stockholder if the Closing shall not have taken place on or prior to April 30, 1997, or such later date as shall have been approved by UAG and the Stockholder (provided that the terminating party is not otherwise in material breach of its representations, warranties, covenants or agreements under this Agreement);
(iii) by UAG or the Stockholder if any court of competent jurisdiction in the United States or other Governmental Entity having jurisdiction over the Company United States governmental body shall have issued a final an 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 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 6.8non-appealable;
(civ) by Parent if the Merger shall not have been consummated on UAG 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 Sub if any action of the conditions specified in Article 6 hereof have not been met or waived by UAG and Sub at such party time as such condition is no longer capable of satisfaction (provided UAG and Sub are not otherwise in material breach of their or any of its Subsidiaries representations, warranties, covenants or the failure of such party or any of its Subsidiaries to perform any of its obligations agreements 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);
(dv) by the Stockholder if any of the conditions specified in Article 7 hereof have not been met or waived by the Stockholder at such time as such condition is no longer capable of satisfaction (provided that neither the Stockholder nor the Company is otherwise in material breach of their or its representations, warranties covenants or agreements under this Agreement); or
(vi) by either UAG or the Stockholder if there shall have has been a material breach on the part of the other 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 this Agreement, which breach 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) within ten (10) Business Days following receipt by the breaching party of written notice of such breach to Parent and (B) breach. If UAG or the Company Termination Date; provided that the Company Stockholder 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 caseprovisions hereof, such breach is not curable or termination shall not have been cured prior be effected by notice to the earlier of (A) ten (10) Business Days following written notice of such breach to other party specifying the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement provision 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 Parentmade.
Appears in 2 contracts
Sources: Stock Purchase Agreement (United Auto Group Inc), Stock Purchase Agreement (United Auto Group 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 Stockholders:Closing,
(a) by mutual written consent agreement of Parent and the Company;Parties,
(b) by Parent either the Purchaser or the Company Company:
(i) if any court Governmental Authority of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have enacted, issued a final or entered any restraining order, decree injunction or ruling similar order or taken any other final action restraining, enjoining legal restraint or prohibition which remains in effect that enjoins or otherwise prohibiting prohibits the Merger consummation of the Proposed Transactions, including, without limitation, the sale and issuance of the Purchase Shares, and such order, decreeinjunction, ruling legal restraint or other action is or prohibition shall have become final and nonappealablenon-appealable; providedor
(ii) if the Closing shall not have occurred by the Long Stop Date, however, provided that the right party seeking to terminate this Agreement pursuant to this Section 8.1(b6.2(b)(ii) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have been the primary cause of the failure of the Closing to occur on or before the Long Stop Date; provided, further, that if (i) the condition regarding receipt of CFIUS Approval set forth in Section 1.4(a)(vi) shall be available the only condition of Section 1.4 (other than conditions that by their nature are to be satisfied at the party seeking to terminate if such party Closing or any of its Subsidiaries on the Closing Date) that has failed to take such actions with respect thereto as are required to comply with Section 6.8not been satisfied or waived by the Long Stop Date, and (ii) CFIUS has not by the Long Stop Date informed the Parties that there is a substantial possibility that the CFIUS Approval will not be granted, then the Long Stop Date shall automatically be extended by thirty (30) days;
(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;Purchaser:
(di) by the Company if there shall have been a material breach of any representation, warranty, representation or warranty or failure to perform in any material respect any covenant or agreement on of the part of Parent or Merger Sub contained Company set forth in this Agreement shall have occurred and such that breach or failure to perform would cause any condition of the conditions set forth in subsection (aSection 1.4(a)(ii) or (bSection 1.4(a)(iii) of Section 7.3 would not to be satisfied, and such breach or failure to perform either cannot be satisfied andcured or, in either such caseif curable, such breach is has not curable or shall not have been cured prior to the earlier of (A) ten the thirtieth (1030th) Business Days calendar day following receipt by the Company of written notice of such breach or failure to Parent perform from the Purchaser and (B) the Company Termination calendar day immediately prior to the Long Stop Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(dor
(ii) if terminated in accordance with the Company is then terms set forth in Section 4.8;
(d) by the Company:
(i) if a material breach of any of its covenants representation or agreements contained warranty or failure to perform in this Agreement;
(e) by Parent if there shall have been a breach of any representation, warranty, material respect any covenant or agreement on the part of the Company contained Purchaser set forth in this Agreement shall have occurred and such that breach or failure to perform would cause any condition of the conditions set forth in subsection (aSection 1.4(b)(ii) and Section 1.4(b)(iii) not to be satisfied, and such breach or (b) of Section 7.2 would failure to perform either cannot be satisfied and, in either such case, such breach is cured or has not curable or shall not have been cured prior to the earlier of (A) ten the thirtieth (1030th) Business Days calendar day following receipt by the Purchaser of written notice of such breach or failure to perform from the Company and (B) the Parent Termination calendar day immediately prior to the Long Stop Date; or
(ii) if (A) all of the conditions set forth in Section 1.4(b) have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing), (B) the Purchaser fails to consummate the Closing within three (3) Business Days following the date the Closing should have occurred pursuant to Section 1.3, (C) the Company provided written notice to the Purchaser that Parent it was ready and willing to consummate the Closing during such period and (D) the Purchaser fails to consummate the Closing within three (3) Business Days after delivery of the notice described in the immediately preceding clause (C); provided however that during such three (3) Business Day period referenced in clause (B), neither Party shall not have the right be entitled to terminate this Agreement pursuant to this Section 8.1(e6.2(b)(ii).
(iii) if Parent or Merger Sub is then terminated in material breach of any of its covenants or agreements contained accordance with the terms set forth 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 ParentSection 4.8.
Appears in 2 contracts
Sources: Share Purchase Agreement (Camtek LTD), Share Purchase Agreement (Camtek LTD)
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 TimeAcceptance Time by action taken or authorized by the Board of the Company or the Supervisory Board of Parent, notwithstanding any requisite adoption thereof of this Agreement and the Transactions by the Stockholdersstockholders of the Company:
(a) by By mutual written consent of Parent each of Parent, Purchaser and the Company duly authorized by the Boards of Directors or the Supervisory Board, as the case may be, of Parent, Purchaser and the Company;; or
(b) by Parent By any of Parent, Purchaser or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over (i) the Company Offer shall have issued a final order, decree expired or ruling been terminated in accordance with the terms hereof without Purchaser (or taken Parent on Purchaser’s behalf) having accepted for payment 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 Shares 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 Offer on or before September March 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 Initial Termination Date”); provided, however, that in the event that the condition set forth in clause (ii) of the first paragraph of Annex A shall not have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until May 15, 2008 (the “Extended Termination Date”); and provided, further, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.01(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, or resulted in, the failure of the Effective Time to occur on or before such date; or (ii) any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling which is then in effect and has the Parent Termination Date effect of making consummation of the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger, which injunction, order, decree or ruling is final and nonappealable; or
(c) By Parent, if
(i) in the event (A) of a breach of any covenant or agreement on the part of the Company Termination Dateset forth in this Agreement, as applicable;or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, such that the condition to the Offer set forth in clauses (e) or (f) of Annex A, respectively, would not be satisfied and such breach or inaccuracy is not cured by the Company within 45 calendar days following receipt of written notice from Parent of such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.01(c)(i) if such breach or inaccuracy by the Company is cured within such period); or
(ii) prior to the Acceptance Time, the Board or any committee thereof shall have approved or recommended a Change of Recommendation or resolved to do so; or
(iii) prior to the Acceptance Time, the condition to the Offer set forth in clause (d) of Annex A would not be satisfied and the failure of such condition to be satisfied is not cured by the Company within 45 calendar days following receipt of written notice from Parent of the failure of such condition to be satisfied (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.01(c)(iii) if the Company cures the failure of such condition within such period); or
(d) by By the Company if there shall have been Company, if
(i) in the event (A) of a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained Purchaser set forth in this Agreement, or (B) that any representation or warranty of Parent or Purchaser set forth in this Agreement such shall have been inaccurate when made or shall have become inaccurate, but only to the extent 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 or inaccuracy (i) would prevent or materially delay the ability of Parent or Purchaser to consummate the Transactions and (ii) is not curable cured by Parent or shall not have been cured prior to Purchaser, as the earlier case may be, within 45 calendar days following receipt of (A) ten (10) Business Days following written notice from the Company of such breach to Parent and or inaccuracy (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(d9.01(d)(i) if the Company is then in material such breach of any of its covenants or agreements contained in this Agreement;
(e) inaccuracy 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 Purchaser is cured within 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 Agreementperiod); or
(fii) by Parent at any time prior it makes a Change of Recommendation in order to the date and time enter into an agreement for a Superior Proposal; provided that the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentit has theretofore complied with Section 7.05(c).
Appears in 2 contracts
Sources: Merger Agreement (Genesis Microchip Inc /De), Merger Agreement (Genesis Microchip 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 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 recommendation of the Independent Committee); or
(b) by Parent or either of the Company or Parent:
(i) if the Merger shall not have been consummated on or before the date falling six months from the date of this Agreement (the “Termination Date”); provided, however, 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 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 of any of its obligations under this Agreement;
(ii) if any court of competent jurisdiction or other Governmental Entity Injunction having jurisdiction over the Company effect set forth in Section 8.1(b) shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger be in effect 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(b9.1(b)(ii) shall not be available to a party if the party seeking issuance of such final, non-appealable Injunction was primarily due to terminate if the breach or failure of such party or to perform in any material respect of 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;
(iii) if the Requisite Company Vote shall not have been obtained at the Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof; or
(c) by Parent Parent,
(i) (A) if the Merger representations and warranties of the Company shall not be true and correct or the Company shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement (except the covenants and agreements in Section 7.2), which failure to be true and correct, breach or failure to perform (1) would give rise to the failure of a condition set forth in Section 8.2 and (2) 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 (the “Parent Termination Date”), or cured within 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 9.1(c)(i) and the basis for such termination (or, if earlier, the Merger Termination Date); or (B) the Company shall have breached in any material respect its obligations under Section 7.2, which breach (i) would give rise to the failure of a condition set forth in Section 8.2 and (ii) cannot be cured by the Company by the Termination Date or if capable of being cured, shall not have been consummated on cured (x) within 10 business days following receipt of written notice from the Parent of such breach or before September 30, 2008 (y) any shorter period of time that remains between the “Company date the Parent provides written notice of such breach and the Termination Date”); provided, however, that that, Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(c9.1(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 8.3 not being satisfied; or
(ii) if: (A) the board of directors of the Company shall have made a Change of Recommendation in a manner adverse to Parent, (B) the Company approves or recommends any Acquisition Proposal other than the Merger, or (C) the Company or the board of directors of the Company, acting upon the recommendation of the Independent Committee, publicly announces its intention to do any of the foregoing or (D) the Company fails to hold the Shareholders Meeting within ten business days prior to the Termination Date due to a willful or intentional breach by the Company of Section 7.4; provided that the right to terminate this Agreement under this Section 9.1(c)(ii)(D) shall not be available to the party seeking to terminate if Parent or Merger Sub has breached in 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 material respect its obligations under this Agreement required to be performed at in any manner that causes, directly or prior to the Effective Time has been the cause of, or resulted inindirectly, the failure of the Effective Time Company to occur on or before hold the Parent Termination Date or the Company Termination Date, as applicable;Shareholders’ Meeting by such date; 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 not be true and correct 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 Section 8.3 and (aB) or (b) of Section 7.3 would 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 within 30 business days following receipt by the earlier Parent or Merger Sub of (A) ten (10) Business Days following 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 9.1(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(d9.1(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 8.2 not being satisfied;
(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 receipt of (A) ten (10) Business Days following written notice of such breach the Requisite Company Vote, in order to the Company and (B) the Parent Termination Dateenter into an Alternative Acquisition Agreement relating to a Superior Proposal; provided that Parent shall not have the right to terminate this Agreement pursuant to this Company has complied in all material respects with the requirements of Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement7.2; or
(fiii) if (A) all of the conditions to closing contained in Section 8.1 and Section 8.2 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing), (B) Company has delivered to Parent at any time prior an irrevocable commitment in writing that it is ready, willing and able to consummate the Closing, and (C) Parent and Merger Sub fail to complete the Closing within 10 business days following the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered Closing should have occurred pursuant to ParentSection 2.2.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (China GrenTech CORP LTD), Merger Agreement (China GrenTech CORP LTD)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby by this Agreement 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 and either Pubco or the Company, if the Closing shall not have occurred by December 22, 2021 (the “Termination Date”) by giving written notice of such termination to the other party; provided, further, that the right to terminate this Agreement under this Section 9.01(a) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement shall have been the primary cause of the failure of the Closing to occur on or prior to such date;
(b) by Parent either Pubco or the Company if Company, in the event that 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 or taken any other final action restraining, enjoining or otherwise prohibiting Governmental Order that permanently enjoins the consummation of the Merger and such order, decree, ruling or other action is or Governmental Order shall have become final and nonappealablenon-appealable; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.01(b) shall not be available to any party whose action or failure to fulfill any obligation under this Agreement has been the party seeking to terminate if primary cause of the issuance of such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8Governmental Order;
(c) by Parent either Pubco or the Company if the Merger Pubco Stockholder Approval shall not have been consummated on or before September 15, 2008 obtained at the Special Meeting (the “Parent Termination Date”following any adjournments and postponements thereof required hereunder), 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 (at any time prior to the time the Pubco Stockholder Approval is obtained) if a Pubco Triggering Event shall have occurred;
(e) by the Company, if there shall have has been a breach of any representation, warranty, covenant or other agreement on made by Pubco or its Subsidiaries, or any such representation and warranty shall have become untrue or inaccurate after the part date of Parent this Agreement, in each case which breach, untruth or Merger Sub contained inaccuracy (i) would reasonably be expected to result in this Agreement such that any condition the conditions set forth in subsection Section 8.03(a) not being satisfied as of the Closing Date (aa “Terminating Pubco Breach”), and (ii) 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 within thirty (30) days after written notice from the Company of such Terminating Pubco Breach is received by the Company (such notice to describe such Terminating Pubco Breach in reasonable detail), or which breach, untruth or inaccuracy, by its nature, cannot be 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 provided, that neither the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company nor Merger Sub is then in material breach of any of its their representations, warranties, covenants or agreements contained in other obligations under this Agreement, which breach would give rise to a failure of a condition set forth in Section 8.02(a);
(ef) by Parent Pubco, if there shall have has been a breach of any representation, warranty, covenant or other agreement on the part of made by the Company contained or its Subsidiaries in this Agreement Agreement, or any such that any condition representation and warranty shall have become untrue or inaccurate after the date of this Agreement, in each case which breach, untruth or inaccuracy (i) would reasonably be expected to result in the conditions set forth in subsection Section 8.02(a) not being satisfied as of the Closing Date (aa “Terminating Company Breach”), and (ii) 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 within thirty (30) days after written notice from Pubco of such Terminating Company Breach is received by the Company (such notice to describe such Terminating Company Breach in reasonable detail), or which breach, untruth or inaccuracy, by its nature, cannot be 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 provided, that Parent shall Pubco is 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, covenants or agreements contained in other obligations under this Agreement; or, which breach would give rise to a failure of a condition set forth in Section 8.03(a);
(fg) by Parent Pubco (at any time prior to the date and time the Pubco Stockholder Approval is obtained), if (i) Pubco has received an Acquisition Proposal that the Pubco Board has determined to be a Superior Offer, (ii) such Superior Offer did not result from a material breach by Pubco of Section 7.02(a), (iii) Pubco concurrently terminates this Agreement and enters into a definitive agreement with respect to such Superior Offer and (iv) within two (2) Business Days of such termination, Pubco pays to the Company Requisite Vote is obtained and a copy the amount contemplated by Section 9.03; or
(h) by the mutual written consent of the written consent is delivered to Parentparties hereto.
Appears in 2 contracts
Sources: Merger Agreement (Greenidge Generation Holdings Inc.), Merger Agreement (Support.com, 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:Stockholder Approval (provided, that any termination pursuant to Section 8.1(f) may only occur prior to obtaining the Stockholder Approval):
(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 Effective Time shall not have been consummated occurred on or before September 15October 31, 2008 2013 (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(c8.1(b)(i) shall not be available to the any party seeking 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 fulfill 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;
(dii) by if any Governmental Entity issues an order, decree or ruling or takes any other action permanently enjoining, restraining or otherwise prohibiting the Company if there consummation of the Merger and such order, decree, ruling or other action shall have been become final and nonappealable and would result in a breach of any representation, warranty, covenant or agreement on failure to satisfy the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (bSection 7.1(b) of Section 7.3 would not be satisfied andthis Agreement, 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(d8.1(b)(ii) if the Company is then in material breach of shall not be available to any party whose failure to fulfill any of its covenants obligations under this Agreement (including such party’s obligations set forth in Section 6.5) has been the cause of, or agreements contained in this Agreementresulted in, such action;
(eiii) by Parent if there shall have been if, upon a breach of vote at a duly held meeting (including any representationadjournment or postponement thereof) to obtain the Stockholder Approval in accordance with this Agreement, warrantythe Stockholder Approval is not obtained; provided, covenant or agreement on the part of however, that the Company contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.2 would may 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(b)(iii) if the Company has breached in any material respect any of its material obligations under this Agreement and such breach was the cause of, or resulted in, the failure to obtain the Stockholder Approval at the Stockholder Meeting or at any adjournment or postponement thereof; or
(c) by Parent, if the Company breaches or fails to perform any of its representations, warranties or covenants contained in this Agreement (other than with respect to Section 6.3), in any case, as a result of which a condition set forth in Section 7.2(a) or 7.2(b) would not have been satisfied prior to or as of the Termination Date and, in any such case, such breach (if curable) has not been cured within 30 days after notice to the Company (provided that Parent or Merger Sub is not then in material breach of any of its covenants representation, warranty or agreements covenant contained in this Agreement);
(d) by Parent if (i) the Board of Directors of the Company (or any committee thereof) fails to include the Company Board Recommendation in the Proxy Statement or makes a Company Board Recommendation Change or publicly announces or proposes an intent to do so, or (ii) the Company shall have breached in any material respect any of its material obligations under Section 6.1 or Section 6.3;
(e) by the Company, if Parent or Sub breaches or fails to perform any of its representations, warranties or covenants contained in this Agreement, in any case, as a result of which a condition set forth in Section 7.3(a) or 7.3(b) would not have been satisfied prior to or as of the Termination Date and, in any such case, such breach (if curable) has not been cured within 30 days after notice to Parent (provided that the Company is not then in material breach of any representation, warranty or covenant contained in this Agreement); or
(f) by Parent at any time the Company prior to obtaining the date Stockholder Approval, in order to concurrently enter into an agreement for an Acquisition Transaction that is a Superior Proposal, and time the Company, concurrently with, and as a condition to, any termination pursuant to this Section 8.1(f), pays Parent the Termination Amount as set forth in Section 6.7(b); provided, however, that the Company Requisite Vote is obtained and a copy may not terminate this Agreement pursuant to this Section 8.1(f) if the Company has breached in any material respect or failed to perform in any material respect any of the written consent is delivered to Parentits material obligations under Sections 6.1 or 6.3.
Appears in 2 contracts
Sources: Merger Agreement (NetSpend Holdings, Inc.), Merger Agreement (Total System Services 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 Stockholderswhether before or after stockholder approval thereof:
(a) Subject to SECTION 2.3(c), by the mutual written consent of Parent and the Company;
(b) by Parent or By either of the Company or Parent:
(i) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Offer shall have issued a final orderexpired without any Shares being accepted for payment by the Purchaser pursuant to the Offer by the Termination Date; PROVIDED, 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, howeverHOWEVER, that the right to terminate this Agreement pursuant to under this Section 8.1(bSECTION 8.1(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 has been the cause of, or resulted in, the failure of Purchaser to accept for payment the Effective Time Shares pursuant to occur the Offer on or before prior to such date; or
(ii) if any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the Parent Termination Date parties hereto shall use their reasonable efforts to lift), which permanently restrains, enjoins or otherwise prohibits the acceptance for payment of, or payment for, Shares pursuant to the Offer or the Merger and such order, decree, ruling or other action shall have become final and non-appealable.
(c) By the Company:
(i) if Parent or Purchaser shall have failed to commence the Offer within fifteen (15) Business Days following the date of the initial public announcement of the Offer; PROVIDED, that the Company Termination Datemay not terminate this Agreement pursuant to this SECTION 8.1(c)(i) if the Company is at such time in material breach of its obligations under this Agreement;
(ii) in connection with entering into a definitive agreement as permitted by SECTION 6.4(b), PROVIDED, that the Company has complied with all provisions thereof, including the notice provisions therein, and that the Company makes simultaneous payment to Parent of funds as required by SECTION 9.1(b);
(iii) if Parent or Purchaser shall have breached in any material respect any of their respective representations, warranties, covenants or other agreements contained in this Agreement, which breach is incapable of being cured or cannot be or has not been cured by Parent or Purchaser within twenty (20) days after the giving of written notice by the Company to Parent or Purchaser, as applicable;.
(d) By Parent (on behalf of itself, STC and Purchaser):
(i) if, due to an occurrence, involving a material breach by the Company if there of its obligations hereunder, Purchaser shall have been failed to commence the Offer within fifteen (15) Business Days following the date of the initial public announcement of the Offer;
(ii) if, prior to the purchase of Shares by Purchaser pursuant to the Offer, the Company's board of directors shall have withdrawn, modified or changed in a breach manner adverse to Parent or Purchaser its approval or recommendation of the Offer, this Agreement or the Merger or shall have recommended the approval or acceptance of an Acquisition Proposal or shall have executed a letter of intent, agreement in principle or definitive agreement relating to an Acquisition Proposal with a Person (other than Parent, Purchaser or their Affiliates); or
(iii) if, prior to the purchase of Shares by Purchaser pursuant to the Offer, the Company shall have breached any representation, warranty, covenant or other agreement on the part of Parent or Merger Sub contained in this Agreement such that any which causes the failure of a condition set forth in subsection paragraph (ad) or (be) of Section 7.3 would not be satisfied and, in either such case, APPENDIX A to this Agreement and such breach is has not curable or shall not have been cured prior to within twenty (20) days after the earlier giving 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 Parentbreach.
Appears in 2 contracts
Sources: Merger Agreement (Convergent Holding Corp), Merger Agreement (Convergent 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 whether before or after approval by the Stockholdersstockholders of the Company:
(a) by mutual written consent duly authorized by the Board of Directors of Parent and the Special Committee on behalf of the Board of Directors of the Company;
(b) by either Parent or the Company if any court Special Committee on behalf 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 Effective Time shall not have been consummated occurred on or before September 30, 2008 1998 (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 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 such date;
(c) by either Parent Termination Date or the Company Termination DateSpecial Committee on behalf of the Company, as applicableif any court of competent jurisdiction in the United States or other governmental agency of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger, and such order, decree, ruling or other action shall have become final and non-appealable;
(d) by the Company Special Committee, on behalf of the Company, at any time, if there shall have been a breach 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 (aSection 9.3(a) or (b) of Section 7.3 would shall not be satisfied and, in either at such case, time and (i) such breach condition is not curable or shall not have been cured incapable of being satisfied prior to the earlier of Termination Date or (Aii) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination DateParent Subsidiaries are not using their best efforts to cure the breach resulting in such condition not being satisfied in as timely a manner as practicable; 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
(e) by Parent Parent, at any time, 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 conditions set forth in subsection (aSection 9.3(a) or (b) of Section 7.2 would shall not be satisfied and, in either at such case, time and (i) such breach condition is not curable or shall not have been cured incapable of being satisfied prior to the earlier of Termination Date or (Aii) ten (10) Business Days following written notice of such breach to the Special Committee or the Company and (B) are not using their best efforts to cure the Parent Termination Date; provided that Parent shall breach resulting in such condition not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then being satisfied 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 as timely a copy of the written consent is delivered to Parentmanner as practicable.
Appears in 2 contracts
Sources: Merger Agreement (Petrofina Delaware Inc), Merger Agreement (Fina Inc)
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, Time (notwithstanding adoption thereof any approval of this Agreement by the Stockholders:Company Shareholders):
(a) by mutual written consent of Parent Buyer and the Company;
(b) by Parent either Buyer or the Company, if there shall be any law or regulation that makes consummation of the Offer or the Merger illegal or otherwise prohibited, or if any Order of a court or other competent Governmental Authority enjoining Buyer or the Company if any court of competent jurisdiction from consummating the Offer or other Governmental Entity having jurisdiction over the Company Merger shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger been entered and such order, decree, ruling or other action is or Order shall have become final and nonappealablea Final Order (as defined below); providedprovided that the Party seeking to terminate shall have used reasonable efforts to resist, howeverresolve or lift, as applicable, such Order subject to the provisions of Section 6.1;
(c) by either Buyer or the Company, if the Acceptance Date shall not have occurred on or before January 5, 2006 (the “Outside Date”); provided 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 to terminate if any action of such party this Agreement whose failure or any of its Subsidiaries or the whose Affiliate’s failure of such party or any of its Subsidiaries to perform any of its obligations material covenant or 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 Offer and the Merger to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(d) by the Company if there if, prior to the Acceptance Date, Buyer shall have been a breach breached in any material respect any of its representations or warranties or failed to perform in any representation, warranty, covenant material respect any of its covenants or agreement on the part of Parent or Merger Sub other agreements contained in this Agreement such that Agreement, which breach or failure to perform (i) is incapable of being cured by Buyer prior to the Outside Date and (ii) renders any condition of the Offer Conditions or any of the conditions in Article VII incapable of being satisfied prior to the Outside Date;
(e) by Buyer, if the Company shall have breached in any material respect any of its representations or warranties or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement, which breach or failure to perform (i) is incapable of being cured by the Company prior to the Outside Date and (ii) renders any Offer Condition or any of the conditions set forth in subsection (a) or (b) Article VII 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 the earlier of Outside Date;
(Af) ten by Buyer, if (10i)(A) Business Days following written notice of such breach the Board shall have withdrawn or changed or modified the Company Board Recommendation in a manner adverse to Parent and Buyer, (B) the Board shall have failed to include in the Schedule 14D-9 the Company Termination Date; provided that Board Recommendation, (C) the Board of Directors of the Company shall not have approved, or determined to recommend to the right to terminate this Agreement pursuant to this Section 8.1(dCompany Shareholders that they approve, an Acquisition Proposal other than the Offer or the Merger or (D) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement;
obligations under Section 6.3(a) (eafter giving effect to Section 6.3(d)) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement and thereafter (ii) on the part next scheduled expiration 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 andOffer, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten the Offer Conditions referred to in clauses (10c) Business Days following written notice and (d) of such breach to the Company Annex A are satisfied, and (B) the Parent Termination DateMinimum Condition is not satisfied as of such scheduled expiration time; provided provided, however, that Parent Buyer shall not have the right be entitled to terminate this Agreement pursuant unless at such scheduled expiration time (x) there has been no Material Adverse Effect on Buyer, (y) Buyer has complied in all material respects with its obligations hereunder to this be complied with prior to the scheduled expiration of the Offer expiration and (z) the conditions set forth in clauses (i), (ii), (iii) and (vi) of Section 8.1(e1(d) if Parent of the Commitment Letter (without giving effect to any amendment and, in the case of clauses (i) and (ii) of Section 1(d) thereof, to the extent such conditions relate to Buyer and its Subsidiaries) are satisfied or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreementwaived by the lenders thereunder; or
(fg) by Parent at the Company, if the Acceptance Date has not occurred prior to any time scheduled Offer expiration date falling on or after October 31, 2005 (each such expiration date, the “Funding Condition Date”) and (i) on the Funding Condition Date all of the Offer Conditions, other than the Financing Condition, are satisfied, but Buyer fails to promptly accept and pay for shares of Company Common Stock validly tendered and not withdrawn or (ii) (A) on or prior to the date and time Funding Condition Date, it shall have been publicly disclosed or widely reported publicly to the effect that the Company Requisite Vote Financing Condition will not, or is obtained not likely to be satisfied by the Funding Condition Date (and a copy Buyer shall not, at least two (2) full Business Days prior to the Funding Condition Date have publicly affirmed (and not changed, modified or revoked such affirmation) that that it expects in good faith that the Financing Condition will be satisfied on the Funding Condition Date), and (B) on the Funding Condition Date all of the written consent is delivered Offer Conditions, other than the Financing Condition and the Minimum Condition, are satisfied but Buyer fails to Parentaccept and pay for shares of Company Common Stock validly tendered and not withdrawn.
Appears in 2 contracts
Sources: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare 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 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 August 3, decree, ruling or other action is or shall have become final and nonappealable2010 (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 in effect that (A) makes consummation of the Merger illegal or otherwise prohibited or (B) enjoins the Company or Parent from consummating the Merger and, in the case of clauses (A) and (B) any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;Applicable Law, including an 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) a Company Adverse Recommendation Change shall not have been consummated on occurred 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 materially breaches its obligations under this Agreement required by reason of a failure 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 call the Company Termination Date, as applicable;Stockholders Meeting in accordance with Section 6.02; or
(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 any would cause the condition set forth in subsection Section 9.02(a) not to be satisfied, and such condition is incapable of being satisfied by the End Date.
(ad) by the Company, if a breach of any representation or (b) warranty or failure to perform any covenant or agreement on the part 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 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, and such condition is incapable of being satisfied by the End Date; provided that Parent shall not have the right . 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: Agreement and Plan of Merger (Pepsiamericas Inc/Il/), Merger Agreement (Pepsico Inc)
Termination. This Agreement may be terminated and the Offer and 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 Company Stockholders:):
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company, if there shall be any law or regulation that makes consummation of the Offer or the Merger illegal or otherwise prohibited, or if any Order of a court or other competent Governmental Authority enjoining Parent or the Company if any court of competent jurisdiction from consummating the Offer or other Governmental Entity having jurisdiction over the Company Merger shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger been entered and such order, decree, ruling or other action is or Order shall have become final and nonappealablea Final Order;
(c) by either Parent or the Company, if the Acceptance Date shall not have occurred on or before February 28, 2003 (the "OUTSIDE DATE"); provided, however, that, if the Offer and the Merger shall not have been consummated by such date solely due to any Required Governmental Approval not having been received, then such date shall be extended to April 30, 2003; provided, further, 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 to terminate if any action of such party this Agreement whose failure or any of its Subsidiaries or the whose Affiliate's failure of such party or any of its Subsidiaries to perform any of its obligations material covenant or 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 Offer and the Merger to occur on or before the Parent Termination Date or the Company Termination Date, as applicablesuch date;
(d) by the Company if there Company, if, prior to the Acceptance Date, Parent shall have been a breach breached in any material respect any of its representations or warranties or failed to perform in any representation, warranty, covenant material respect any of its covenants or agreement on the part of Parent or Merger Sub other agreements contained in this Agreement such that any condition set forth in subsection Agreement, which breach or failure to perform (ai) is incapable of being cured or (bii) if capable of Section 7.3 would not be satisfied andbeing cured, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) the Business Days following written notice of such breach Day prior to Parent and the Outside Date or (B) the date that is 30 days from the date that the Company Termination is notified of such breach;
(e) by the Parent, if, prior to the Acceptance Date, the Company shall have breached in any respect any of its representations or warranties (without regard to any "materiality," "Material Adverse Effect" or similar qualifier contained therein) or failed to perform in any respect any of its covenants or other agreements contained in this Agreement (without regard to any "materiality," "Material Adverse Effect" or similar qualifier contained therein), which breach or failure to perform would render unsatisfied any condition contained in clauses (a) or (b) of Annex A hereof or Section 7.1 of this Agreement; provided that with respect to a failure to perform a covenant that would render unsatisfied Section 7.1 of this Agreement, the Company shall have failed to perform in all material respects such covenant, and which breach or failure (i) is incapable of being cured or (ii) if capable of being cured, is not cured, prior to the earlier of (A) the Business Day prior to the Outside Date or (B) the date that is 30 days from the date that Parent is notified of such breach;
(f) by the Company or Parent, upon written notice to the other party, if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action (which Order or other action the right party seeking to terminate shall have used all reasonable efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 6.1(a) of this Agreement) enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement, and such Order shall have become a Final Order;
(g) by Parent, if (i) the Board of Directors of the Company shall have withdrawn or changed or modified the Company Board Recommendation in a manner adverse to Parent or (ii) the Board of Directors of the Company shall have approved, or determined to recommend to the Company Stockholders that they approve an Acquisition Proposal other than that contemplated by this Agreement; or
(h) by the Company, if, prior to the Acceptance Date, (i) the Board of Directors of the Company has received a Superior Proposal, (ii) the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that such action is consistent with the fiduciary duties of the Board of Directors of the Company to the persons to whom it owes fiduciary duties under Applicable Laws and (iii) the Company has otherwise complied with Section 6.3(d) of this Agreement; provided, however, that the Board of Directors of the Company shall only be able to terminate this Agreement pursuant to this Section 8.1(d8.1(h) if (A) after three Business Days following Parent's receipt of written notice advising Parent that the Board of Directors of 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 representationprepared to do so, warrantyand only if, covenant or agreement on the part of during such three Business Day period, the Company contained and its advisors will have negotiated in good faith with Parent to make such adjustments in the terms and conditions of this Agreement as would enable the parties to proceed with the transactions contemplated herein on 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 adjusted terms and (B) if, concurrent with such termination, the Company refunds the Genesis Payment to Parent Termination Date; provided that Parent shall not have the right pursuant to terminate Section 6.2(d) of this Agreement and pays to Parent the Termination Fee pursuant to this Section 8.1(e8.2(b) 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: Merger Agreement (NCS Healthcare Inc), Merger Agreement (Omnicare Inc)
Termination. This Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Timetime, notwithstanding adoption thereof by the Stockholdersas follows:
(a) by mutual written consent of Parent each of Parent, Acquisition Sub 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 such order, decree, ruling has not been consummated on or other action before the date that is or shall have become final and nonappealablesix (6) months from the date of this Agreement (the “Outside Date”); provided, however, provided that the right to terminate this Agreement pursuant to under this Section 8.1(b) shall not be available to any party if the party seeking failure of the Merger to terminate if be so consummated on or before the Outside Date was primarily due to the failure of such party or 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 either the Company or Parent, if any court or Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting consummation of the Merger Merger, and such Order or other action 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 under this Section 8.1(c) shall not be available to a party if the party seeking to terminate if any action issuance of such party or any of its Subsidiaries or final, non-appealable Order was primarily due to the failure of such party or any party, and in the case of its Subsidiaries Parent including the failure of Acquisition Sub, to perform any of its obligations under this Agreement required to be performed at or prior to Agreement, including 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 applicableobligations set forth in Section 6.2(b);
(d) by either the Company or Parent, if there the Stockholders’ Meeting (including any adjournments or postponements thereof) 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 held and (B) concluded without 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 AgreementStockholder Approval having been obtained;
(e) by Parent Parent, if there the Company shall have been a breach breached or failed to perform any of any representationits representations, warrantywarranties, covenant covenants or agreement on the part of the Company contained in this Agreement such that any condition other agreements set forth in subsection this Agreement, which breach or failure to perform (ai) would result in a failure of conditions set forth in Section 7.2(a) or 7.2(b) and (bii) of Section 7.2 would cannot be satisfied andcured on or before the Outside Date or, in either such caseif curable before the Outside Date, such breach is not curable or shall not have been cured prior to by the earlier Company within thirty (30) 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(e) if Parent or Merger Acquisition Sub is then in material breach of any of its covenants covenants, agreements, representations or agreements warranties contained in this Agreement; orAgreement such that the conditions set forth in Section 7.3(a) or 7.3(b) would not be satisfied;
(f) by Parent Parent, at any time prior to receipt of the date Company Stockholder Approval, if the Company Board shall have effected a Change of Recommendation (whether or not in compliance with Section 6.5);
(g) by Parent, if the Company shall have breached in any material respect any of its obligations under Section 6.5;
(h) by the Company, if Parent or Acquisition Sub shall have breached or failed to perform any of its representations or warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (i) would result in a failure of the conditions set forth in Section 7.3(a) or 7.3(b) and (ii) cannot be cured on or before the Outside Date or, if curable in such time frame, is not cured by Parent within thirty (30) days of receipt by Parent of written notice of such breach or failure; provided that the Company Requisite Vote shall not have the right to terminate this Agreement pursuant to this Section 8.1(h) if the Company is obtained and a copy then in breach of any of its covenants, agreements, representations or warranties contained in this Agreement such that the conditions set forth in Section 7.2(a) or 7.2(b) would not be satisfied;
(i) by the Company, in accordance with Section 6.5(e); or
(j) by the Company, if (i) all of the conditions set forth in Sections 7.1 and 7.2 have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing; provided that such conditions are reasonably capable of being satisfied at the Closing), (ii) the Company has irrevocably confirmed in a written consent is notice delivered to ParentParent after the end of the Marketing Period that the conditions to Closing set forth in Section 7.3 (other than those conditions that by their nature are to be satisfied at the Closing but that are expected to be satisfied at the Closing) have been satisfied or the Company has confirmed by written notice to Parent that it is willing to waive any unsatisfied conditions in Section 7.3 and, in either case, that the Company stands, and will stand, ready, willing and able to consummate the Merger and (iii) Parent and Acquisition Sub fail to consummate the Merger within five (5) Business Days after the delivery of such written notice and the Company stood ready, willing and able to consummate the Merger through the end of such five (5) Business Day period; provided, further, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(j) if the Company is in material breach of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Revlon Inc /De/), Merger Agreement (Elizabeth Arden 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 Stockholders:shareholders of Parent or the stockholders of Company (except as otherwise specified in this Section 9.1):
(a) by mutual written consent of each 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 order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such ordershall not have been consummated on or before March 31, decree, ruling or other action is or shall have become final and nonappealable2022 (the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b9.1(b)(i) shall not be available to the party seeking to terminate any Party 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 Party to comply with any provision of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has shall have been the cause of, or resulted in, the failure of the Effective Time Merger to occur on be consummated by the Outside Date; or
(ii) if any Governmental Authority of competent jurisdiction shall have issued an Order or before taken any other action permanently restraining or otherwise prohibiting the Parent Termination Date Merger, and such Order or other action shall have become final and non-appealable; provided, that the right to terminate this Agreement under this Section 9.1(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 to comply with any provision of this Agreement; or
(iii) if 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 Stockholder Approval shall not have been obtained at the Company Stockholder Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the approval of this Agreement was taken; provided, that the right to terminate this Agreement under this Section 9.1(b)(iii) shall not be available to Company where a failure to obtain the Company Stockholder Approval was primarily caused by any action or failure to act of Company that constitutes a material breach any of its obligations under Section 7.1 or 7.3; or
(iv) if the Parent Shareholder Approval shall not have been obtained at the Parent Shareholder Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the approval of this Agreement was taken; provided, that the right to terminate this Agreement under this Section 9.1(b)(iv) shall not be available to Parent where a failure to obtain the Parent Shareholder Approval was primarily caused by any action or failure to act of Parent that constitutes a material breach of any of its obligations under Section 7.1 or 7.4.
(c) by Parent:
(i) if Company shall have breached, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of any of the conditions set forth in Section 8.1 or 8.2 (a “Company Terminating Breach”) and (B) is not cured or cannot be cured or waived prior to the earlier of (Ai) ten forty-five (1045) days following notice to Company from Parent of such breach or failure and (ii) the date that is three (3) 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 Outside Date; provided provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(c)(i) if a Parent or Merger Sub is then in material breach of any Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its covenants or agreements contained in election to terminate this AgreementAgreement pursuant to this Section 9.1(c)(i); or
(fii) prior to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof (A) shall have effected a Company Adverse Recommendation Change (provided, that Parent’s right to terminate this Agreement pursuant to this Section 9.1(c)(ii)(A) in respect of a Company Adverse Recommendation Change will expire thirty (30) days after the last date upon which Parent receives notice from Company that the Company Board or a committee thereof has made such Company Adverse Recommendation Change), (B) after public announcement by any Person of a Company Acquisition Proposal or an intention (whether or not conditional) made publicly to make a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, (C) fails to include the Company Board Recommendation in the Joint Proxy Statement, (D) approves, adopts, publicly endorses or recommends, or enters into or allows Company or any of Company Subsidiary to enter into a definitive agreement for, any Company Acquisition Proposal (other than a Company Acceptable Confidentiality Agreement), or (E) shall have materially violated (or shall be deemed pursuant to the last sentence of Section 7.3(a) to have violated) any of its obligations under Section 7.3 (other than any immaterial or inadvertent violations thereof not intended to result in a Company Alternative Acquisition Agreement); or
(iii) prior to obtaining the Parent Shareholder Approval, if the Parent Board determines to enter into a Parent Alternative Acquisition Agreement with respect to a Parent Superior Proposal in accordance with Section 7.4(d); provided, however, that this Agreement may not be so terminated unless substantially concurrently with the occurrence of such termination the payment required by Section 9.3(c)(i)(C) is made in full to Company and the Parent Alternative Acquisition Agreement is entered into with respect to such Parent Superior Proposal, and in the event that such Parent Alternative Acquisition Agreement is not substantially concurrently entered into and such payment is not concurrently made, such termination shall be null and void.
(d) by Company:
(i) if Parent at shall have breached, violated or failed to perform any time of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of any of the conditions set forth in Section 8.1 or 8.3 (a “Parent Terminating Breach”) and (B) is not cured or cannot be cured or waived prior to the earlier of (i) forty-five (45) days following notice to Parent from Company of such breach or failure and (ii) the date that is three (3) Business Days prior to the Outside Date; provided, that Company shall not have the right to terminate this Agreement pursuant to this Section 9.1(d)(i) if a Company Terminating Breach shall have occurred and be continuing at the time Company delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(d)(i); or
(ii) prior to obtaining the Parent Shareholder Approval, if Parent or the Parent Board or any committee thereof (A) shall have effected a Parent Adverse Recommendation Change (provided, that Company’s right to terminate this Agreement pursuant to this Section 9.1(d)(ii)(A) in respect of a Parent Adverse Recommendation Change will expire thirty (30) days after the last date upon which Company receives notice from Parent that the Parent Board or a committee thereof has made such Parent Adverse Recommendation Change), (B) after public announcement by any Person of a Parent Acquisition Proposal or an intention (whether or not conditional) made publicly to make a Parent Acquisition Proposal, fails to recommend against such Parent Acquisition Proposal and to publicly reaffirm the Parent Board Recommendation within ten (10) Business Days of being requested to do so by Company, (C) fails to include the Parent Board Recommendation in the Joint Proxy Statement, (D) approves, adopts, publicly endorses or recommends, or enters into or allows Parent or any Parent Subsidiary to enter into a definitive agreement for, any Parent Acquisition Proposal (other than a Parent Acceptable Confidentiality Agreement), or (E) shall have materially violated (or shall be deemed pursuant to the last sentence of Section 7.4(a) to have violated) any of its obligations under Section 7.4 (other than any immaterial or inadvertent violations thereof not intended to result in a Parent Alternative Acquisition Agreement); or
(iii) prior to obtaining the Company Requisite Vote Stockholder Approval, if the Company Board determines to enter into a Company Alternative Acquisition Agreement with respect to a Company Superior Proposal in accordance with Section 7.3(d); provided, however, that this Agreement may not be so terminated unless substantially concurrently with the occurrence of such termination the payment required by Section 9.3(b)(i)(C) is obtained made in full to Parent and a copy of the written consent Company Alternative Acquisition Agreement is delivered entered into with respect to Parentsuch Company Superior Proposal, and in the event that such Company Alternative Acquisition Agreement is not substantially concurrently entered into and such payment is not concurrently made, such termination shall be null and void.
Appears in 2 contracts
Sources: Merger Agreement (Kite Realty Group, L.P.), Merger Agreement (Retail Properties of America, Inc.)
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:
(ai) by mutual written consent of Parent the Company and the CompanyPurchaser;
(bii) by Parent the Company or the Purchaser, if the Closing shall not have been consummated on or before December 31, 2008 (the “Termination Date”), provided, that the right to terminate this Agreement under this paragraph shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the primary cause of the failure of the Closing to occur on or prior to such date;
(iii) by the Purchaser, if there has been a breach of any representation, warranty or covenant made by the Company if any court in this Agreement, such that the conditions in Section 8 are not capable of competent jurisdiction or other Governmental Entity having jurisdiction over being satisfied and which have not been cured by the Company within twenty (20) calendar days after receipt of written notice from the Purchaser of such breach, provided, however, this Agreement may not be terminated pursuant to this Section 10(a)(iii) after the receipt of the Closing Notice, unless the Company shall have received a termination notice from each Investor, pursuant to Section 10(a)(iii) of the applicable Investor Agreement;
(iv) by the Company, if there has been a breach of any representation, warranty or covenant made by the Purchaser in this Agreement, such that the conditions in Section 9 are not capable of being satisfied and which have not been cured by the Purchaser within twenty (20) calendar days after receipt of written notice from the Company requesting such breach to be cured;
(v) by the Company, if the Closing Conditions in Sections 7 and 8 have been satisfied, and Purchaser has failed to make payment as and when required pursuant to Section 2(a) hereof;
(vi) by the Purchaser or by the Company, if any Governmental Authority shall have issued a final an order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the consummation of the Transactions or the transactions contemplated by the Merger Agreement 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;or
(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;
(dvii) by the Company or by the Purchaser, if there the Merger Agreement shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained terminated 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 accordance with 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 Parentterms.
Appears in 2 contracts
Sources: Securities Purchase Agreement (L-1 Identity Solutions, Inc.), Securities Purchase Agreement (L-1 Identity Solutions, 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 Time whether before or after the approval and adoption thereof of this Agreement and the transactions contemplated hereby by the Stockholdersstockholders of the Company or the stockholder of Merger Sub:
(a) by the mutual written consent agreement of Parent and the Company;
(b) by Parent or Merger Sub, in the event the Company fails to deliver the Stockholder Written Consent to Parent on or before January 31, 2016;
(c) by Parent or Merger Sub, in the event the Company materially breaches or fails to perform any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement unless such breach or failure is cured within fifteen (15) days after written notice to the Company by Parent or Merger Sub;
(d) by Company, in the event that either Parent or Merger Sub materially breaches or fails to perform any representation, warranty, covenant or agreement on the part of either Parent or Merger Sub, as applicable, set forth in this Agreement unless such breach or failure is cured within fifteen (15) days after written notice to Parent or Merger Sub, as applicable, from the Company; or
(e) by Parent, Merger Sub or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over (i) the Effective Time shall not have occurred by January 31, 2016, which date may be extended by Parent, Merger Sub and the Company shall have issued a final orderin their joint discretion until March 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 nonappealable2016; provided, however, provided that the right to terminate this Agreement pursuant to under this Section 8.1(b7.01(e) 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 court of competent jurisdiction in the Parent Termination Date United States or the Company Termination Date, as applicable;
(d) by the Company if there other Governmental Entity shall have been a breach of issued an order, decree, ruling or taken any representationother action restraining, warrantyenjoining or otherwise prohibiting the Merger and such order, covenant decree, ruling 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 other action 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 become final 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 Parentnon-appealable.
Appears in 2 contracts
Sources: Merger Agreement (Adgero Biopharmaceuticals Holdings, Inc.), Merger Agreement (Adgero Biopharmaceuticals Holdings, 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 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 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 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 Except as provided in Section 9.2 below, 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 agreement of the Company, Parent and the CompanyMerger Sub;
(b) by Parent Parent, Merger Sub or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over if: (i) the Company shall have issued a final orderEffective Time has not occurred before 5:00 p.m. (Mountain Time) on 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 nonappealable2009; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(bclause 8.1(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 under this Agreement required to be performed at or prior to the Effective Time obligation hereunder has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date or if such party is otherwise in breach of this Agreement or any other condition contemplated hereby; (ii) there shall be a final nonappealable Order of any Governmental Entity in effect preventing consummation of the Merger; or (iii) there shall be any Law or Order enacted, promulgated or issued or deemed applicable to the Merger by any Governmental Entity that would make consummation of the Merger illegal;
(c) by Parent Termination Date and Merger Sub, if there shall be any action taken, or any Law or Order enacted, promulgated or issued or deemed applicable to the Merger, by any Governmental Entity or regulatory authority, that would: (i) prohibit Parent’s or the Merger Sub’s ownership or operation of all or any portion of the business of the Company Termination Date, or (ii) compel Parent or Merger Sub to dispose of or hold separate all or a portion of the Assets and Properties of the Company as applicablea result of the Merger;
(d) by the Company Parent, if there shall have has been a material breach of any representation, warranty, covenant or agreement contained in this 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 the Company and the Company has not be satisfied and, in either such case, cured such breach is not curable or shall not have been cured prior to the earlier of within five (A5) ten (10) Business Days following written business days after notice of such breach is delivered to Parent and (B) the Company Termination DateCompany; provided provided, however, that, no cure period shall be required for a breach that the Company shall by its nature cannot 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 Agreementbe cured;
(e) by Parent the Company if there shall have has been a material breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (a) Parent or (b) of Section 7.2 would Merger Sub and Parent has not be satisfied and, in either such case, cured such breach is not curable or shall not have been cured prior to the earlier of within five (A5) ten (10) Business Days following written business days after notice of such breach is delivered to the Company and (B) the Parent Termination DateParent; provided provided, however, that Parent no cure period shall be required for a breach that by its nature cannot 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; orbe cured;
(f) by Parent at any time prior to or the date and time that Company, if the Company Requisite Vote is obtained and a copy Proposal shall not have been approved by the requisite votes of the Company’s stockholders in accordance with the NRS at the Company Stockholder Meeting or by written consent consent;
(g) by the Company, if the Company has received a Superior Proposal in accordance with Section 5.2(c) and paid the termination fee to Parent in accordance with Section 9.2(b); or
(h) by the Company, if the Parent Closing Stock Price is delivered to Parentless than $3.00 per share.
Appears in 2 contracts
Sources: Merger Agreement (Double Eagle Petroleum Co), Merger Agreement (Petrosearch Energy 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 StockholdersRequisite TCF Vote or the Requisite Huntington Vote:
(a) by mutual written consent of Parent Huntington and the CompanyTCF in a written instrument;
(b) by Parent either Huntington or TCF if any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Merger or the Company if Bank Merger and such denial has become final and nonappealable or any court 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 obligations, 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 Parent either Huntington or TCF if the Merger shall not have been consummated on or before September 15, 2008 the first anniversary of the date of this Agreement (the “Parent Termination Date”), or unless the failure of the Closing to occur by such date shall be 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 to perform or observe the obligations, 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 Huntington or TCF (provided, that the Company terminating party is not then in material breach of any representation, warranty, obligation, covenant or other agreement contained herein) if there shall have been a breach of any representationof the obligations, warranty, covenant 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 TCF, in the case of a termination by Huntington, or Merger Sub contained Huntington, in this Agreement the case of a termination by TCF, 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) or (b) of Section 7.3 would not be satisfied and7.2, in either such casethe case of a termination by Huntington, such breach or Section 7.3, in the case of a termination by TCF, and which is not curable or shall not have been cured prior to by the earlier of (A) ten (10) Business Days the Termination Date and 45 days following written notice to TCF, in the case of a termination by Huntington, or Huntington, in the case of a termination by TCF, or by its nature or timing cannot be cured during 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 Agreementperiod;
(e) by Parent if there shall have been a breach of any representationHuntington, 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 such time as the earlier Requisite TCF Vote is obtained, if TCF or the Board of Directors of TCF (i) withholds, withdraws, modifies or qualifies in a manner adverse to Huntington the TCF Board Recommendation, (ii) fails to make the TCF Board Recommendation in the Joint Proxy Statement, (iii) adopts, approves, recommends or endorses a TCF Acquisition Proposal or publicly announces an intention to adopt, approve, recommend or endorse a TCF Acquisition Proposal, (iv) fails to publicly and without qualification (A) recommend against any TCF Acquisition Proposal or (B) reaffirm the TCF Board Recommendation, in each case within ten (10) Business Days following written notice business days (or such fewer number of such breach days as remains prior to the Company and TCF Meeting) after a TCF Acquisition Proposal is made public or any request by Huntington to do so, or (Bv) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this materially breaches its obligations under Section 8.1(e) if Parent 6.3 or Merger Sub is then in material breach of any of its covenants or agreements contained in this AgreementSection 6.13; or
(f) by Parent at TCF, prior to such time as the Requisite Huntington Vote is obtained, if Huntington or the Board of Directors of Huntington (i) withholds, withdraws, modifies or qualifies in a manner adverse to TCF the Huntington Board Recommendation, (ii) fails to make the Huntington Board Recommendation in the Joint Proxy Statement, (iii) adopts, approves, recommends or endorses a Huntington Acquisition Proposal or publicly announces an intention to adopt, approve, recommend or endorse a Huntington Acquisition Proposal, (iv) fails to publicly and without qualification (A) recommend against any time Huntington Acquisition Proposal or (B) reaffirm the Huntington Board Recommendation, in each case within ten (10) business days (or such fewer number of days as remains prior to the date and time that Huntington Meeting) after a Huntington Acquisition Proposal is made public or any request by TCF to do so or (v) materially breaches its obligations under Section 6.4. The party desiring to terminate this Agreement pursuant to clause (b), (c), (d), (e) or (f) of this Section 8.1 shall give written notice of such termination to the Company Requisite Vote other party in accordance with Section 9.5, specifying the 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 (TCF Financial Corp), Merger Agreement (Huntington Bancshares Inc/Md)
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 each of Parent, Merger Sub and the Company duly authorized by the Boards of Directors of each of Parent, Merger Sub and the Company;
(b) by Parent either Parent, Merger Sub 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 December 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 nonappealable2001; provided, however, 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 the such date;
(c) by either Parent Termination Date or the Company Termination DateCompany, as applicableif there shall be any Order of a Governmental Entity (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger; provided, however, that the provisions of this Section 8.01(c) shall not be available to any party whose failure to fulfill its obligations hereunder shall have been the cause of, or shall have resulted in, such Order;
(d) by Parent if the TSE or the OSC shall have indicated in writing that it has made a final and nonappealable determination that it will not grant a consent, approval or authorization referred to under Section 7.02(d) of this Agreement;
(e) by Parent if (i) the Board withholds, withdraws, modifies or changes the Company Board Approval in a manner adverse to Parent or shall have resolved to do so, (ii) the Board shall have recommended to the stockholders of the Company an Acquisition Proposal or shall have resolved to do so or shall have entered into any letter of intent or similar document or any agreement, contract or commitment accepting any Acquisition Proposal, (iii) the Company shall have failed to include the Company Board Approval in the Company Proxy Statement, (iv) if management of the Company shall fail to certify that the Board has not withdrawn, modified or changed, or resolved to do any of the foregoing with respect to, its recommendation in favor of the approval of the Merger and this Agreement within five business days after Parent requests in good faith, based on its good faith belief that such certification is desired under the circumstances, (v) a tender offer or exchange offer for 30% or more of the outstanding shares of stock of the Company is commenced and, within five business days after such offer is commenced, the Board fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders) or (vi) the Company Stockholders' Meeting is not held within 45 days after the date on which the Registration Statement shall have become effective;
(f) by either Parent or the Company if there this Agreement and the transactions contemplated herein shall fail to receive the requisite vote for approval at the Company Stockholders' Meeting;
(g) by either Parent or the Company if this Agreement and the transactions contemplated herein shall fail to receive the requisite vote for approval at the Parent Shareholders' Meeting;
(h) by Parent upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company shall have been become untrue, in either case such that the conditions set forth in either Section 7.02(a) or (b) would not be satisfied (a "Terminating Company Breach"); provided, however, that, if such Terminating Company Breach is curable by the Company through the exercise of all reasonable efforts and the Company continues to exercise all reasonable efforts, Parent may not terminate this Agreement under this Section 8.01(h) for a period of 30 days from the date on which Parent delivers to the Company written notice setting forth in reasonable detail the circumstances giving rise to such Terminating Company Breach; provided further that if, within such 30 day period, the Company does cure such Terminating Company Breach so that the conditions set forth in either Section 7.02(a) or (b) would no longer be breached thereby, then Parent shall not be entitled to terminate this Agreement pursuant to this Section 8.01(h).
(i) by the 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 either in Section 7.03(a) or (b) of Section 7.3 would not be satisfied and(a "Terminating Parent Breach"); provided, however, that, if such Terminating Parent Breach is curable by Parent through the exercise of all reasonable efforts and Parent continues to exercise all reasonable efforts, Company may not terminate this Agreement under this Section 8.01(i) for a period of 30 days from the date on which the Company delivers to Parent written notice setting forth in reasonable detail the circumstances giving rise to such Terminating Parent Breach; provided further that if, within such 30 day period, Parent does cure such Terminating Company Breach so that the conditions set forth in either such caseSection 7.03(a) or (b) would no longer be breached thereby, 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 then the Company shall not have the right be entitled 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;8.01(i)
(ej) by Parent if there shall have been a breach of any representationthe Company, warranty, covenant or agreement on the part upon approval 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 andBoard, in either such case, such breach is not curable or shall not have been cured if prior to the earlier of (A) ten (10) Business Days following Company Stockholders' Approval, the Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel in order to enter into an agreement with respect to a Superior Proposal, upon five business days' prior written notice to Parent, setting forth in reasonable detail the identity of the person making, and the final terms and conditions of, the Superior Proposal and after duly considering any proposals that may be made by Parent during such breach to the Company and (B) the Parent Termination Datefive business day period; provided provided, however, that Parent shall not have the right to terminate any termination of this Agreement pursuant to this Section 8.1(e8.01(j) if Parent or Merger Sub is then in material breach shall not be effective until the Company has made full payment of any of its covenants or agreements contained in this Agreementall amounts provided under Section 8.05; or
(fk) by Parent at any time prior to the date and time that Parent, if the Company Requisite Vote is obtained and a copy of the written consent is delivered to Parentshall have breached its obligations under Section 6.04.
Appears in 2 contracts
Sources: Merger Agreement (Hub International LTD), Merger Agreement (Kaye Group 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 the receipt of Company Shareholder Approval (unless otherwise specified in this Section 9.1), by action taken or authorized by the StockholdersCompany Board or the Park Parties, as applicable, as follows:
(a) by the mutual written consent of Parent the Park Parties and the Company;
(b) by Parent either of the Company, on the one hand, or the Park Parties, on the other hand:
(i) if the Company Shareholder Approval shall not have been obtained at the Company Shareholder Meeting or at any adjournment or postponement thereof, in each case at which a vote on such approval was taken;
(ii) if any court Governmental Authority of competent jurisdiction, that is within a jurisdiction or other Governmental Entity having jurisdiction over that is material to the Company business and operations of the Company, shall have issued a final an order, decree or ruling or taken any other final action restrainingruling, enjoining which permanently restrains, enjoins or otherwise prohibiting prohibits, restricts 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; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(b9.1(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 Party whose failure to comply with Section 6.8;any provision of this Agreement has been the primary cause of, or resulted in, the failure of the Merger to occur on or before the Outside Date; or
(ciii) by Parent if the consummation of the Merger shall not have been consummated occurred on or before September 1511:59 P.M. (New York time) on October 31, 2008 2019 (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(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 Merger to occur on or before the Parent Termination Date or Outside Date;
(c) by the Park Parties, if the Company Termination breaches or fails to perform any of its representations, warranties, covenants or agreements contained in this Agreement (other than with respect to a breach or violation of Section 7.3, as to which Section 9.1(f)(ii) shall apply), or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, either individually or in the aggregate, 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 condition is incapable of being satisfied by the Outside Date or, if capable of being satisfied by such date, is not satisfied by the earlier of (i) thirty (30) days after such notice is given or (ii) two (2) Business Days prior to the Outside Date; provided, however, that neither Parent nor Park shall have the right to terminate this Agreement pursuant to this Section 9.1(c) if any of the Park Parties 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 Company, if there shall have been a breach any of the Park 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 or if any representation or warranty of any of the Park Parties shall have become untrue, which breach or failure to perform or to be true, 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) and such condition is incapable of Section 7.3 would not be being satisfied andby the Outside Date or, in either if capable of being satisfied by such casedate, such breach is not curable or shall not have been cured prior to satisfied by the earlier of (Ai) ten thirty (1030) days after such notice is given or (ii) two (2) Business Days following written notice of such breach prior to Parent and (B) the Company Termination Outside 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 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, at any representation, warranty, covenant or agreement on time prior to the part receipt of the Company contained Shareholder Approval, in order to concurrently enter into an Acquisition Agreement with respect to a Superior Proposal in compliance with Section 7.3(b)(iv) that did not result from a breach or violation of Section 7.3; 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 the Park Parties prior to or concurrently with the earlier of (A) ten (10) Business Days following written notice occurrence of such breach termination and entry into such Acquisition Agreement with respect 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 Agreementsuch Superior Proposal; or
(f) by Parent the Park Parties, (i) if, at any time prior to the date and time that receipt of the Company Requisite Vote is obtained and Shareholder Approval, the Company Board shall make a copy Change in Company Recommendation or (ii) if the Company shall have otherwise breached or violated any of the written consent is delivered its obligations under Section 7.3 (including, without limitation, Section 7.3(b)(iii)(G)) other than any immaterial or inadvertent breaches or violations thereof not intended to Parentresult in an Acquisition Proposal or Acquisition Inquiry.
Appears in 2 contracts
Sources: Merger Agreement (Chesapeake Lodging Trust), Merger Agreement (Park Hotels & Resorts Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Change of Control Time, notwithstanding adoption thereof by the Stockholders:
(a) by mutual written consent of Parent agreement in writing executed by the Offeror and the Company;
(b) by Parent the Company, if:
(i) the Offeror is in material default of any covenant or obligation under this Agreement (without giving effect to, applying or taking into consideration any materiality or Material Adverse Effect qualification already contained within such covenant or obligation); or
(ii) any representation or warranty made by the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Offeror under this Agreement shall have issued a final order, decree been at the date hereof untrue or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is incorrect or shall have become final untrue or incorrect in any material respect at any time prior to the Expiry Time (without giving effect to, applying or taking into consideration any materiality or Material Adverse Effect qualification already contained within such representation or warranty), and nonappealablesuch default or inaccuracy in clauses (i) or (ii) is reasonably likely to prevent consummation of the Offer and is not curable, or if curable, is not cured by the earlier of the date which is ten business days from the date of written notice of such breach and the Expiry Time;
(c) by the Offeror, if:
(i) the Company is in material default of any covenant or obligation in Section 3.3;
(ii) the Company is in material default of any other covenant or obligation under this Agreement (without giving effect to, applying or taking into consideration any materiality or Material Adverse Effect qualification already contained within such covenant or obligation); providedor
(iii) any representation or warranty made by the Company under this Agreement shall have been at the date hereof untrue or incorrect or shall have become untrue or incorrect in any material respect at any time prior to the Expiry Time (without giving effect to, howeverapplying or taking into consideration any materiality or Material Adverse Effect qualification already contained within such representation or warranty), and such default or inaccuracy in clauses (ii) or (iii) is not curable or, if curable, is not cured by the earlier of the date which is ten business days from the date of written notice of such breach and the Expiry Time;
(d) by either party after the 90th day after the date the Offer is mailed to the Shareholders by written notice to the other party if the Offeror has not purchased any Shares pursuant to the Offer, provided that the right to terminate this Agreement pursuant to this Section 8.1(b6.1(d) shall not be available to the party seeking to terminate if such party Offeror 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, as a result of an event that has triggered the right of the other party to terminate this Agreement pursuant to Section 6.1(b) or Section 6.1(c), respectively, provided, however, that if the taking up and payment by the Offeror for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver, consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Section 8.1(c) Agreement 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) terminated 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 Offeror pursuant to this Agreement such that any condition set forth in subsection (aSection 6.1(d) 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 until the earlier of (Ai) ten (10) Business Days following written notice of such breach the 120th day after the date the Offer is mailed to Parent the Shareholders and (Bii) the Company Termination Datefifth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; and provided further, however, that the Company this Agreement shall not have be terminated by the right to terminate this Agreement Offeror pursuant to this Section 8.1(d6.1(d) if all of the Company is then in material breach conditions of any of its covenants the Offer have been satisfied or agreements contained in this Agreementwaived;
(e) by Parent the Offeror if there shall have been a breach of any representation, warranty, covenant or agreement on the part condition of the Company contained in this Agreement such that any condition Offer set forth in subsection Schedule “B” has not been satisfied or waived at the Expiry Time (aother than as a result of the Offeror’s default hereunder) and the Offeror has not elected to waive such condition 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 extend 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; orOffer;
(f) by Parent at the Offeror upon the occurrence of a Non-Completion Event specified in Section 4.1(a);
(g) by the Company pursuant to Section 4.5(c);
(h) by the Company on the day following the Latest Mailing Date if the Offeror has not mailed the Offer (other than a failure to mail as a result of a condition in Section 1.1(e) not being satisfied);
(i) by the Company if:
(i) the terms or conditions of the Offer are amended so as to conflict in any time material respect with the provisions of this Agreement, including Section 1.1(c); or
(ii) the Offer having expired and all of the conditions thereto having been satisfied or waived, the Offeror has not purchased or taken up and paid for the Shares deposited and not withdrawn under the Offer as required under the terms of the Offer or Applicable Laws; or
(j) by the Offeror if the conditions in Section 1.1(e) are not satisfied or waived on or prior to the date and time that the Company Requisite Vote is obtained and Latest Mailing Date other than as a copy result of the written consent is delivered to ParentOfferor’s default hereunder.
Appears in 2 contracts
Sources: Support Agreement (China Minmetals Non-Ferrous Metals Co.Ltd.), Support Agreement (China Minmetals Non-Ferrous Metals Co.Ltd.)
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 whether before or after approval thereof by shareholders of the StockholdersCompany, as follows:
(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 September 30, 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 nonappealable1998; provided, however, 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 the September 30, 1998;
(c) by either Parent Termination Date or the Company Termination Dateif any Governmental Entity shall have issued an order, as applicabledecree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Merger and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the party seeking to terminate this Agreement under this Section 8.01(c) shall have used its commercially reasonable efforts to remove such injunction, order or decree;
(d) by Parent in the event of 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 such that any which (A) would give rise to the failure of a 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 7.02 and (B) cannot be or has not been cured within 20 days after the Company Termination Date; provided that giving by Parent of written notice to 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 AgreementCompany;
(e) by Parent if there shall have been the Company in the event of a breach by Parent or Merger Sub of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such that any which (A) would give rise to the failure of a condition set forth in subsection (a) Section 7.03 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) cannot be or has not been cured within 20 days after the Parent Termination Date; provided that Parent shall not have giving by the right Company of written notice 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 AgreementSub, as applicable; or
(f) by Parent at any time prior to the date and time that or the Company Requisite Vote is obtained and a copy if the shareholders of the written consent is delivered to ParentCompany do not approve this Agreement at the Company Shareholders' Meeting or any adjournment or postponement thereof.
Appears in 2 contracts
Sources: Merger Agreement (Consol Inc), Merger Agreement (Rochester & Pittsburgh Coal 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 whether before or after the StockholdersCompany Stockholder Approval or the Parent Shareholder Approval, as follows:
(a) by mutual written consent of Parent and the Company;; or
(b) by either Parent or the Company if if:
(i) the Effective Time shall not have occurred on or before March 23, 2009 (the “Termination Date”); provided, that the right to terminate this Agreement under this Section 9.01(b)(i) shall not be available to any party whose intentional failure to fulfill any obligation of this Agreement or other intentional breach of this Agreement has resulted in the failure of any condition to the Merger not to be satisfied prior to such date; or
(ii) any court of competent jurisdiction or other any Governmental Entity having jurisdiction over the Company Authority shall have issued a final order, decree or ruling an Order or taken any other final action restrainingpermanently restricting, enjoining enjoining, restraining or otherwise prohibiting consummation of the Merger and such order, decree, ruling Order or other action is or shall have become final and nonappealable; non-appealable provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b9.01(b)(ii) shall not be available to the any party seeking who has not used its reasonable best efforts to terminate if cause such party order to be lifted or any of its Subsidiaries has failed to take otherwise taken such actions with respect thereto action as are is required to comply with Section 6.8;7.10; or
(iii) (A) the Company Stockholder Approval shall not be obtained at the Company Stockholder Meeting, or (B) the Parent Shareholder Approval shall not be obtained at the Parent Shareholder Meeting; or
(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;Parent:
(di) 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 set forth in this Agreement such that any condition the conditions set forth in subsection (aSection 8.02(a) or (band Section 8.02(b) of Section 7.2 would not be satisfied and, in either such casesatisfied, such breach is cannot curable be cured or shall has not have been cured within 30 days of the receipt by the Company of notice thereof, and such breach has not been waived by Parent pursuant to the provisions hereof; or
(ii) prior to the earlier Company Stockholder Meeting, if the Company Board makes a Change in Company Recommendation; or
(iii) if the Company shall have failed to include in the Joint Proxy Statement the recommendation of (A) ten (10) Business Days following written notice of such breach the Company Board to the stockholders of the Company and (B) in favor of 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 adoption of any of its covenants or agreements contained in this Agreement; or
(fd) by the Company:
(i) upon a breach of any representation, warranty, covenant or agreement on the part of Parent at any time and Merger Sub set forth in this Agreement such that the conditions set forth in Section 8.03(a) and Section 8.03(b) would not be satisfied, such breach cannot be cured or has not been cured within 30 days of the receipt by Parent of notice thereof, and such breach has not been waived by the Company pursuant to the provisions hereof; or
(ii) pursuant to Section 7.05(d); or
(iii) prior to the date and time that Parent Shareholder Meeting, if the Company Requisite Vote is obtained and Parent Board makes a copy Change in Parent Recommendation; or
(iv) if Parent shall have failed to include in the Joint Proxy Statement the recommendation of the written consent is delivered Parent Board to Parentthe shareholders of Parent of the Parent Share Issuance.
Appears in 2 contracts
Sources: Merger Agreement (Bunge LTD), Merger Agreement (Corn Products International Inc)
Termination. This Agreement may be terminated and the Merger other transactions contemplated hereby by this Agreement may be abandoned at any time prior to the Effective TimeClosing Date, notwithstanding any requisite approval and adoption thereof of this Agreement and the transactions contemplated by the Stockholdersthis Agreement, pursuant to written notice of termination, as follows:
(a) by mutual written consent of Parent the Company and each of the CompanyInvestors;
(b) by Parent or either the Company or each of the Investors if any court of competent jurisdiction the Closing shall not have occurred on or other Governmental Entity having jurisdiction over the Company shall have issued a final orderbefore January 31, decree or ruling or taken any other final action restraining2007, 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 under this Section 8.1(b) shall not be available to any party whose breach has caused the party seeking failure of the Closing to terminate if occur on or before 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 not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by either 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 the Investors if there shall be any restraining order, injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the failure of such party Closing 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 applicableother transactions contemplated hereby which is final and nonappealable;
(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 the Investors 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, such that the conditions set forth in Section 5.1(a) or (b) of Section 7.2 would not be satisfied and(“Terminating Company Breach”), in either provided, 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 by the Company through the exercise of its reasonable best efforts and for as long as the Company continues to exercise such efforts, but not beyond the date specified in paragraph (Bb) above, the Parent Termination Date; provided that Parent shall Investors may not have the right to terminate this Agreement pursuant to under this Section 8.1(e8.1(d);
(e) if Parent or Merger Sub is then in material by the Company with respect to a particular Investor upon a breach of any representation, warranty, covenant or agreement on the part of its covenants or agreements contained such Investor set forth in this Agreement; or, or if any representation or warranty of such Investor shall have become untrue, such that the conditions set forth in Section 5.2(a) could not be satisfied by the date specified in paragraph (b) above;
(f) by Parent either the Company or any of the Investors in the event the approval of the issuance of the Shares by the stockholders shall not have obtained at the Special Meeting;
(g) by the Company at any time prior to the date and time that the Company Requisite Vote is obtained and a copy Investors (which shall include Substitute Investors as from time to time reflected on Annex A hereto) are not collectively obligated as parties to this Agreement to purchase all of the written consent Shares; or
(h) by either the Company or the Investors in the event the Exchange and Redemption Agreement is delivered to Parentterminated.
Appears in 2 contracts
Sources: Subscription Agreement (Waste Services, Inc.), Subscription Agreement (Prides Capital Partners, LLC)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at (a) 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 Company, this Agreement may be terminated:
(ai) by mutual written consent duly authorized by each party’s Board of Parent and the CompanyDirectors;
(bii) by either Parent or Company, if the Company if any court of competent jurisdiction Closing shall not have occurred on or other Governmental Entity having jurisdiction over the Company shall have issued a final orderbefore September 30, 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; 2004 (provided, howevera later date may be agreed upon in writing by the parties hereto, and provided further that the right to terminate this Agreement pursuant to under this Section 8.1(b7.1(a)(ii) shall not be available to any party whose action or failure to act has been the party seeking cause or resulted in the 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);
(ciii) by Parent Parent, if the Board of Directors of Company shall have withdrawn or modified its recommendation of this Agreement or the Merger in a manner adverse to Parent or shall have resolved to do any of the foregoing in response to a Takeover Proposal;
(iv) by Company, if Parent shall breach any representation, warranty, obligation or agreement hereunder which breach results in a Parent Material Adverse Effect and such breach shall not have been consummated on or before September cured within fifteen (15) days following receipt by Parent of written notice from Company of such breach, 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 to terminate this Agreement pursuant to by Company under this Section 8.1(c7.1(a)(iv) shall not be available to the party seeking to terminate if any action Company where Company is at that time in 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 to occur on or before the Parent Termination Date or the Company Termination Date, as applicableAgreement;
(dv) by the Parent, if Company if there shall have been a breach of any representation, warranty, covenant obligation or agreement on the part of Parent or Merger Sub contained hereunder which breach results 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, a Company Material Adverse Effect and such breach is not curable or shall not have been cured prior to the earlier within fifteen (15) days following receipt by Company of (A) ten (10) Business Days following written notice from Parent of such breach to Parent and (B) the Company Termination Date; breach, provided that the Company shall not have the right to terminate this Agreement pursuant to by Parent under this Section 8.1(d7.1(a)(v) if the Company shall not be available to Parent where Parent is then at that time 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 either Parent or Company if (A) any permanent injunction or other order of a court or other competent authority preventing the consummation of the Merger shall have become final and nonappealable, or (B) Parent Stockholder Approval or Company Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a vote held at a duly held meeting of stockholders of that Person or 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 Parentadjournment thereof.
Appears in 2 contracts
Sources: Merger Agreement (Nptest Holding Corp), Agreement and Plan of Reorganization (Credence Systems 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 Stockholdersstockholders 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 prior to the Acceptance 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) shall not be available to the party seeking to terminate if unless such party shall have in all material respects complied with its obligations to contest, appeal and remove such judgment, order, injunction, rule, decree, ruling or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply other action in accordance with Section 6.8;6.6; 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 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, Merger Sub’s failure to accept for payment all Shares validly tendered and not validly withdrawn pursuant to the failure Offer on or prior to the Outside Date;
(c) by Parent, at any time prior to the Acceptance Time:
(i) if (A) (x) any of the Effective Time 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 occur on perform any of its covenants or before agreements set forth in this Agreement, in the case of each of clause (x) and (y) such that any condition set forth in Exhibit A would not be satisfied; 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 an Adverse Recommendation Change, (B) approved, endorsed or recommended to the Company’s stockholders an Acquisition Proposal other than the Offer or the Merger, (C) failed to publicly reaffirm its recommendation of this Agreement within three (3) 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 recommendation of the Company Termination DateBoard that the holders of Shares accept the Offer, as applicabletender their Shares to Merger Sub pursuant to the Offer and, if necessary under applicable Law, adopt this Agreement and approve the Merger and the other transactions contemplated hereby in accordance with the provisions of the DGCL, or (E) failed to recommend against a competing tender offer or exchange offer for twenty percent (20%) or more of the outstanding capital stock of the Company within five (5) Business Days after such commencement (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders); or
(iii) if the Company breaches, in any material respect, Section 6.3;
(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 concerning a transaction that is 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 6.3 and enters into such definitive agreement concurrently with such termination and pays the Termination Fee and Expenses 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 (I Flow Corp /De/), Merger Agreement (Kimberly Clark Corp)
Termination. This Agreement A termination of this agreement is either (1) for death ----------- or disability under Section 5 (a) or 5 (b); (2) with cause under Section 5 (c); or for good reason under Section 5 (d). All other terminations which 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:occur shall constitute a breach of this agreement.
(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 The Company shall have issued the right to terminate the employment of the Executive under this Agreement for disability in the event Executive suffers an injury, illness or incapacity of such character as to substantially disable him from performing his duties without reasonable accommodation by the Company hereunder for a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting period of more than sixty (60) consecutive days upon the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableCompany giving at least thirty (30) days written notice of termination; provided, however, that if the right Executive is eligible to receive disability payments pursuant to a disability policy paid for by the Company, the Executive shall assign such benefits to the Company for all periods as to which he is receiving full payment under this agreement.
(b) This agreement shall terminate upon the death of Executive.
(c) The Company may terminate this agreement at any time because of (i) Executive's material breach of any term of this agreement, (ii) the willful engaging by the Executive in misconduct which is materially injurious to the Company, monetarily or otherwise; provided, in each case, however, that the Company shall not terminate this Agreement pursuant to this Section 8.1(b5(c) unless the Company shall not be available first have delivered to the party seeking to terminate if Executive, a notice which specifically identifies such party breach 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 misconduct and the Merger Executive shall not have been consummated on or before September cured the same within fifteen (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 days after receipt of such party notice, (iii) Executive's gross negligence in the performance of his duties or any of its Subsidiaries or (iv) the failure of such party or any of its Subsidiaries Executive to perform any of its obligations under this Agreement required to be performed at his essential duties or prior to the Effective Time has been the cause of, or resulted in, the failure comply with reasonable directions of the Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;Directors.
(d) by The Executive may terminate his employment for "Good Reason" if:
(i) he is assigned, without his express written consent, any duties inconsistent with his positions, duties, responsibilities, authority and status with the Company if there as of the date hereof, or a change in his reporting responsibilities or titles as in effect as of the date hereof;
(ii) his compensation is reduced;
(1) the Company shall have been file a breach of any representation, warranty, covenant petition for bankruptcy or agreement on re- organization under the part of Parent federal bankruptcy statues or Merger Sub contained in this Agreement such that any condition set forth in subsection an involuntary petition is filed against the Company and not removed or withdrawn within thirty (a30) days or (b2) the Company does not pay any material amount of Section 7.3 would not be satisfied and, in compensation due hereunder and then fails either to pay such case, such breach is not curable or shall not have been cured prior to amount within the earlier of (A) ten (10) Business Days following written day notice of period required for termination hereunder or to contest in good faith said notice. Further, if such breach to Parent and contest is not resolved within thirty (B30) the Company Termination Date; provided that days the Company shall not have the right submit such dispute to terminate this Agreement pursuant to this arbitration, under 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 Parent7.
Appears in 2 contracts
Sources: Employment Agreement (American International Industries Inc), Employment Agreement (American International Industries 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 Company:
(a) by mutual written consent of Company and Parent in a written instrument authorized by the Boards of Directors of Company and the CompanyParent;
(b) by Parent either Company or the Company Parent, if any court Governmental Entity that must grant a Parent Requisite Regulatory Approval or a Company Requisite Regulatory Approval has denied approval of the 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 and nonappealable order, injunction or decree or ruling or taken any other final action restraining, permanently enjoining or otherwise prohibiting or making illegal the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that consummation of the right to terminate transactions contemplated by 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 Parent either Company or Parent, if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by first anniversary of 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 date of this Agreement pursuant unless the failure of the Closing to this Section 8.1(c) occur by such date shall not be available due 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 set forth in 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;
(d) by either Company or Parent (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 set forth in this Agreement on the part of Company, in the case of a termination by Parent, or Parent or Merger Sub contained Sub, in this Agreement such that any condition the case of a termination by Company, which breach, either individually or in the aggregate, would result in, if occurring or continuing on the Closing Date, the failure of the conditions set forth in subsection Section 7.2 or 7.3, as the case may be, and which is not cured within 30 days following written notice to the party committing such breach or by its nature or timing cannot be cured within such time period;
(ae) by Parent, if (i) the Board of Directors of Company shall have (A) failed to recommend in the Joint Proxy Statement the approval and adoption of this Agreement, (B) made any Change of Recommendation, (C) approved or recommended, or publicly proposed to approve or recommend, any Alternative Proposal, whether or not permitted by the terms hereof or (bD) failed to recommend to Company’s stockholders that they reject any tender offer or exchange offer that constitutes an Alternative Transaction within the ten business day period specified in Rule 14e-2(a) of the Exchange Act, or (ii) Company shall have breached its obligations under Section 7.3 would not be satisfied and6.3 in any material respect;
(f) by Company, if Parent shall have breached its obligations under Section 6.3 in any material respect;
(g) by either such caseCompany or Parent, such breach is not curable or if the approval of Company stockholders required by Section 7.1(a) shall not have been cured prior to obtained at a meeting of Company stockholders convened for purposes of approving and adopting this Agreement; or
(h) by either Company or Parent, if the earlier approval of (AParent stockholders required by Section 7.1(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 been obtained at a meeting of Parent stockholders convened for purposes of approving the right issuance of Parent Common Stock in the Merger. 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 or agreements contained in this Agreement;
clause (b), (c), (d), (e) by Parent if there shall have been a breach of any representation), warranty(f), covenant or agreement on the part of the Company contained in this Agreement such that any condition set forth in subsection (ag) or (bh) of this Section 7.2 would not be satisfied and, in either such case, such breach is not curable or 8.1 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 9.4, 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 (Merrill Lynch & Co Inc), Merger Agreement (Merrill Lynch & 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 Stockholders:
(a) by the mutual written consent of Parent and the Company;
(b) by Parent, if there has been a violation or breach by Company of any covenant, representation or warranty of Company contained in this Agreement that would prevent the satisfaction of any condition to the obligation of Parent to consummate the Closing, and such violation or breach has not been expressly waived in writing by Parent, or has not been cured by Company within thirty (30) days after written notice thereof from Parent (or has not been cured by Company within five (5) days after written notice thereof from Parent in the event such Company fails to consummate the Closing on the second Business Day following satisfaction or waiver of each of the conditions set forth in Article 5 (other than conditions that are to be satisfied at Closing));
(c) by Company, if there has been a violation or breach by Parent of any covenant, representation or warranty contained in this Agreement that would prevent the satisfaction of any condition to the obligations of Company to consummate the Closing, and such violation or breach has not been expressly waived in writing by Company, or has not been cured by Parent within thirty (30) days after written notice thereof from Company (or has not been cured by Parent within five (5) days after written notice thereof from Company in the event Parent fails to consummate the Closing on the second Business Day following satisfaction or waiver of each of the conditions set forth in Article 5 (other than conditions that are to be satisfied at Closing));
(d) by either Parent or Company, if the Company if any court of competent jurisdiction transactions contemplated hereby have not been consummated on or other Governmental Entity having jurisdiction over prior to January 31, 2019 (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“Termination Date”); provided, howeverthat (i) if the satisfaction, or waiver by the appropriate party, of all of the conditions contained in Article 5 hereof (other than those conditions that by their terms or nature are to be satisfied at the right Closing) occurs two Business Days or less prior to the Termination Date, then neither Parent nor Company shall be permitted to terminate this Agreement pursuant to this Section 8.1(b6.1(d) shall not be available to until 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 third Business Day after the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”), or by the ; and (ii) neither Parent nor Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right be entitled to terminate this Agreement pursuant to this Section 8.1(c6.1(d) if such Person’s or its Affiliates’ breach of this Agreement has prevented the consummation of the transactions contemplated hereby;
(e) by either Parent or Company, if any Governmental Authority issues any order, judgment, injunction, decree or other legally binding pronouncement permanently enjoining, restraining or otherwise prohibiting the transactions contemplated hereby, which shall not be available to have become final and non-appealable; provided, that the party seeking to terminate if any action termination 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(d6.1(e) if used commercially reasonable efforts (in accordance with the Company is then in material breach terms 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 (aand Section 4.9) 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 resist and otherwise challenge the earlier of (A) ten (10) Business Days following written notice entry 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 order, judgment, injunction, decree 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.other legally binding pronouncement;
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Power Solutions, Inc.), Merger Agreement (Cleanspark, 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 Buyer and the CompanySeller;
(b) by Parent any one of Buyer or Seller, by giving written notice of such termination to the Company other party, on or after the day that is 270 days after the date hereof (and if any court of competent jurisdiction or such day is not a Business Day, then the next following Business Day) (the “Outside Date”), if the Closing shall not have occurred, subject to Section 10.6, prior to the Outside Date; provided that neither Seller, on the one hand, nor Buyer, on the other Governmental Entity having jurisdiction over the Company shall have issued a final orderhand, 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 may terminate this Agreement pursuant to this Section 8.1(b9.1(b) shall not be available to the party seeking to terminate if at any time during which such party or any is in material 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 Parent Buyer, if there has been a material violation or breach by Seller of any representation or warranty (or any such representation or warranty shall have become untrue in any material respect after the Merger shall date of this Agreement) or covenant or agreement contained in this Agreement which, in either case, would prevent the satisfaction of or result in the failure of any condition to the obligations of Buyer at the Closing and such violation or breach has not have been consummated on waived by Buyer or, in the case of a breach of any covenant or before September 15agreement under this Agreement that is curable, 2008 has not been cured by Seller within ten (the “Parent Termination Date”), or 10) days after receipt by the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”)Seller of written notice of such breach from Buyer; provided, however, that the right to Buyer may not terminate this Agreement pursuant to this Section 8.1(c9.1(c) shall not be available to the party seeking to terminate if at any action time during which Buyer is in such 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 to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;Agreement; or
(d) by the Company Seller, if there has been a material violation or breach by Buyer of any representation or warranty (or any such representation or warranty shall have become untrue in any material respect after the date of this Agreement) or covenant or agreement contained in this Agreement which would, in either case, prevent the satisfaction of or result in the failure of any condition to the obligations of Seller at the Closing and such violation or breach has not been waived by Seller or, with respect to a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in under this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would is curable, 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) by Buyer within ten (10) Business Days following days after receipt by Buyer of written notice of such breach to Parent and (B) the Company Termination Datefrom Seller; provided provided, however, that the Company shall Seller may not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(d) if the Company at any time during which Seller is then in such 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 2 contracts
Sources: Asset Purchase Agreement (Hershey Co), Asset Purchase Agreement (B&G Foods, 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 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 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 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 January 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 nonappealable1998; provided, however, 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 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 required 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 of Company Common Stock pursuant to be performed at the Offer or shares of Company Common Stock or Class B Shares pursuant to the Merger and such order, decree or ruling or other action shall have become final and nonappealable;
(c) by Parent or Sub 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 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 of Company;
(Ad) ten (10) Business Days following written notice of such breach to by Parent and (B) the Company Termination Date; provided that the Company shall not have the right or Sub if either Parent or Sub is entitled to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach Offer as a result of the occurrence of any event set forth in paragraph (d) of its covenants or agreements contained in Exhibit A to this Agreement;
(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 simultaneously with such termination the Company pays to Parent the Expenses and the Termination Fee specified under Section 7.05(b)(ii);
(f) by the Company, if there Sub or Parent 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 2 contracts
Sources: Merger Agreement (Graphic Industries Inc), Merger Agreement (Wallace Computer Services 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 approval of the stockholders of Company:
(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 June 30, 2000 for any reason; PROVIDED, 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 either Company or Parent if any court of competent jurisdiction or other a Governmental Entity having jurisdiction over the Company shall have issued a final an order, decree or ruling or taken any other final action action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger and such Merger, which order, decree, ruling or other action is or shall have become final and nonappealable;
(d) by either Company or Parent if the required approval of the stockholders of Company contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at a meeting of Company stockholders duly convened therefor or at any adjournment thereof; providedPROVIDED, howeverHOWEVER, 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 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 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 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 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, PROVIDED, that if such inaccuracy in Parent's representations and warranties or 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(e) for thirty (30) days after delivery of written notice from Company to Parent and of such breach, provided Parent continues to exercise commercially reasonable efforts to cure such 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 (e) 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 during such thirty (30)-day period);
(ef) 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 commercially reasonable efforts, then Parent may not curable terminate this Agreement under this Section 7.1(f) for thirty (30) 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 (it being understood that Parent may not terminate this Agreement pursuant to this paragraph (f) if it shall have materially breached this Agreement or if such breach by Company is cured during such thirty (30)-day period);
(g) by Parent, upon a breach of the provisions of Section 5.4 of this Agreement;
(h) by Parent if a Triggering Event (as defined below) shall have occurred; or
(i) by either Company or Parent if the required approval by the stockholders of Parent contemplated by this Agreement shall not have been cured prior obtained by reason of the failure to obtain the earlier required vote at a meeting of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Datestockholders duly convened therefor or at any adjournment thereof; provided PROVIDED, HOWEVER, that Parent shall not have the right to terminate this Agreement pursuant to under this Section 8.1(e7.1(i) if shall not be available to Parent where the failure to obtain Parent stockholder approval shall have been caused by the action or Merger Sub is then in material failure to act of parent and such action or failure to act constitutes a breach by Parent of any of its covenants or agreements contained in this Agreement. For the purposes of this Agreement, a "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 five (5) business days after Parent requests in writing that such recommendation be reaffirmed at any time prior following the announcement of an Acquisition Proposal; (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 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 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 date and time 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 Requisite Vote is obtained and a copy recommends rejection of the written consent is delivered to Parentsuch tender or exchange offer.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Informix Corp), Agreement and Plan of Reorganization (Informix 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 StockholdersClosing:
(a) by the mutual written consent of Parent Parent, Rodeo, Inc., Seller and the CompanyBuyer;
(b) by Parent either Parent, Rodeo, Inc., Seller or Buyer if the Company if any court of competent jurisdiction Closing shall not have occurred on or other Governmental Entity having jurisdiction over before the Company shall have issued a final orderdate that is sixty (60) days from the date hereof (the "TERMINATION 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, provided that the right party seeking to terminate this Agreement pursuant to this Section 8.1(b8.01(b) shall not be available have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the party seeking failure to terminate if such party consummate the transactions contemplated hereby 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 Termination Date;
(c) by Parent Parent, if (i) there has been a breach by Buyer of any representation or warranty of Buyer contained in this Agreement which would reasonably be expected to have a Material Adverse Effect on the Merger shall Company's ability to conduct its business after the Closing and which by its nature or timing cannot have been consummated on or before September 15, 2008 (be cured prior to the “Parent Termination Date”, or prevent or delay the consummation of the transactions contemplated hereby beyond the date specified in Section 8.01(b), or (ii) there has been a breach of any of the covenants or agreements set forth in this Agreement on the part of Buyer, which would reasonably be expected to have a Material Adverse Effect on the Company's ability to conduct its business after the Closing and which by its nature or timing cannot be cured prior to the Company if the Merger shall not have been consummated on or before September 30, 2008 (the “Company Termination Date”, or prevent or delay the consummation of the transactions contemplated hereby beyond the date specified in Section 8.01(b); , provided, however, that the right to Parent may not terminate this Agreement pursuant to this Section 8.1(c8.01(c) if Parent, Rodeo, Inc. or Seller shall not be available to the party seeking to terminate if any action in material breach of such party or any of its Subsidiaries their representations, warranties, covenants 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 applicableagreements hereunder;
(d) by the Company either Parent, Rodeo, Inc., Seller, or Buyer if there any Governmental Authority or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order making the consummation of the transactions contemplated hereby illegal or otherwise prohibiting the transactions contemplated thereby and such Governmental Order shall have become final and nonappealable, provided that the party seeking to terminate this Agreement shall have used its reasonable best efforts to remove or lift such Governmental Order;
(e) by Buyer, if (i) there has been a breach by Parent, Rodeo, Inc. or Seller of any representation or warranty of Parent, Rodeo, Inc. and Seller contained in this Agreement which would reasonably be expected to have a Material Adverse Effect and which by its nature or timing cannot be cured prior to the Termination Date, or prevent or delay the consummation of the transactions contemplated hereby beyond the date specified in Section 8.01(b), or (ii) there has been a breach of any representation, warranty, covenant of the covenants or agreement agreements set forth in this Agreement on the part of Parent Parent, Rodeo, Inc. or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) Seller, which could reasonably be expected to have a Material Adverse Effect and which by its nature or (b) of Section 7.3 would timing cannot be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier Termination Date or prevent or delay the consummation of (A) ten (10) Business Days following written notice of such breach to Parent and (B) the Company Termination Date; provided transactions contemplated hereby beyond the date specified in Section 8.01(b), provided, that the Company shall Buyer may not have the right to terminate this Agreement pursuant to this Section 8.1(d8.01(e) if the Company is then Buyer shall be in material breach of any of its their 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 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 Agreementhereunder; or
(f) by Parent at any time Parent, prior to the 30th day following the date of this Agreement and time that in accordance with Section 5.11, provided, however, in order for the Company Requisite Vote is obtained termination of this Agreement pursuant to this Section 8.01(f) to be deemed effective, Rodeo, Inc. and a copy Seller shall have complied with all provisions therein, and with the applicable requirements of Section 8.02, including the payment of the Termination Fee. The party desiring to terminate this Agreement pursuant to Section 8.01(a) through (f) shall give written consent is delivered notice of such termination to Parentthe other party in accordance with Section 9.02.
Appears in 2 contracts
Sources: Unit Transfer and Contribution Agreement (Plains Resources Inc), Unit Transfer and Contribution Agreement (Plains Resources 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 of Parent Seller and the CompanyPurchaser;
(b) by Parent either Seller or by Purchaser, if:
(i) the Company if any court of competent jurisdiction Closing shall not have occurred on or other Governmental Entity having jurisdiction over before August 12, 2022 (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“Outside Date”); 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 any party to this Agreement whose failure to perform any material covenant or obligation under this Agreement has been the cause of, or has resulted in, the failure of the Closing to occur on or before such date or to any party seeking during the pendency of any Action brought by the other party for specific performance of this Agreement;
(ii) Seller (in the case of a termination by Purchaser) or Purchaser (in the case of a termination by Seller) shall have materially breached or failed to terminate if such party or perform any of its Subsidiaries has failed respective representations, warranties, covenants or other agreements contained in this Agreement, and such breach or failure to take such actions with respect thereto as are required perform (A) would give rise to comply with the failure of a condition set forth in Section 6.8;
(c) by Parent if the Merger shall not have been consummated on or before September 15, 2008 (the “Parent Termination Date”8.2(a), Section 8.2(b), Section 8.3(a) or Section 8.3(b), as applicable, and (B) (1) is incapable of being cured prior to the Outside Date or (2) has not been cured prior to the date that is thirty (30) days from the date that the breaching or non-performing party is notified in writing by the Company if other party of such breach or failure to perform, which notice shall state the Merger shall not have been consummated on or before September 30, 2008 (party’s intention to terminate this Agreement pursuant to this Section 9.1(b)(ii) and the “Company Termination Date”)basis for such termination; provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b)(ii) shall not be available to the any party seeking to terminate this Agreement if any action of such party shall have materially breached or any of its Subsidiaries or the failure of such party or any of its Subsidiaries failed 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
(fiii) any Legal Restraint permanently enjoining or prohibiting consummation of the Sale shall be in effect and shall have become final and nonappealable; provided, that the right to terminate this Agreement pursuant to this Section 9.1(b)(iii) shall not be available to any party to this Agreement whose failure to perform any material covenant or obligation under this Agreement has been the cause of, or has resulted in, any such Legal Restraint; or
(c) by Parent Seller, if (i) all of the conditions in Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied at any time the Closing, but which are capable of being satisfied) have been satisfied or waived, (ii) Seller has irrevocably notified Purchaser in writing at least two (2) Business Days prior to such termination that Seller is ready, willing and able to consummate the date Closing, and time that (iii) Purchaser has failed to consummate the Company Requisite Vote is obtained and a copy Closing within two (2) Business Days after the giving of the written consent is delivered such notice by Seller pursuant to Parentclause (ii).
(d) by either Purchaser or Seller (as applicable) pursuant to Section 5.22(e).
Appears in 2 contracts
Sources: Equity Purchase Agreement (Pseg Power LLC), Equity Purchase Agreement (Pseg Power LLC)
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 any requisite approval and adoption thereof of this Agreement and the Transactions by the Stockholdersstockholders of the Company:
(a) by mutual written consent of Parent each of Parent, Purchaser and the Company duly authorized by the Boards of Directors of Parent, Purchaser and the Company;; or
(b) by Parent either Parent, Purchaser or the Company if any court of competent jurisdiction (i) 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 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 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 Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling which has become final and nonappealable and has the Parent Termination Date effect of making consummation of the Offer or the Company Termination Date, as applicable;Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger; or
(dc) by the Company Parent if there shall have been (i) due to an occurrence or circumstance that would result in a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that failure to satisfy any condition set forth in subsection Annex A hereto, Purchaser shall have (aA) failed to commence the Offer within 30 days following the date of this Agreement, (B) terminated the Offer without having accepted any Shares for payment thereunder or (C) failed to accept Shares for payment pursuant to the Offer within 90 days following the commencement of the Offer (provided, however, that the -------- ------- applicable time period specified in (A) and (C) above shall be extended until July 31, 2001), unless such action or inaction under (A), (B) or (bC) shall have been caused by or resulted from the failure of Section 7.3 would not be satisfied andParent or Purchaser to perform, in either such caseany material respect, 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 material covenants or agreements contained in this Agreement;
(e) , or the material breach by Parent if there shall have been a breach or Purchaser of any representation, warranty, covenant of their material representations or agreement on the part of the Company warranties contained in this Agreement or (ii) prior to the purchase of Shares pursuant to the Offer, the Board or any committee thereof shall have withdrawn or modified in a manner adverse to Purchaser or Parent its approval or recommendation of this Agreement, the Offer or the Merger, or shall have recommended or approved any Acquisition Proposal, or shall have resolved to do any of the foregoing; or
(d) by the Company, upon approval of the Board, if (i) Purchaser shall have (A) failed to commence the Offer within 30 days following the date of this Agreement, (B) terminated the Offer without having accepted any Shares for payment thereunder or (C) failed to accept Shares for payment pursuant to the Offer within 90 days following the commencement of the Offer (provided, however, that the applicable time -------- ------- period specified in (A) and (C) above shall be extended until July 31, 2001), unless such that any condition set forth in subsection action or inaction under (aA), (B) or (bC) shall have been caused by or resulted from the failure of Section 7.2 would not be satisfied andthe Company to perform, in either such caseany material respect, 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 material covenants or agreements contained in this Agreement; or
Agreement or the material breach by the Company of any of its material representations or warranties contained in this Agreement or (fii) by Parent at any time prior to the date purchase of Shares pursuant to the Offer, the Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel in order to enter into a definitive agreement with respect to a Superior Proposal, upon five calendar days' prior written notice to Parent, setting forth in reasonable detail the identity of the person making, and time the final terms and conditions of, the Superior Proposal; provided, however, that any termination of this -------- ------- Agreement pursuant to this Section 9.01(d)(ii) shall not be effective until the Company Requisite Vote is obtained and a copy has made full payment of the written consent is delivered to Parentall amounts provided under Section 9.03.
Appears in 2 contracts
Sources: Merger Agreement (Siemens Aktiengesellschaft/Adr), Merger Agreement (Siemens Aktiengesellschaft/Adr)
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 (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 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. Houston time, 2008 (on April 30, 2021(such date, 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)(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 (aSections 7.2(a) or (b) of or Section 7.3 would not be satisfied and7.3(a) or (b), in either such case, as applicable (and such breach is not curable prior to the End Date, or shall if curable prior to the End 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 End 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
(iv) 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 Stockholder Approval shall not have been obtained upon a vote held at a duly held Parent Stockholders Meeting, or at any adjournment or postponement thereof;
(c) by Parent, prior to, but not after, the 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 Parent, if the Company, its Subsidiaries or any of the Company’s directors or executive officers shall have Willfully and Materially Breached the obligations set forth in Section 6.3(b) (No Solicitation by the Company); or
(f) by Parent at the Company, if Parent, its Subsidiaries or any time prior to of Parent’s directors or executive officers shall have Willfully and Materially Breached the date and time that the Company Requisite Vote is obtained and a copy of the written consent is delivered to obligations set forth in Section 6.4(b) (No Solicitation by Parent).
Appears in 2 contracts
Sources: Merger Agreement (Conocophillips), Merger Agreement (Concho Resources Inc)
Termination. This Notwithstanding anything contained in this Agreement 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 whether before or after the StockholdersCompany Stockholder Approval is obtained (except as otherwise expressly noted), as follows:
(a) by mutual written consent 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 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 155:00 P.M. (New York City time) on August 29, 2008 2019 (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 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 or comply with any of its obligations under this Agreement required to be performed at or prior to the Effective Time in any material respect has been the principal cause of, of or principally resulted in, in the failure of the Effective Time Closing to occur have occurred on or before the Parent Termination Date or the Company Termination Date, as applicable;
(dii) if any Governmental Authority of competent jurisdiction shall have issued or entered any Order after the date of this Agreement or any Law shall have been enacted or promulgated after the date of this Agreement that has the effect of permanently restraining, enjoining or otherwise prohibiting the Merger or other transactions contemplated by this Agreement, and in the case of such an Order, such Order shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a party if the failure of such party to perform or comply with any of its obligations under this Agreement in any material respect has been the principal cause of or principally resulted in the issuance of such Order; or
(iii) if the Company Stockholder Approval shall not have been obtained upon a vote taken thereon at the Company Stockholders’ Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the adoption of this Agreement was taken.
(c) 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 shall have breached or failed to perform any of their respective representations, warranties, covenants or other agreements set forth in this Agreement such that any Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in subsection (aSection 6.3(a) or Section 6.3(b) and (bB) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable capable of being cured by Parent or Merger Sub, as applicable, by the Termination Date or, if capable of being cured, shall not have been cured prior to by Parent or Merger Sub on or before the earlier of (Ax) ten the Termination Date and (10y) Business Days the date that is thirty (30) calendar days following the Company’s delivery of written notice to Parent of such breach or failure to Parent and (B) the Company Termination Dateperform; provided provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d7.1(c)(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 representation, warranty, covenant or agreement on the part of the Company contained in obligations under this Agreement such that any so as to result in the failure of a 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 Agreement6.2(b); or
(fii) by Parent at any time prior to receipt of the date Company Stockholder Approval, in order for the Company to enter into a definitive agreement with respect to a Company Superior Proposal to the extent permitted by, and time subject to the applicable terms and conditions of, Section 5.5(d); provided, however, that immediately prior to or simultaneously with such termination, the Company pays to Parent the Company Termination Fee (it being understood that the Company Requisite Vote is obtained and a copy may enter into such definitive written agreement simultaneously with such termination of the written consent is delivered to Parentthis Agreement).
Appears in 2 contracts
Sources: Merger Agreement (K2m Group Holdings, Inc.), Merger Agreement (Stryker Corp)
Termination. This Agreement may be terminated and the Merger and the other transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether before or, subject to the terms hereof, 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 Company, if any court applicable Law makes consummation of the Merger illegal or any 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 Order or taken any other final action restrainingand non-appealable Action enjoining, enjoining restraining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableconsummation of the Merger; provided, however, provided that the right to terminate this Agreement pursuant to under this Section 8.1(b) shall not be available to any party whose breach of this Agreement (including Section 6.3 hereof) has been a proximate cause of, or resulted in the party seeking to terminate if issuance of, such party or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8Order;
(c) by either Parent or the Company, if the Merger shall not have been consummated on or before September 15January 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 under this Section 8.1(c) shall not be available to the 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 proximate 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 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, which in either case, (x) would result in a failure of a condition set forth in Section 7.2(a) or Section 7.2(b) (a “Terminating Company Breach”), and (y) is not cured (I) within thirty (30) Business Days following notice by Parent of such Terminating Company Breach or (II) any shorter period of time that remains between the date Parent provides notice of such Terminating Company Breach and the Outside Date, provided that Parent may not terminate this Agreement under this Section 8.1(d) if Parent or Merger Sub is in willful and material breach of any representation, warranty or covenant contained in this Agreement and such breach would give rise to the failure of a condition set forth in Section 7.3(a) or 7.3(b);
(e) by the Company, in the event of a material breach by Parent or Merger Sub, as the case may be, of any representation, warranty, covenant or other agreement contained herein, or if a representation or warranty of Parent or Merger Sub Sub, as the case may be, shall have become untrue, which in either case, (i) would result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b) (a “Terminating Parent Breach”), and (ii) is not cured (x) within thirty (30) Business Days following notice by the Company of such Terminating Parent Breach or (y) any shorter period of time that remains between the date the Company provides notice of such Terminating Parent Breach and the Outside Date, provided that the Company may not terminate this Agreement under this Section 8.1(e) if the Company is in willful and material breach of any representation, warranty or covenant contained in this Agreement and such that any breach would give rise to the failure of a condition set forth in subsection (aSection 7.2(a) or Section 7.2(b);
(bf) by either Parent or the Company, if the Company Stockholders shall have failed to adopt and approve this Agreement at the Company Stockholders’ Meeting or at any adjournment or postponement thereof;
(g) by Parent if (i) the Company Board shall have made a Change of Section 7.3 would not be satisfied and, in either such case, such breach is not curable Recommendation or shall not have been cured approve or recommend or otherwise declare advisable to the Company Stockholders an Acquisition Proposal, (ii) the Company Board approves, adopts or recommends or the Company or any of its Subsidiaries enters into an Alternative Acquisition Agreement, (iii) following the date any bona fide Acquisition Proposal or any material modification thereto is first publicly announced or publicly disclosed prior to the time when the Company Stockholders’ Approval is obtained, the Company fails to issue a press release that reaffirms the Company Recommendation (prior to the earlier of (Ax) ten (10) Business Days following Parent’s written notice request (which request may only be made once with respect to such Acquisition Proposal absent further material changes in such Acquisition Proposal), unless, in the case of the following clause (y), it would be inconsistent with the Company Board’s fiduciary duties to comply with such breach to Parent request within such time period, in which case the Company shall comply with such request as promptly as practicable consistent with the Company Board’s fiduciary duties) and (By) five (5) Business Days prior to the Company Termination Date; provided Stockholders’ Meeting, or (iv) any tender offer or exchange offer constituting an Acquisition Proposal is commenced or materially modified by any third party with respect to the outstanding Company Common Stock prior to the time at which the Company receives the Company Stockholders’ Approval, and the Company Board shall not have recommended that the Company shall Stockholders reject such tender offer or exchange offer and not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the tender their Company is then in material breach of any of its covenants Common Stock into such tender offer 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) exchange offer within ten (10) Business Days following written notice after commencement or material modification of such breach to tender offer or exchange offer, unless the Company and has issued a press release that expressly reaffirms the Company Recommendation within such ten (B10) 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 AgreementBusiness Day period; or
(fh) by Parent the Company, at any time prior to the date and time that the Company Requisite Vote Stockholders’ Approval is obtained obtained, if the Company Board shall have (i) approved a Superior Proposal in accordance with Section 6.4(c), (ii) the Company prior to or concurrently with such termination pays Parent in immediately available funds the Company Termination Amount, and a copy (iii) immediately after the termination of this Agreement, the written consent is delivered Company enters into an Alternative Acquisition Agreement with respect to Parentthe Superior Proposal referred to in the foregoing clause (i).
Appears in 2 contracts
Sources: Merger Agreement (Clearwater Paper Corp), Merger Agreement (Cellu Tissue Holdings, 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 Stockholderswhether before or after Company Stockholder Approval:
(a) by mutual written consent of Parent Parent, Sub and the Company;
(b) by either Parent or the Company Company:
(i) if the Offer terminates or expires in accordance with its terms without Sub having accepted Shares for payment pursuant to the Offer on or before December 31, 2006 (the “Outside Date”); 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 fulfill any obligation under this Agreement has been the cause of, or resulted in, (A) any of the conditions to the Offer set forth in Exhibit A having failed to be satisfied on or before the Outside Date or (B) the expiration or termination of the Offer without Sub having accepted Shares for payment pursuant to the Offer;
(ii) if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree issues an Order or ruling or taken takes any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the Merger and such order, decree, ruling Order or other action is or shall have become final and nonappealable; or
(iii) (A) if Sub shall have failed to commence the Offer within thirty (30) days following the date of this Agreement or (B) if the Offer shall have terminated or expired in accordance with its terms without Sub having purchased any Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(bclause (iii) 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 or the failure of whose representations and warranties to take be true results in the failure of any such actions with respect thereto as are required to comply with Section 6.8condition;
(c) by Parent Parent, if the Merger shall Company breaches or fails to perform in any material respect any of its representations, warranties, covenants 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 Exhibit A, and (ii) cannot have be or has not been consummated on or before September 15, 2008 cured within thirty (30) days after the “Parent Termination Date”), or by giving of written notice to the Company if the Merger shall of such breach (provided that Parent is not have been consummated on then in material breach of any representation, warranty or before September 30, 2008 (the “Company Termination Date”covenant contained in any Transaction Agreement); provided, however, that this Agreement may not be terminated pursuant to this clause (c) if Sub has accepted Shares for payment pursuant to the right Offer;
(d) by Parent:
(i) if the Company Board or any committee thereof authorized by the Company Board in such regard withdraws or modifies, or publicly proposes to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Offer, the Merger or this Agreement or fails to recommend to the Company’s stockholders that they accept the Offer or give Company Stockholder Approval, or the Company Board or any committee thereof resolves to take any of the foregoing actions;
(ii) if the Company Board or any committee thereof authorized by the Company Board in such regard fails to reaffirm publicly and unconditionally its recommendation to the Company’s stockholders that they accept the Offer and give Company Stockholder Approval within ten (10) calendar days of Parent’s written request to do so (which request may only be made at any time following public disclosure of an Alternative Acquisition Proposal), which public reaffirmation must also include the unconditional rejection of such Alternative Acquisition Proposal; or
(iii) if the Company enters into any written agreement (other than a confidentiality agreement complying with the provisions of Section 6.02) with respect to any Alternative Acquisition Proposal or if the Company Board has approved or recommended or publicly proposed to approve or recommend an Alternative Acquisition Proposal.
(e) by the Company, prior to the acceptance of Shares for payment pursuant to the Offer if the Company Board shall have determined to approve, endorse or recommend an Alternative Acquisition Proposal that constitutes a Superior Company Proposal; provided, however, that the Company may not terminate this Agreement pursuant to this Section 8.1(c9.01(e) shall not be available to unless (i) 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 Company has complied in all material respects with its obligations under this Agreement required to be performed Section 6.02 in accordance with the terms thereof, (ii) 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;
least three (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 (103) Business Days following written notice of such breach prior to Parent and (B) the Company Termination Date; provided that the Company shall not have the right to terminate terminating this Agreement pursuant to this Section 8.1(d9.01(e) if the Company is then has provided Parent with written notice advising Parent that the Company Board has received a Superior Company Proposal that it intends to accept, specifying the material terms and conditions of such Superior Company Proposal, and identifying the Person making such Superior Company Proposal, (iii) the Company has caused its financial and legal advisors to negotiate in good faith with Parent to attempt to make such adjustments in the terms of this Agreement that are equal or superior, in the reasonable discretion of the Company Board, to the terms of such Superior Company Proposal, and the Company and Parent have not agreed upon such terms and (iv) the Company has paid to (or concurrently pays to) Parent the Termination Fee in accordance with Section 9.02;
(f) by the Company, if Parent or Sub breaches or fails to 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 (ei) by Parent if there shall have been would give rise to the failure of 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 Article VIII and (aii) or (b) of Section 7.2 would cannot be satisfied and, in either such case, such breach is cured or has not curable or shall 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 (provided that the Company and (B) the Parent Termination Date; provided that Parent shall is 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 representation, warranty or agreements covenant contained in this Agreement); provided, however, that this Agreement may not be terminated pursuant to this clause (f) if Sub has accepted Shares for payment pursuant to the Offer; or
(fg) by Parent at Parent, if any time prior non-officer employee of the Company or any Company Subsidiary, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Company Subsidiary takes any action that, if taken by the Company, would have constituted a violation of the restrictions contained in the first sentence of Section 6.02(a); provided, however, that this Agreement may not be terminated pursuant to this clause (g) if Sub has accepted 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 2 contracts
Sources: Merger Agreement (Click Commerce Inc), Merger Agreement (Illinois Tool Works 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 Closing by the Stockholders:
(a) by mutual written consent of Parent SE Corp and the Company;SEP.
(b) by Parent or the Company if This Agreement may be terminated at 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 time prior to the party seeking to terminate if such party Closing by SE Corp or any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8;by SEP:
(ci) by Parent giving written notice of such termination to SEP, in the case of a termination by SE Corp, or to SE Corp, in the case of a termination by SEP, if the Merger shall Closing has not have been consummated occurred on or before September 15December 31, 2008 2015 (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(c8.13(b)(i) shall not be available to SE Corp or to SEP where the party seeking to terminate if any action failure of such party or any of its Subsidiaries SE Corp or the failure of SEP, as applicable, to fulfill its obligations under this Agreement has caused or resulted in the failure of the Closing to occur on or before the Outside Date; or
(ii) by giving written notice of such party termination to SEP, in the case of a termination by SE Corp, or to SE Corp, in the case of a termination by SEP, if any court of its Subsidiaries competent jurisdiction or a Government Entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting any material part of the Transactions and such order, decree, ruling or other action shall have become final and nonappealable; provided that the right to perform terminate this Agreement under this Section 8.13(b)(ii) shall not be available to SE Corp or to SEP where the failure of SE Corp or the failure of SEP, respectively, to fulfill any of its obligations under this Agreement required to has caused or resulted in such order, decree, ruling or action.
(c) This Agreement may be performed terminated at or any time 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) Closing by the Company SE Corp if 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 SEP in this Agreement Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition the conditions set forth in subsection (aSection 6.1(a) or (bSection 6.1(b) of Section 7.3 would not be satisfied andsatisfied, in either such case, and such breach or condition is not curable or shall or, if curable, is not have been cured prior to the earlier of (Ai) ten (10) Business Days following 30 calendar days after written notice of such breach thereof is given by SE Corp to Parent SEP and (Bii) one Business Day prior to the Company Termination Outside Date; provided that the Company shall SE Corp 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 this Agreement so as to cause any of its covenants the conditions set forth in Section 6.2(a), Section 6.2(b) or agreements contained in this Agreement;Section 6.2(d) not to be satisfied.
(ed) This Agreement may be terminated at any time prior to the Closing by Parent SEP if there shall have has been a breach of any representation, warranty, covenant or agreement on the part of the Company contained made by SE Corp in this Agreement Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition the conditions set forth in subsection (aSection 6.2(a) or (bSection 6.2(b) of Section 7.2 would not be satisfied andsatisfied, in either such case, and such breach or condition is not curable or shall or, if curable, is not have been cured prior to the earlier of (Ai) ten (10) Business Days following 30 calendar days after written notice of such breach thereof is given by SEP to SE Corp and (ii) one Business Day prior to the Company and (B) the Parent Termination Outside Date; provided that Parent shall SEP is 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 this Agreement so as to cause any of the conditions set forth in Section 6.1(a), Section 6.1(b) or Section 6.1(e) not to be satisfied.
(e) In the event of the termination of this Agreement in accordance with this Section 8.13, this Agreement shall thereafter become void and have no effect, and no Party shall have any liability to the other Party or its covenants respective Affiliates, or agreements its or their respective partners, directors, officers or employees, pursuant to this Agreement except for the obligations of SE Corp and SEP contained in this Agreement; or
Section 8.13(e) (fand any related definitional provisions set forth in Article I). Notwithstanding the foregoing, nothing in this Section 8.13(e) by Parent at shall relieve SE Corp or SEP from liability for any time willful breach of this Agreement that arose 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 2 contracts
Sources: Exchange and Redemption Agreement, Exchange and Redemption Agreement (Spectra Energy Partners, LP)
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 by whether before or after the StockholdersRequired Stockholder Approval has been obtained (except as otherwise stated below), as follows:
(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 Parent, if:
(i) the Company Effective Time shall not have issued a final orderoccurred on or before 5:00 p.m. (New York City time) on November 15, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting 2023 (the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable“End Date”); provided, however, that the right no party shall be permitted to terminate this Agreement pursuant to this Section 8.1(b9.01(b)(i) shall not be available to the party seeking to terminate if such party or party’s breach of 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 representations, warranties, covenants 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 agreements set forth in this Agreement pursuant to this Section 8.1(c) in any manner 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, have principally caused or resulted in, in the failure of the Effective Time to occur on or before the Parent Termination Date or the Company Termination End Date, as applicable;
(dii) a Legal Restraint permanently restraining, enjoining, making illegal or otherwise prohibiting consummation of the Merger or the other transactions contemplated hereby shall become final and non-appealable; provided that the party seeking to terminate this Agreement pursuant to this Section 9.01(b)(ii) shall have used reasonable best efforts to prevent the entry of and to remove such Legal Restraint in accordance with Section 7.01; provided, further, that no party shall be permitted to terminate this Agreement pursuant to this Section 9.01(b)(ii) if such party’s breach of any of its representations, warranties, covenants or agreements set forth in this Agreement in any manner shall have principally caused or resulted in the failure of the condition set forth Section 8.02(b) to the consummation of the Merger to be satisfied; or
(iii) the Company Stockholders’ Meeting (as it may be adjourned or postponed in accordance with this Agreement), in each case, at which a vote on the approval of this Agreement was taken, shall have concluded and the Required Stockholder Approval shall not have been obtained; Table of Contents
(c) by Parent, if:
(i) at any time prior to obtaining the Required Stockholder Approval, an Adverse Recommendation Change shall have occurred;
(ii) the Company if there shall have been a breach of breached or failed to perform 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) this Agreement, which breach or (b) failure to perform would cause any of the conditions set forth in Section 7.3 would 8.01 or Section 8.02, as applicable, not to be satisfied andsatisfied, in either such case, and such breach or failure is incapable of being cured by the End Date or, if curable by the End Date, is not curable or shall not have been cured prior to by the Company within the earlier of (A) ten (10) Business Days following 30 days of receipt by the Company of written notice of such breach or failure or (B) three Business Days prior to the End Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.01(c)(ii) if Parent or Merger Sub is then in breach in any material respect of any of its representations, warranties, covenants or agreements set forth in this Agreement;
(iii) the Company shall have materially breached any of its covenants and agreements under Section 5.03 or Section 5.04; or
(iv) at any time after the expiration of the Warrant Negotiation Period, if the Company fails, by the expiration of the Warrant Negotiation Period, to deliver to Parent fully executed versions of the Warrant Amendments with respect to all Company Warrants (other than the holders of the BioPharmX November 2016 Warrants);
(d) by the Company:
(i) prior to obtaining the Required Stockholder Approval, in order to accept a Superior Proposal and enter into a binding and definitive written Alternative Acquisition Agreement with respect to such Superior Proposal, pursuant to Section 5.04(e); provided that (A) the Company has complied in all material respects with its covenants and agreements under Section 5.04, (B) the Company pays the Termination Fee to Parent in accordance with Section 9.02(b)(iv) and (C) immediately following (and, for the avoidance of doubt, in no event prior to) such termination, the Company enters into such binding and definitive written Alternative Acquisition Agreement with respect to such Superior Proposal; or
(ii) if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement set forth in this Agreement, which breach or failure to perform would cause any of the conditions set forth in Section 8.01 or Section 8.03, as applicable, not to be satisfied, and such breach or failure is incapable of being cured by the End Date or, if curable by the End Date, is not cured by the Company within the earlier of (A) 30 days of receipt by the Company of written notice of such breach or failure or (B) three Business Days prior to the End Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.01(d)(ii) if the Company is then in breach in any material breach respect of any of its representations, warranties, covenants or agreements contained set forth in this Agreement;
(e) by Parent if there shall have been a breach . Table 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 Contents 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 (Timber Pharmaceuticals, Inc.), Merger Agreement (Timber Pharmaceuticals, 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 adoption thereof any approval of this Agreement by the Stockholders:shareholders 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 September 30, 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; or
(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 Shareholder Meeting (including any of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.8adjournment or postponement thereof), the Company Shareholder Approval shall not have been obtained;
(c) by Parent if the Merger shall not have been consummated on or before September 15Parent, 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;if:
(di) 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 a Company Adverse Recommendation Change shall have occurred, (B) the Company Termination Dateshall have entered into, or publicly announced its intention to enter into, a definitive agreement or an agreement in principle with respect to a Superior Proposal; provided that or (C) the Company shall not have has materially breached any paragraph of Section 6.04 (including, without limitation, the right to terminate this Company, approving, recommending or entering into any actual or proposed Acquisition Agreement pursuant to this ) or Section 8.1(d) if the Company is then in material breach of any of its covenants or agreements contained in this Agreement6.02;
(eii) by Parent if there shall have been a breach or inaccuracy of any representation, warranty, representation or warranty or breach of or failure to perform any covenant or agreement on the part of the Company contained set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 9.02(a) or 9.02(c) not to be satisfied, and such condition is incapable of being satisfied by the End Date; 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 (including, without limitation, the provisions of Section 6.04(g)), to enter into a written agreement concerning a Superior Proposal; provided that the Company shall have paid any amounts due pursuant to Section 11.04 in accordance with the terms and at the times specified therein; or
(ii) a breach or inaccuracy of any representation or warranty or breach of 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 subsection (aSection 9.03(a) or (b) not to be satisfied, and such condition is incapable of Section 7.2 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 the Company and (B) the Parent Termination End Date; provided that Parent shall not have the right . 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 (Pw Eagle Inc), Merger Agreement (Pw Eagle 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 of Parent the Investor and the Company;
(b) by Parent the Company or the Company if any court of competent jurisdiction or Investor, upon written notice to the other Governmental Entity having jurisdiction over party, in 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, event that the right to terminate this Agreement pursuant to this Section 8.1(b) shall Closing does 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 occur on or before September 15, 2008 the Outside Date (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”as hereinafter defined); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c5.1(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 shall have been the cause of, or shall have resulted in, the failure of the Effective Time Closing to occur on or before prior to such date;
(c) by the Parent Termination Date Company or the Company Termination DateInvestor, as applicableupon written notice to the other party, 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 the Company or the Investor, upon written notice to the other party, if the Company or the Investor or any of their respective 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;
(e) by the Investor, if the Investor or any of its Affiliates receives written notice from or is otherwise advised by a Governmental Entity that it will not grant any Required Approval with respect to the Investor on the terms contemplated by this Agreement without imposing any Burdensome Condition;
(f) by the Company, if the Company is not 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 made by the part of Parent or Merger Sub contained Investor in this Agreement Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in subsection (aSection 1.2(c)(3)(i) or (bii) of Section 7.3 would not be satisfied and, in either such case, and such breach or condition is not curable or shall or, if curable, is not have been cured prior within thirty (30) days after written notice thereof is given by the Company to the earlier of Investor; or
(Ag) ten (10) Business Days following written notice of such breach to Parent and (B) 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) Investor, if the Company Investor is then not 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 in this Agreement Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that any condition set forth in subsection (aSection 1.2(c)(2)(i) or (bii) of Section 7.2 would not be satisfied and, in either such case, and such breach or condition is not curable or shall or, if curable, is not have been cured prior within thirty (30) days after written notice thereof is given by the Investor 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 ParentCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (FJ Capital Management LLC), Stock Purchase Agreement (Centrue Financial Corp)
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 contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding adoption thereof whether prior to or after any approval by the Stockholdersstockholders of the Company:
(a) by mutual written consent of the Boards of Directors of Parent and the Company;
(b) by Parent or the Company if (i) neither Parent nor any court subsidiary of competent jurisdiction or other Governmental Entity having jurisdiction over the Company Parent shall have issued a final order, decree or ruling or taken accepted for payment any other final action restraining, enjoining or otherwise prohibiting Shares pursuant to the Merger Offer by the sixtieth day following commencement of the Offer and such orderfailure is not in breach of the Offer or this Agreement, decree, ruling or other action is or shall have become final and nonappealable(ii) Parent has properly terminated the Offer in accordance with its terms; provided, however, provided that the right to Parent may not 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;
(cA) 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 Parent or Merger Sub 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 been the cause of, or resulted in, the failure circumstances described in clause (i), or (B) in the case of clause (ii), Parent or Merger Sub has not exercised such right by the Effective Time to occur close of business on or before the fifth business day following the termination of the Offer in accordance with its terms;
(c) by Parent Termination Date or and Merger Sub prior to the purchase of Shares pursuant to the Offer if there shall have been any material breach of a material obligation of the Company Termination Date, as applicablehereunder and such breach shall not have been remedied within five days after receipt by the Company of notice in writing from Parent or Merger Sub specifying such breach and requesting that it be remedied;
(d) by the Company prior to the purchase of Shares pursuant to the Offer, if there shall have been a any material breach of any representation, warranty, covenant or agreement on the part a material obligation 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, hereunder and 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 not 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 remedied within five days after receipt by Parent or Merger Sub is then Sub, as the case may be, of notice 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 writing from the Company Requisite Vote is obtained specifying such breach and a copy of the written consent is delivered to Parent.requesting that it be remedied;
Appears in 2 contracts
Sources: Merger Agreement (New Image Industries Inc), Merger Agreement (New Image Industries 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 other Law 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, Law 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 December 31, 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 to terminate if any action Party whose material breach of such party or any provision 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) 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) Business Days following written days after such notice of such breach to Parent and is given or (Bii) the Company Termination DateDrop Dead Date or, if capable of being cured by such earlier date, is not cured by the Parent Parties 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)(ii) 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 (provided, however, that the Company Requisite Vote Company’s right to terminate this Agreement pursuant to this Section 9.1(g)(i) shall expire if and when the Parent Stockholder Approval is obtained and obtained), or (ii) upon a copy Willful Breach of Section 7.4 by Parent (it being understood that nothing in this Section 9.1(g)(ii) 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 (Extra Space Storage Inc.), Merger Agreement (Life Storage Lp)
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 whether before or after stockholder adoption thereof by the Stockholdersof this Agreement:
(a) by By the mutual written consent of Parent the Buyer and the CompanyCompany in a written instrument;
(b) by Parent By either the Company or the Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over Buyer upon notice to 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 ordershall not have been consummated on or before 11:59 p.m., decreeCentral Time, ruling or other action is or shall have become final and nonappealableon February 12, 2021 (the “Termination Date”); provided, however, provided that the right to terminate this Agreement pursuant to this Section 8.1(b7.1(b)(i) shall not be available to the a 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 material obligation under this Agreement required to be performed at or prior to the Effective Time other material breach of this Agreement has been the 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 Entity shall have issued a statute, rule, order, decree or regulation or taken any other action (which statute, rule, order, decree, regulation or other action the parties hereto shall have used their commercially reasonable efforts to lift), in each case permanently restraining, enjoining or otherwise prohibiting consummation of the Merger or making the Merger illegal and such statute, rule, order, decree, regulation or other action shall have become final and not-appealable (provided that the terminating party is not then in breach of Section 5.5);
(iii) the stockholders of the Company fail to adopt this Agreement by the Company if Required Vote at the Company Special Meeting (including any postponement or adjournment thereof);
(iv) there shall have been a breach of or any inaccuracy in any of the representations or warranties set forth in this Agreement on the part of the other party, which breach is not cured within 30 days following receipt by the breaching party of notice of such breach from the terminating party, or which breach, by its nature, cannot be cured prior to the Closing (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 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 neither 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(d7.1(b)(iv) if unless the Company is then in material breach of any 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 6.3(a) (in the case of its covenants a breach of representation or agreements contained warranty by the Company) or Section 6.2(a) (in this Agreement;the case of a breach of representation or warranty by the Buyer); or
(ev) by Parent if there shall have been a material breach of any of the covenants or agreements set forth in this Agreement on the part of the other party, which breach shall not have been cured within 30 days following receipt by the breaching party of notice of such breach from the terminating party, or which breach, by its nature, cannot be cured prior to the Closing (provided 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 neither 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(e7.1(b)(v) if Parent or Merger Sub is then in material unless the breach of any of its such covenants or agreements, together with all other such breaches, would entitle the party to which such covenants or agreements contained are being made not to consummate the transactions contemplated by this Agreement under Section 6.3(b) (in this Agreementthe case of a breach of covenants or agreements by the Company) or Section 6.2(b) (in the case of a breach of covenants or agreements by the Buyer);
(c) By the Buyer, upon notice to the Company prior to, but not after, the time the Company Required Vote is obtained, if:
(i) the Company, or the Company Board, as the case may be, shall have (A) entered into any agreement with respect to any Acquisition Proposal other than the Merger or an Acceptable Confidentiality Agreement as permitted by Section 5.3; (B) approved or recommended, or, in the case of a committee, proposed to the Company Board to approve or recommend, any Acquisition Proposal other than the Merger; or (C) resolved to do any of the foregoing; or
(fii) by Parent an Adverse Recommendation Change shall have occurred or the Company Board or any committee thereof shall have resolved to make an Adverse Recommendation Change.
(d) By the Company, at any time prior to obtaining the date and time Company Required Vote, to enter into a definitive agreement with respect to a Superior Proposal; provided, however, that the Company Requisite Vote is obtained and a copy of shall concurrently pay to the written consent is delivered Buyer the Termination Fee pursuant to ParentSection 8.1(b).
Appears in 2 contracts
Sources: Merger Agreement (Montage Resources Corp), Merger Agreement (Southwestern Energy Co)