Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by applicable law) only: (a) by mutual written consent of the parties; (b) by either Parent or the 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
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 may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date:
(a) by mutual written consent of the partiesSeller and PSC;
(b) by either Parent PSC or the Company:Seller, if any state or federal law, order, rule or regulation is adopted or issued, which has the effect, as supported by the written opinion of outside counsel for such Party, of prohibiting the Closing, or by PSC or the Seller, if any court of competent jurisdiction in the United States or any state shall have issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and, in either case, if such order, rule, regulation, judgment or decree shall have become final and nonappealable;
(ic) by PSC or the Seller, by written notice to the other Party, if the purchase of the Shares pursuant to the Offer Closing Date shall not have occurred on or prior to the close of business on April 30before December 31, 2005 2003 (the “Outside "Termination Date“"); provided, however, that the right to terminate the Agreement under this Agreement pursuant to this paragraph (b)(i) Section 9.1 shall not be available to any party Party whose failure (or whose affiliate's failure) to perform fulfill any of its obligations obligation under this Agreement has been shall have proximately caused the cause of, failure of the Closing Date to occur on or resulted in, such purchase not occurring before such date;
(iid) by PSC, by written notice to the Seller, if any Governmental Authority there shall have issued an orderbeen any breach or breaches of any representations or warranties, decree or ruling any breach or taken breaches of any other action permanently enjoining, restraining covenants 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties agreements of the other party contained Seller or DQE hereunder, which breach or breaches would, taken together, result in this Agreementa material adverse effect on the business, disregarding all qualifications and exceptions contained therein relating to materiality assets, financial condition or Material Adverse Effect or any similar standard or qualification (except for results of operations of the representations and warranties contained in Section 4.6(i)Company totaling, 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$15,000,000 or more except for those breaches resulting from (i) any change in law, howeverrule, if such failure or regulation of any Governmental Authority that applies generally to be true similarly situated Persons, (ii) general changes in the industries in which the Company operates its assets or conducts its businesses or (iii) any Permitted Financial Impact, and correct is curable on or before the Outside Date, then only upon the failure of the other party to cure such breach or breaches shall not have been remedied within 20 thirty (30) calendar days after receipt by the Seller of written notice thereof in writing from PSC, specifying the nature of such breach or if breaches and requesting that it or they be remedied, or PSC shall not have received adequate assurance of a cure of such failure could not reasonably be expected to be cured breach or breaches within such 20 thirty (30) 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 Dateday period;
(ive) by the Seller, by written notice to PSC, if the other party there shall have breached been any breach or failed to perform in breaches of any material respect representations or warranties, or any breach or breaches of its any covenants or other agreements contained in this Agreement; providedof PSC or Acquisition hereunder, however, if a which breach or failure is curable breaches would, taken together, result in a material adverse effect on the business, assets, financial condition or before the Outside Date, then only upon the failure results of operations of the other party Company totaling, in the aggregate, $15,000,000 or more except for those breaches resulting from (i) any change in law, rule, or regulation of any Governmental Authority that applies generally to cure similarly situated Persons, (ii) general changes in the industries in which the Company operates its assets or conducts its businesses or (iii) any events or circumstances that are taken into consideration in adjusting the Purchase Price, and such breach or breaches shall not have been remedied within 20 thirty (30) calendar days after receipt by PSC of written notice thereof or if in writing from the Seller, specifying the nature of such breach or failure could breaches and requesting that it or they be remedied, or the Seller shall not reasonably be expected to be cured have received adequate assurance of a cure of such breach or breaches within such 20 thirty (30) 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.day period; or
(cf) by Parent PSC if before the purchase Seller Disclosure Schedule is updated so as to disclose additional liabilities or obligations of the Shares pursuant to Company that, in the Offeraggregate, exceed $15,000,000 (except for those liabilities or obligations resulting from (i) the board any change in law, rule, or regulation of trustees of the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse Governmental Authority that applies generally to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreementsimilarly situated Persons, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) general changes in the board of trustees of industries in which the Company operates its assets or conducts its businesses or (iii) any committee thereof shall have resolved to take any of events or circumstances that are taken into consideration in adjusting the foregoing actions; orPurchase Price).
Appears in 3 contracts
Sources: Purchase Agreement (Dqe Inc), Purchase Agreement (Duquesne Light Holdings Inc), Purchase Agreement (Philadelphia Suburban Corp)
Termination. This Agreement may be terminated and prior to the Merger may be abandoned at any time before the First Effective Time, Time (whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant the receipt of the Required Company Stockholder Vote or the Required Parent Stockholder Vote, except to the Offer or after the Company Shareholder Approval (if required by applicable lawextent otherwise provided below) onlyas follows:
(a) by mutual written consent of Parent, Merger Subs and the partiesCompany;
(b) by either Parent or the Company:
(i) Company if the purchase of the Shares pursuant to the Offer Merger shall not have occurred on or prior to been consummated by the close of business on April 30, 2005 (the “Outside End Date“); provided, however, that the right to terminate this Agreement pursuant to under this paragraph Section 9.1(b) (b)(iTermination) shall not be available to any party whose the Company, on the one hand, or to Parent, on the other hand, if such Party’s action or failure to perform any of its obligations under this Agreement act has been a principal cause of the cause of, failure of the Merger to occur on or resulted in, before the End Date and such purchase not occurring before such dateaction or failure to act constitutes a breach of this Agreement;
(iic) by either Parent or the Company if any a court of competent jurisdiction or other Governmental Authority Body of competent jurisdiction shall have issued an a final and non-appealable order, decree or ruling or taken any other action ruling, in each case, having the effect of permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealableMerger; provided, however, that the right to terminate this Agreement pursuant to under this paragraph Section 9.1(c) (b)(iiTermination) shall not be available to any party whose the Company, on the one hand, or to Parent, on the other hand, if 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 comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authorityuse commercially reasonable efforts constitutes a breach of this Agreement;
(iiid) by Parent, 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 Company shall have breached or failed to perform in any material respect any of its covenants representations, warranties, covenants, obligations or other 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 pursuant to 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 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 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 failure is curable on or before the Outside Dateresulted in, then only upon the failure of to obtain the other party to cure such breach within 20 calendar days after receipt of written notice thereof Requisite Parent Stockholder Approval or Requisite Company Stockholder Approval; and
(g) by Parent, if such breach the Company Board (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 Datea committee thereof) makes a Company Adverse Change Recommendation.
(ch) by Parent if before the purchase of the Shares Company as described in Section 5.2(b)(i). The Party desiring to terminate this Agreement pursuant to the OfferSection 9.1 (Termination), (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 or give the other transactions contemplated by this AgreementParty written a notice of such termination, (y) approved or recommended any Takeover Proposal or (z) failed specifying the provisions hereof pursuant to reaffirm its recommendation of the Merger which such termination is made and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orbasis therefor described in reasonable 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 may be abandoned Registered Mark License Agreement made between the Corporation and the LEDC dated January 28, 1999, shall, at any time before the Effective TimeCorporation’s option, whether before or after Subsidiary (with the exception of paragraphs (d), (e) and (f) below in which case this Agreement shall have accepted for payment terminate on the date determined in accordance with paragraphs (d), (e) and paid for all Shares validly tendered and not withdrawn pursuant (f) as applicable) terminate prior to the Offer or after the Company Shareholder Approval (if required by applicable law) only:
(a) by mutual written consent of the parties;
(b) by either Parent or the Company:
(i) if the purchase of the Shares pursuant to the Offer shall not have occurred on June 30, 2015 or prior to the close expiration of any renewal of this Agreement, upon the happening of one of the following events, whichever occurs first:
a) an event of default specified in subclause 27 (a), (b), (c) or (d);
b) an event of default specified in subclause 27 (e) that is not remedied within ten business days of receipt by the LEDC of notice of default, or a plan satisfactory to the Corporation to remedy such an event of default is not implemented within such period and fully and diligently carried out thereafter as provided in subclause 28 (b);
c) the enabling statutory authority or the required approvals under which the Corporation has entered into this Agreement being repealed or rescinded so as to substantially limit or deprive the Corporation of the authority to confer any of the rights or assume any of the obligations granted or assumed hereunder, and the Corporation being unable with reasonable diligence within a period of two (2) years to obtain private legislation to remedy the deficiency of authority;
d) notice of termination being given to the Corporation by the LEDC stipulating the date of termination, (which date shall be no less than ten days from the date of such notice) on April 30the ground that, 2005 (despite negotiations in good faith between and reasonable efforts by the “Outside Date“); provided, however, that LEDC and the right Corporation to settle the amount of the Fee or the amount appropriated by the Corporation in its sole discretion for the LEDC is insufficient to enable the LEDC in any substantial way to perform its responsibilities under this Agreement;
e) the Corporation giving the LEDC twelve months’ written notice of its intent to terminate this Agreement pursuant Agreement; or
f) the Corporation and the LEDC agreeing in writing at any time to this paragraph (b)(i) shall not be available to any party whose failure to perform any the termination of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such date;
(ii) if any Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 3 contracts
Sources: Purchase of Services Agreement, Purchase of Services Agreement, Purchase of Services Agreement
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(a) by mutual the written consent of the partiesParties;
(b) by either Parent or any Party upon written notice to the Company:
(i) if other Parties in the purchase event that there shall be any Law that makes the consummation 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 transactions contemplated by 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 ofillegal or otherwise prohibited, or resulted in, such purchase not occurring before such date;
(ii) if any Governmental Authority Body shall have issued an order, decree or ruling or taken any other action permanently enjoining, order restraining or otherwise prohibiting enjoining the transactions contemplated by this Agreement and such order, decree or ruling or other action order shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authoritynon-appealable;
(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 written notice from the purchase of the Shares pursuant Buyer to the OfferSeller (provided that the Buyer is not then in material breach of any representation, warranty, covenant, or agreement contained in this Agreement), if there has been a breach of any representation, warranty, covenant, or agreement by the Seller, or any such representation or warranty shall become untrue after the date hereof, such that the conditions in Section 6.02(a) and Section 6.02(b) would not be satisfied and such breach is not curable or, if curable, is not cured within the earlier of (i) the board of trustees of the Company or any committee thereof shall have fifteen (x15) withdrawn or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after written notice thereof is given by the public announcement of a Takeover Proposal (including Buyer to the filing of a Schedule 13D with the SEC) or Seller and (ii) the board Expiration Date;
(d) by written notice from the Seller to the Buyer (provided that the Seller is not then in material breach of trustees any representation, warranty, covenant, or agreement contained in this Agreement), if there has been a breach of any representation, warranty, covenant, or agreement by the Company Buyer, or any committee such representation or warranty shall become untrue after the date hereof, such that the conditions in Section 6.03(a) and Section 6.03(b) would not be satisfied and such breach is not curable or, if curable, is not cured within the earlier of (i) fifteen (15) days after written notice thereof is given by the Seller to the Buyer and (ii) the Expiration Date; or
(e) by any Party upon written notice to the other Parties if the Closing fails to occur by August 31, 2021 (the “Expiration Date”), for any reason whatsoever, unless such failure shall have resolved be due to take the failure of such Party to perform or comply with any of the foregoing actions; orit covenants or agreements hereunder.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Winc, Inc.), Asset Purchase Agreement (Winc, Inc.), Asset Purchase Agreement (Winc, Inc.)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, in the case of Buyer, or prior to the purchase of DOCP Shares under the Offer, in the case of DOCP, whether before or after Subsidiary shall have accepted for payment approval of this Agreement and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after Merger by the Company Shareholder Approval (if required by applicable law) onlyshareholders of DOCP:
(a) by mutual written consent of the partiesDOCP and Buyer;
(b) by either Parent or the Company:
(i) by Buyer upon a breach of any covenant or agreement on the part of DOCP set forth in this Agreement which has not been cured, or if any representation or warranty of DOCP shall have become untrue, in either case, such that such breach or untruth is incapable of being cured within 30 days after the giving of written notice to DOCP of such breach or untruth, provided that such breach or untruth is material and that Buyer is not then in material breach of this Agreement or (ii) by DOCP in the event of a breach of any representation, warranty, agreement or covenant of Buyer set forth in this Agreement, in any case, such that such breach has not been cured within 30 days after the giving of written notice to Buyer of such breach or untruth and will prevent consummation of the Merger, provided that DOCP is not then in material breach of this Agreement;
(c) by either Buyer or DOCP, if any permanent injunction or action by any Governmental Entity preventing the consummation of the Merger shall have become final and nonappealable, provided that the party seeking to terminate this Agreement pursuant to this clause (c) shall have used all reasonable efforts to prevent the entry of and to remove such permanent injunction or action;
(d) by either Buyer or DOCP, if the purchase of the Shares pursuant to the Offer Merger shall not have occurred on or prior to the close of business on April been consummated before June 30, 2005 (the “Outside Date“); provided1998, however, provided that the right to terminate this Agreement pursuant to this paragraph clause (b)(id) shall not be available to any party whose failure to perform any of its obligations under this Agreement has been hereunder results in the cause of, or resulted in, such purchase not occurring before failure of the Merger to be consummated by such date;
(e) by Buyer (i) if the DOCP Board or any committee thereof shall withdraw, modify or change its recommendation so that it is not in favor of this Agreement, the Offer or the Merger (or make any recommendation in favor of an Alternative Transaction) or shall have resolved to do any of the foregoing or (ii) if DOCP shall take any Governmental Authority action that would be proscribed by Section 6.2 of this Agreement but for the exceptions contained in the provisions thereof; or
(f) by Buyer if the DOCP Board or any committee thereof shall have issued approved or entered into an orderagreement respecting a Superior Proposal or recommended or resolved to recommend to its shareholders a Superior Proposal, decree or ruling by DOCP in connection with the DOCP Board or taken any other action permanently enjoiningcommittee thereof approving or entering into an agreement respecting a Superior Proposal, restraining or otherwise prohibiting provided that, in the transactions contemplated case of any such termination by DOCP, simultaneously with such termination, DOCP complies with Section 8.5(b) of this Agreement and such order, decree or ruling or other action shall have become final prior thereto has complied with Section 6.2 of this Agreement and nonappealable; provided, howeverfurther, that the party seeking to terminate under this clause (f) is not then in material breach of this Agreement. The right of any party hereto to terminate this Agreement pursuant to this paragraph (b)(ii) Section shall not be available to remain operative and in full force and effect regardless of any investigation made by or on behalf of any party whose failure hereto, any person controlling any such party, or any of their respective officers or directors, whether prior to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if after the representations and warranties execution 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Delaware Otsego Corp), Merger Agreement (Norfolk Southern Corp), Merger Agreement (Delaware Otsego Corp)
Termination. 8.01 This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, 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 applicable law) onlyterminate:
(a) at any time prior to the First Option Deadline, by mutual written consent the Optionee giving notice of termination to the parties;Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by either Parent the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the CompanyOptionor may terminate this Agreement, but only if:
(ia) if it shall have first given to the purchase Optionee a notice of default containing particulars of the Shares pursuant payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Offer shall not have occurred on or Optionor prior to the close commencement of business on April 30, 2005 Commercial Production (the “Outside Commencement Date“”); provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(i) Second Option shall not automatically lapse and 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 Governmental Authority shall have issued an order, decree no further force 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties effect as 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 first Business Day immediately following 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 Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (c3) by Parent if before months following termination for the purchase purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Shares pursuant Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the Offermaximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(ib) ensure that the board Optionor is provided with copies of trustees all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse Optionee on the Property which had theretofore not been delivered to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orOptionor.
Appears in 3 contracts
Sources: Option Agreement (Foremost Lithium Resources & Technology Ltd.), Option Agreement (Foremost Lithium Resources & Technology Ltd.), Option Agreement (Foremost Lithium Resources & Technology Ltd.)
Termination. This Agreement may be terminated terminated, and the Merger may be abandoned abandoned, at any time before prior to the Effective Time, 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 applicable law) onlyby:
(ai) by mutual written consent of the partiesCompany and Acquiror;
(bii) either party, by either Parent or written notice to the Company:
(i) other party, if the purchase of the Shares pursuant to the Offer Merger shall not have occurred on or prior to the close of business on April 30been consummated by October 15, 2005 (the “Outside Date“)2001; provided, however, that the right to terminate this Agreement pursuant to under this paragraph clause (b)(iii) shall not be available to any party whose failure to perform any of its obligations obligation or to comply with any material agreement or covenant under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of the Effective Time to occur on or before such that date;
(iiiii) Acquiror, by written notice to the Company, if prior to the Stockholders Meeting, the Board or the Special Committee (A) shall withdraw or modify in any manner adverse to Acquiror its approval or recommendation of this Agreement or the Merger, (B) shall approve or recommend any Acquisition Proposal by a party other than Acquiror, or (C) shall resolve to take any of the actions specified in clause (A) or (B);
(iv) the Company, by written notice to Acquiror, if the Board or the Special Committee determines that an Acquisition Proposal constitutes a Superior Acquisition Proposal and, in its good faith judgment, after consultation with counsel, that failing to terminate this Agreement would be inconsistent with the Board's or the Special Committee's duties under the MGCL, provided that the Company has complied in all material respects with all the provisions of Section 4.1, including the notice provisions therein;
(v) either party, by written notice to the other party, if at any time (A) any of the representations or warranties of the other party 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 (B) the other party shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of the other party to be performed or complied with by it under this Agreement and such untruth, incorrectness or failure cannot be or has not been cured within 20 business days after the giving of written notice to the other party; provided, however, that the right to terminate this Agreement under clause (A) shall not be available to Acquiror to the extent based on any representation or warranty of the Company that a Continuing Stockholder actually knew was not true or correct in a material respect when made, and the right to terminate this Agreement under clause (B) shall not be available to Acquiror to the extent based on a failure to perform any obligation or to comply with any agreement or covenant caused by action taken by a Continuing Stockholder.
(vi) Acquiror, by written notice to the Company, if after the date hereof there shall have occurred a Company Material Adverse Effect;
(vii) the Company, by written notice to Acquiror, if the Board or Special Committee, in its good faith exercise of its business judgment (based on the advice of counsel), has determined that the Board continuing to recommend to the holders of Common Shares the approval of the Merger would be reasonably likely to be a breach of the duties of the Board under the MGCL;
(viii) the Company (unless the Company is in breach of its obligations under Section 5.1) or Acquiror, by written notice to the other, if upon a vote at the Stockholders Meeting, the Stockholder Approval shall not have been obtained;
(ix) either party, by written notice to the other party, if any Governmental Authority court of competent jurisdiction or other governmental entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement Merger and such order, decree or decree, ruling or other action shall have become final and nonappealable; providedor
(x) Acquiror, howeverby written notice to the Company, if the Company shall have failed to hold the Stockholders Meeting by September 15, 2001, and either of the following shall have occurred prior to such date: (A) any corporation, partnership, person, other entity or "group" (as referred to in Section 13(d)(3) of the Exchange Act) other than Acquiror or any of its affiliates (collectively, "Third Persons") shall have become the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 15% of the outstanding Common Shares; or (B) any Third Person shall have made, proposed, communicated or disclosed in a manner which is or becomes known: (i) by stockholders beneficially owning 5% or more of the outstanding Common Shares or (ii) by any director or officer of the Company, an intention to make a bona fide Acquisition Proposal, unless in the case of the condition in clause (B), the Company is able to sustain the burden of showing that the right failure to hold the Stockholders Meeting was caused primarily by factors other than knowledge of such intention to make an Acquisition Proposal. Any action to be taken to terminate this Agreement under this Section shall be taken by, or pursuant to this paragraph authority granted by, the Board (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action as recommended 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SECSpecial Committee) or (ii) Acquiror's members, as the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orcase may be.
Appears in 3 contracts
Sources: Merger Agreement (G & L Tender LLC), Merger Agreement (G&l Realty Corp), Merger Agreement (Gottlieb Daniel M)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing only as follows:
(a) by mutual written consent Buyer if, between the date hereof and the time scheduled for the Closing: (i) an event or condition occurs that has resulted in or that is reasonably likely to result in a Material Adverse Effect on the Business or the Acquired Assets; (ii) any representation or warranty of Sellers set forth in this Agreement shall not have been true and correct in all respects when made or ceases to be true and correct in all respects at any time subsequent to the parties;date hereof; (iii) Sellers shall not have complied in all respects with any covenant or agreement to be complied with by it prior to the Closing Date; or (iv) Sellers makes a general assignment for the benefit of creditors, or any proceeding shall be instituted by or against Sellers seeking to adjudicate Sellers a bankrupt or insolvent, or seeking liquidation, winding up or reorganization, arrangement, adjustment, protection, relief or composition of its debts under any law relating to bankruptcy, insolvency or reorganization or a receiver, trustee, liquidator, sequestrator, guardian or similar person is appointed for Sellers or any of its assets; or
(b) by either Parent Buyer or the Company:
(i) Sellers if the purchase of the Shares pursuant to the Offer each Closing shall not have occurred on or prior to the close of business on April June 30, 2005 (2024; provided, however, that the “Outside Date“)parties may mutually agree to extend each Closing to a later date; and further provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(i) Section shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has shall have been the cause of, or shall have resulted in, such purchase not occurring before the failure of each Closing to occur on or prior to such date;; or
(iic) if by Buyer or Sellers in the event that any Governmental Authority governmental authority shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree or decree, ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;or
(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.
(cd) by Parent if before the purchase mutual written consent of each of B▇▇▇▇ and S▇▇▇▇▇▇. Promptly upon any such termination, the Shares pursuant Escrowed Payment shall be refunded 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orBuyer.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Yoshiharu Global Co.), Asset Purchase Agreement (Yoshiharu Global Co.), Asset Purchase Agreement (Yoshiharu Global Co.)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(a) by mutual written consent either Oyster or Pearl if, between the date hereof and the Closing: (i) an event or condition occurs that has resulted in a Material Adverse Effect, (ii) any representations and warranties of Discovery contained in this Agreement (A) that are not qualified by “materiality” or “Material Adverse Effect” shall not have been true and correct in all material respects when made and the partiesresult thereof is reasonably likely to cause a Material Adverse Effect or (B) that are qualified by “materiality” or “Material Adverse Effect” shall not have been true and correct when made and the result thereof is reasonably likely to cause a Material Adverse Effect, (iii) Discovery shall not have complied in all material respects with the covenants or agreements contained in this Agreement to be complied with by it and the result thereof is reasonably likely to cause a Material Adverse Effect, (iv) Discovery shall have failed to comply in any material respect with its covenants contained in Section 8.09, or (v) Discovery makes a general assignment for the benefit of creditors, or any proceeding shall be instituted by or against Discovery seeking to adjudicate it a bankrupt or insolvent, or seeking its liquidation, winding up or reorganization, or seeking any arrangement, adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization;
(b) by either Parent any of Discovery, Oyster or the Company:
(i) Pearl if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to the close of business on April 30by March 7, 2005 2009 (the “Outside Termination Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 13.01(b) shall not be available to any party Party whose failure to perform fulfill any of its obligations obligation under this Agreement has shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to the Termination Date, and provided further, that, if as of the Termination Date, Discovery has received and there is pending a Discovery Change of Control Proposal, the Termination Date shall be extended to the earlier of (i) sixty (60) days following the receipt by Discovery of such purchase not occurring before such dateDiscovery Change of Control Proposal or (ii) the occurrence of a Discovery Change of Control Triggering Event;
(iic) if by any of Discovery, Oyster or Pearl in the event that any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting or rendering illegal the transactions contemplated by this Agreement and such order, decree or decree, ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iiid) if the representations and warranties of the other party contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality by Oyster 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 Pearl upon the failure occurrence of the other party to cure such breach within 20 calendar days after receipt a Discovery Change 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 DateControl Triggering Event;
(ive) by Oyster or Pearl 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 representatives of the U.S. Department of the Treasury and/or any other party lead agency designated by the CFIUS for this transaction (at least one of whom serves at the rank of Deputy Assistant Secretary or higher), acting on behalf of the CFIUS, inform the Parties either that the CFIUS will refer the transaction to cure such breach within 20 calendar days after receipt the President of written notice thereof the United States for decision, or if such breach or failure could not reasonably that the CFIUS Clearance would be expected to conditioned upon Mitigation Agreements that would 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.inconsistent with Section 8.07(d); or
(cf) by Parent if before the purchase mutual written consent of the Shares pursuant to the OfferDiscovery, (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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger Oyster and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orPearl.
Appears in 3 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement (Advanced Micro Devices Inc), Master Transaction Agreement (Advanced Micro Devices Inc)
Termination. This Agreement may be terminated and the Merger Mergers and the other Transactions may be abandoned at any time before prior to the Company Merger Effective Time, whether (except as expressly set forth below) before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to the Offer Firefly Stockholder Approval or after the Company Shareholder Ohm Stockholder Approval (if required by applicable law) onlyhas been obtained:
(a) by mutual written consent of the partiesFirefly and Ohm;
(b) by either Parent Firefly or the CompanyOhm:
(i) if any Governmental Entity having jurisdiction over any Party shall have issued any order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the purchase consummation of any of the Shares pursuant Mergers and such order, decree, ruling or injunction or other action shall have become final and nonappealable, or if there shall be adopted any Law that permanently makes consummation of any of the Mergers illegal or otherwise permanently prohibited; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(i) shall not be available to any Party whose failure to fulfill any covenant or agreement under this Agreement has been the Offer primary cause of or resulted in the action or event described in this Section 8.1(b)(i) occurring;
(ii) if the Mergers shall not have occurred been consummated on or prior to the close of business before 5:00 p.m. Houston, Texas time, on April 30October 7, 2005 2022 (the “Outside Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.1(b)(ii) shall not be available to any party Party whose failure to perform fulfill any of its obligations covenant or agreement under this Agreement has been the primary cause of, of or resulted in, such purchase not occurring in the failure of the Mergers to occur on or before such date;
(iii) in the event of a breach by the other Party of any representation, warranty, covenant or other agreement contained in this Agreement which would give rise to the failure of a condition set forth in Section 7.2(a) or 7.2(b) or Section 7.3(a) or 7.3(b), as applicable, if it was continuing as of the Closing (and such breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured by the earlier of (i) thirty (30) days after the giving of written notice to the breaching Party of such breach and (ii) if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting two (2) Business Days prior to the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealableOutside Date) (a “Terminable Breach”); provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall terminating Party is not be available to then in Terminable Breach of any party whose failure to comply with Section 6.5 has caused representation, warranty, covenant or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party agreement 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 (A) the other party Firefly Stockholder Approval shall not have breached been obtained upon a vote held at a duly held Firefly Stockholders Meeting, or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement; provided, however, if (B) the Ohm Stockholder Approval shall not have been obtained upon 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.vote at a duly held Ohm Stockholders Meeting;
(c) by Parent Ohm, prior to, but not after, the time the Firefly Stockholder Approval is obtained, if before the purchase of the Shares pursuant to the Offer, (i) the board of trustees of the Company Firefly Board or any a committee thereof shall have effected a Firefly Change of Recommendation (x) withdrawn whether or modified in a manner adverse to Parent or Subsidiary its approval or recommendation not such Firefly Change of the Merger or the other transactions contemplated Recommendation is permitted by this Agreement); and
(d) by Firefly, (y) approved prior to, but not after, the time the Ohm Stockholder Approval is obtained, if the Ohm Board or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any effected an Ohm Change of the foregoing actions; orRecommendation (whether or not such Ohm Change of Recommendation is permitted by this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Oasis Petroleum Inc.), Merger Agreement (Whiting Petroleum Corp), Merger Agreement (Oasis Petroleum Inc.)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, 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 applicable law) onlytransactions contemplated hereby abandoned:
(a) by mutual written consent of the partiesCompany and OmniLit;
(b) by written notice by either Parent the Company or OmniLit if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which has become final and non-appealable and has the Company:effect of making consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger;
(ic) by written notice by either the Company or OmniLit if the purchase OmniLit Stockholder Approval shall not have been obtained by reason of the Shares pursuant failure to obtain the required vote at the OmniLit Stockholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;
(d) by the Company or OmniLit by written notice to the Offer other party if the consummation of the transactions contemplated by this Agreement shall not have occurred on or prior to before nine (9) months after the close date of business on April 30, 2005 this Agreement (the “Outside Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 10.1(d) shall not be available to any either party whose failure to perform that has materially breached any of its obligations representations, warranties, covenants or agreements under this Agreement and such material breach is the primary cause of or has been resulted in the cause of, failure of the Merger to be consummated on or resulted in, such purchase not occurring before such date;
(iie) by written notice to the Company from OmniLit if (i) there is any Governmental Authority shall have issued an orderbreach of any representation, decree warranty, covenant or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting agreement on the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties part of the other party contained Company set forth 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 such that the representations and warranties contained conditions specified in Section 4.6(i9.2(a), Section 9.2(b) or Section 9.2(d) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, other than with respect to Section 9.2(d) which cannot be cured, if such Terminating Company Breach is curable by the Company through the exercise of its reasonable best efforts, then, for which a period of up to 30 days (or such qualifiers shorter period of time that remains between the date OmniLit provides written notice of such breach and the Agreement End Date) after receipt by the Company of notice from OmniLit of such breach, but only as long as the Company continues to use its reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be disregarded)effective, and such termination shall become effective only if the Terminating Company Breach is 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 or the other transactions contemplated by this AgreementCure Period, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board Closing has not occurred on or before nine (9) months after the date of trustees of this Agreement (the “Agreement End Date”), unless OmniLit is in material breach hereof so as to prevent the conditions specified in Section 9.2(a) or Section 9.2(b) from being satisfied;
(f) by written notice to the Company from OmniLit if the Company Stockholder Approvals shall not have been obtained and delivered to OmniLit within five (5) Business Days after the Registration Statement has been declared effective by the SEC and delivered or otherwise made available to stockholders;
(g) by written notice to OmniLit from the Company if (i) there is any committee thereof breach of any representation, warranty, covenant or agreement on the part of OmniLit or Merger Sub set forth in this Agreement, such that the conditions specified in Section 9.3(a) and Section 9.3(b) would not be satisfied at the Closing (a “Terminating OmniLit Breach”), except that, if any such Terminating OmniLit Breach is curable by OmniLit through the exercise of its reasonable best efforts, then, for a period of up to 30 days (or such shorter period of time that remains between the date the Company provides written notice of such breach and the Agreement End Date) after receipt by OmniLit of notice from the Company of such breach, but only as long as OmniLit continues to exercise such reasonable best efforts to cure such Terminating OmniLit Breach (the “OmniLit Cure Period”), such termination shall have resolved not be effective, and such termination shall become effective only if the Terminating OmniLit Breach is not cured within the OmniLit Cure Period or (ii) the Closing has not occurred on or before the Agreement End Date, unless the Company is in material breach hereof so as to take any of prevent the foregoing actionsconditions specified in Section 9.2(a) or Section 9.2(b) from being satisfied; or
(h) by written notice to OmniLit from the Company following a Modification in Recommendation.
Appears in 3 contracts
Sources: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to notwithstanding adoption thereof by the Offer or after the Company Shareholder Approval (if required by applicable law) onlyStockholders:
(a) by mutual written consent of Parent and the partiesCompany;
(b) by either Parent or the 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) Company if any court of competent jurisdiction or other Governmental Authority Entity having jurisdiction over the Company shall have issued an a final order, decree or ruling or taken any other final action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Merger and such order, decree or 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 paragraph (b)(iiSection 8.1(b) shall not be available to the party seeking to terminate if such party or any party whose failure of its Subsidiaries has failed to take such actions with respect thereto as are required to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority6.8;
(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 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 purchase 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 Shares 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 OfferCompany 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, (i) warranty, covenant or agreement on the board of trustees part of the Company or any committee thereof shall have (x) withdrawn or modified contained in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal such that any condition set forth in subsection (including the filing of a Schedule 13D with the SECa) or (iib) 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 board 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 trustees 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 Company or any committee thereof shall have resolved written consent is delivered to take any of the foregoing actions; orParent.
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 Mergers and the other transactions contemplated hereby may be abandoned at any time before prior to the First Effective Time, whether (except as expressly set forth below) before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to the Offer Acuren Stockholder Approval or after the Company Shareholder NV5 Stockholder Approval (if required by applicable law) onlyhas been obtained:
(a) by mutual written consent of the parties;Acuren and NV5;
(b) by either Parent Acuren or NV5 upon written notice to the Companyother Party:
(i) if any Governmental Authority having jurisdiction over any Party shall have issued any order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the purchase consummation of any of the Shares pursuant to Mergers and such order, decree, ruling or injunction or other action shall have become final and non-appealable, or if there shall be adopted any Law that permanently makes consummation of any of the Offer shall not have occurred on Mergers illegal or prior to the close of business on April 30, 2005 (the “Outside Date“); otherwise permanently prohibited; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 7.1(b)(i) shall not be available to any party Party whose failure to perform fulfill any of its obligations covenant or agreement under this Agreement has been the primary cause of, of or resulted in, such purchase not occurring before such date;in the action or event described in this Section 7.1(b)(i) occurring;
(ii) if any Governmental Authority the Mergers shall not have been consummated on or before 5:00 p.m. on October 3, 2025 (the “Outside Date”) ; provided, that if all of the conditions to Closing, other than the conditions set forth in Section 6.1(e), shall have issued an orderbeen satisfied or waived or shall be capable of being satisfied at such time (other than those conditions that by their nature are to be satisfied at the Closing), decree or ruling or taken any other action permanently enjoiningthe Outside Date shall automatically be extended to the date that is November 3, restraining or otherwise prohibiting 2025, which date shall thereafter be deemed to be the transactions contemplated by this Agreement Outside Date; and such order, decree or ruling or other action shall have become final and nonappealable; providedprovided further, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 7.1(b)(ii) shall not be available to any party Party whose failure to comply with Section 6.5 fulfill any covenant or agreement under this Agreement has caused been the primary cause of or primarily resulted in the failure of the Mergers to occur on or before such action by such Governmental Authority;date;
(iii) in the event of a breach by the other Party of any representation, warranty, covenant or other agreement contained in this Agreement which would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) or Section 6.3(a) or Section 6.3(b), as applicable, if the representations and warranties it was continuing as of the Closing (and such breach is either not curable prior to the Outside Date or, if curable prior to the Outside Date, has not been cured by the breaching Party by the earlier of (A) thirty (30) days after the giving of written notice to the breaching Party of such breach and (B) two (2) Business Days prior to the Outside Date) (a “Terminable Breach”); provided, however, that the terminating Party is not then in material breach of any representation, warranty, covenant or other party agreement 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 (A) the other party Acuren Stockholder Approval shall not have breached been obtained upon a vote held at a duly held and concluded Acuren Stockholders Meeting (including any adjournments or failed to perform in postponements thereof) or (B) the NV5 Stockholder Approval shall not have been obtained upon a vote at a duly held and concluded NV5 Stockholders Meeting (including any material respect any of its covenants adjournments 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.postponements thereof);
(c) by Parent NV5, prior to, but not after, the time the Acuren Stockholder Approval is obtained, if before the purchase Acuren Board (or a committee thereof) shall have effected an Acuren Change of Recommendation (whether or not such Acuren Change of Recommendation is permitted by this Agreement);
(d) by Acuren, prior to, but not after, the Shares pursuant to time the OfferNV5 Stockholder Approval is obtained, if the NV5 Board (or a committee thereof) shall have effected a NV5 Change of Recommendation (whether or not such NV5 Change of Recommendation is permitted by this Agreement);
(e) by NV5, prior to, but not after, the time the NV5 Stockholder Approval is obtained, if (i) the board of trustees of the Company or any committee thereof shall have (x) withdrawn or modified in NV5 has received a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover NV5 Superior Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board NV5 Board has authorized NV5 to enter into a NV5 Alternative Acquisition Agreement to consummate the transaction contemplated by such NV5 Superior Proposal pursuant to Section 5.4(f)(v) and in compliance in all material respects with the provisions of trustees Section 5.4; provided that a termination pursuant to this Section 7.1(e) shall not be effective unless NV5 has paid, or has caused to be paid, to Acuren the Termination Fee prior to or concurrently with such termination in accordance with Section 7.3(g); or
(f) by NV5, if Acuren has not obtained the Debt Financing and consummated the Closing by the fifth (5th) Business Day following NV5’s confirmation in writing to Acuren that each of the Company conditions set forth in Section 6.1 and Section 6.2 have been satisfied or any committee thereof shall have resolved waived (other than those conditions that by their nature are to take any be satisfied at the Closing and that were capable of being satisfied if the foregoing actions; orClosing would occur).
Appears in 3 contracts
Sources: Merger Agreement (NV5 Global, Inc.), Merger Agreement (Acuren Corp), Merger Agreement (Acuren Corp)
Termination. This Agreement may be terminated with respect to any Purchase Commitment, and the Merger transactions contemplated by such Purchase Commitment may be abandoned abandoned, at any time before the Effective Time, 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 applicable law) onlyClosing Date with respect thereto:
(a) by mutual written consent of the partiesVMware and Dell Technologies;
(b) by either Parent VMware or the CompanyDell Technologies:
(i) if the purchase of the Shares pursuant to the Offer such Closing Date shall not have occurred on or prior to before the close of business on April 30, 2005 (the “applicable Closing Outside Date“); provided, however, that the right to terminate termination under this Agreement pursuant to this paragraph (b)(iSection 6.1(b)(i) shall not be available to any party Party whose failure to perform material breach of any of its obligations under representation, warranty or covenant in this Agreement has been the principal cause of, of the failure of Closing hereunder to occur on or resulted in, such purchase not occurring before such date;Closing Outside Date; or
(ii) if any Governmental Authority Entity of competent jurisdiction located in the United States or any Applicable Jurisdiction shall have (A) adopted, enacted, issued, entered, or promulgated, enforced or deemed applicable to this Agreement or any of the transactions contemplated hereby any Law that prohibits or makes permanently illegal the consummation of any of the transactions contemplated hereby or (B) issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement hereby, and such order, decree or decree, ruling or other action shall have become final and nonappealable; providedprovided that, however, that the right to terminate under this Agreement pursuant to this paragraph (b)(iiSection 6.1(b)(ii) shall not be available to any party Party whose failure to comply with Section 6.5 material breach of this Agreement has caused or primarily resulted in been the principal cause of such action by such Governmental Authorityaction;
(iiic) by VMware if the representations and warranties of the other party contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality Dell Technologies 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 Seller shall have breached or failed to perform in any material respect any of its respective representations, warranties, covenants or other agreements contained set forth in this Agreement; provided, however, if a which breach or failure is curable on or before the Outside Date, then only upon to perform (i) would give rise to the failure of a condition set forth in Section 5.2(a) or Section 5.2(b) and (ii) is incapable of being cured by Dell Technologies or Seller, as the other party case may be, at least three Business Days prior to cure such breach the applicable Closing Outside Date or, if capable of being so cured, shall not have been cured by Dell Technologies or Seller, as the case may be, until the earlier of (A) three Business days prior to the applicable Closing Outside Date and (B) within 20 30 calendar days after following receipt of written notice thereof or if of such breach or failure could to perform from VMware; provided that, VMware is not reasonably be expected then in material breach of this Agreement so as to cause any of the conditions set forth in Section 5.1 or Section 5.3 not to be cured within such 20 calendar days and the other party promptly commences an action to cure after receipt capable of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Date.being satisfied; or
(cd) by Parent Dell Technologies if before the purchase VMware shall have breached or failed to perform any of the Shares pursuant its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to the Offer, perform (i) would give rise to 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement failure of a Takeover Proposal (including the filing of a Schedule 13D with the SECcondition set forth in Section 5.2(a) or Section 5.2(b) and (ii) is incapable of being cured by VMware at least three Business Days prior to the board applicable Closing Outside Date or, if capable of trustees being so cured, shall not have been cured by VMware until the earlier of (A) three Business days prior to the Company applicable Closing Outside Date and (B) within 30 calendar days following receipt of written notice of such breach or any committee thereof shall have resolved failure to take perform from Dell Technologies; provided that, neither Dell Technologies nor Seller is then in material breach of this Agreement so as to cause any of the foregoing actions; orconditions set forth in Section 5.1 or Section 5.2 not to be capable of being satisfied.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Vmware, Inc.), Stock Purchase Agreement (Vmware, Inc.)
Termination. This If not sooner terminated, this Supply Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, 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 applicable law) onlyas follows:
(a) by mutual written consent In the event either party hereto breaches or otherwise fails to perform any part of this Supply Agreement (other than a payment breach), then the parties;
party hereto not in breach shall notify (bin writing) by either Parent the party in breach and demand that such breach or the Company:
(i) if the purchase of the Shares pursuant such failure to the Offer perform be corrected within a stipulated period, which period shall not have occurred on or prior be less than thirty (30) days following notification. If the party in breach fails to correct the close breach within the period stated in the written notice of business on April 30demand for correction, 2005 (the “Outside Date“)other party may, in its sole discretion, immediately terminate this Supply Agreement by giving the party in breach written notice of termination; 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 cannot reasonably be expected to be cured corrected within such 20 calendar days and the other party promptly commences an action to cure after receipt period stated in the written notice of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Date;
(iv) if demand for correction, the other party shall not have breached the right to immediately terminate the Supply Agreement until such breach could be reasonably corrected so long as the party in breach has undertaken reasonable action to correct such breach and is continuing to diligently pursue such corrective action.
(b) UWG may terminate this Supply Agreement in the event Retailer shall: (i) file, or failed have filed against it, a petition to perform in any material respect any declare it insolvent or bankrupt, (ii) make an assignment for the benefit of its covenants creditors, (iii) be dissolved or other agreements contained liquidated, (iv) cease to conduct business, (v) apply for or consent to the appointment of a receiver, trustee, or liquidator, or (vi) fail to pay its debts and obligations as they mature 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 Dateaccordance with normal business practices.
(c) by Parent if before Notwithstanding Section 4.2(a) hereof, UWG may terminate this Supply Agreement upon written notice to Retailer at any time upon the purchase occurrence of any one or more of the Shares pursuant to the Offer, following: (i) Retailer’s failure to pay when due any invoice due Supplier; (ii) Retailer’s failure to fulfill the board purchasing covenants in Section 2 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 or the other transactions contemplated by this Agreement, (yiii) approved Retailer’s or recommended any Takeover Proposal of its Affiliate’s payment default under any financing agreement, including but not limited to any promissory note, guaranty, lease, sublease or security agreement, in connection with any equity investment, loan of money, lease or financial support transaction between UWG or its Affiliates and Retailer or its Affiliates, (iv) Retailer ceases to be a member-patron of UWG in good standing, (v) Retailer’s sale of all or substantially all of its assets, or (zvi) failed to reaffirm its recommendation a Change in Control of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orRetailer.
Appears in 2 contracts
Sources: Supply Agreement, Supply Agreement (Unified Western Grocers Inc)
Termination. This Agreement may be terminated and the Merger, the Second Merger and the Bank Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to notwithstanding approval thereof by the Offer or after shareholders of the Company Shareholder Approval (if required by applicable law) only:except as otherwise specified in this Section 9.1):
(a) by mutual written consent of Parent and the partiesCompany;
(b) by either Parent or the Company, by written notice to the other party:
(i) if the purchase of the Shares pursuant to the Offer Merger shall not have occurred been consummated on or prior to the close of business on April 30before February 15, 2005 2016 (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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 9.1(b)(i) shall not be available to any party whose failure to comply with Section 6.5 any provision of this Agreement has caused been the cause of the failure of the Effective Time to occur on or primarily resulted in before the Outside Date;
(ii) if any court of competent jurisdiction or other Governmental Entity shall have issued a judgment, order, injunction, rule or decree, or taken any other action restraining, enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement and such judgment, order, injunction, rule, decree or other action by such Governmental Authorityshall have become final and nonappealable;
(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 Company Shareholder Approval shall not be disregarded), shall not be true and correct, with only such exceptions as, individually have been obtained at the shareholders meeting called for that purpose or in the aggregate, have not had at any adjournment or postponement thereof at which a Material Adverse Effectvote thereon was taken; 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;or
(iv) if any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the other consummation of the Merger, the Second Merger or the Bank Merger by final, nonappealable action of such Governmental Entity; provided; that the right to terminate this Agreement under this Section 9.1(b)(iv) shall not be available to any party whose failure to comply with any provision of this Agreement has been the cause of such denial of approval;
(c) by Parent, by written notice to the Company:
(i) if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained set forth in this Agreement; provided, however, if a which breach or failure is curable to perform, either individually or in the aggregate, if occurring or continuing on or before the Outside Date, then only upon date on which the Closing would otherwise occur (A) would result in the failure of any of the other party to cure such breach within 20 calendar conditions set forth in Section 8.1 or 8.2 and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) thirty days after receipt the giving of written notice thereof or if to the Company of 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.failure; or
(cii) by Parent if before the purchase of the Shares pursuant if, prior to the Offer, (i) the board of trustees receipt of the Company Shareholder Approval, the Company or the Company Board (or any committee thereof shall have thereof) has (xA) withdrawn effected a Company Adverse Recommendation Change or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreementapproved, (y) approved adopted, endorsed or recommended any Takeover Proposal or Company Acquisition Proposal, (zB) failed to reaffirm its recommendation of recommend the Merger and the other transactions contemplated by approval of this Agreement by the shareholders of the Company, (C) materially breached the terms of Section 7.3 in any respect adverse to Parent, or (D) materially breached its obligations under Section 7.4 by failing to call, give notice of, convene and hold the meeting of the Company’s shareholders in accordance with Section 7.4; or
(iii) if the Company or the Company Board has, in response to the commencement (other than by Parent or a Subsidiary thereof) of a tender offer or exchange offer for 20% or more of the outstanding shares of Company Common Stock, recommended within five the ten business day period specified in Rule 14e-2(a) under the Exchange Act, that the shareholders of Company tender their shares in such tender or exchange offer or otherwise failed to recommend that such shareholders reject such tender offer or exchange offer within the ten business day period specified in Rule 14e-2(a) under the Exchange Act.
(d) by the Company, by written notice to Parent:
(i) if Parent or Interim shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the date on which the Closing would otherwise occur (A) would result in the failure of any of the conditions set forth in Section 8.1 or 8.3 and (B) cannot be or has not been cured or has not been waived by the earlier of (1) the Outside Date and (2) thirty days after the public announcement giving of a Takeover Proposal (including the filing written notice to Parent of a Schedule 13D with the SEC) such breach or failure; or
(ii) in connection with the board of trustees of the Company’s entering into a definitive agreement to effect a Company or any committee thereof shall have resolved to take any of the foregoing actions; orSuperior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Home Bancorp, Inc.), Merger Agreement (Louisiana Bancorp Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(a) by mutual written consent of the parties;
(b) by either Parent Buyer or the Company:
(i) Seller if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to the close of business on April 30by December 31, 2005 (the “Outside Date“)2009; provided, however, that any party may elect to extend such date to March 31, 2010; provided, further, that in the event the Closing has not occurred by March 31, 2010, the parties will consult in good faith to determine whether to extend the term of this Agreement, it being understood that the parties shall be required to consult only until the fifth calendar day after such date and not be under any obligation to extend the term of this Agreement thereafter; provided, further, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 6.1(a) shall not be available to any party whose breach of any representation or warranty or failure to perform any of its obligations obligation under this Agreement has been the cause of, shall have caused or resulted in, such purchase not occurring before in the failure of the Closing to occur on or prior to such date;; provided, further, that if Buyer exercises its rights pursuant to Section 1.2(c)(i) hereof to require that any Approval(s) not listed on Section 1.2(c)(i) of the Disclosure Letter be required to be made or obtained, the parties shall agree in good faith to an appropriate extension to the term of this Agreement; or
(iib) if by either Buyer or Seller in the event that any Governmental Authority Entity of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement any of the Transaction Documents and such order, decree or decree, ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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.or
(c) by Parent if before the purchase mutual written consent of Buyer and Seller. In the Shares pursuant to event of termination of this Agreement as provided in this Section 6.1, this Agreement shall forthwith become void and there shall be no liability on the Offer, (i) the board part of trustees either party hereto; provided that nothing herein shall relieve either party from liability for any breach 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation . The provisions of the Merger Section 3.2 and the other transactions contemplated by Article 6 shall survive termination of this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; oras provided in this Section 6.1.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (American International Group Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date as provided below:
(a) by the mutual written consent of the partiesSeller and Purchaser;
(b) by either Parent Seller or the Company:
(i) Purchaser if the purchase sale and transfer of the Shares pursuant to the Offer Article I of this Agreement shall not have occurred on or prior to the close of business on April 30been consummated by March 31, 2005 (the “Outside End Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.1(b) shall not be available to any party whose action or failure to perform any act has been a principal cause of its obligations under or resulted in the failure of the sale and transfer of the Shares pursuant to Article I of this Agreement has been the cause of, to occur on or resulted in, such purchase not occurring before such datedate and such action or failure to act constitutes a breach of this Agreement;
(iic) by either Seller or Purchaser if any a Governmental Authority Entity shall have issued an order, decree or ruling or taken any other action (including the failure to have taken an action), in any case having the effect of permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement sale and such transfer of the Shares, which order, decree or decree, ruling or other action is final and nonappealable;
(d) by Seller, upon a breach of any representation, warranty, covenant or agreement on the part of Purchaser set forth in this Agreement, or if any representation or warranty of Purchaser shall have become final and nonappealable; provideduntrue, however, in either case such that the right conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided that if such inaccuracy in Purchaser’s representations and warranties or breach by Purchaser is curable by Purchaser prior to the End Date through the exercise of reasonable efforts, then Seller may not terminate this Agreement under this Section 8.1(d) prior to thirty (30) days following the receipt of written notice from Seller to Purchaser of such breach (it being understood that Seller may not terminate this Agreement pursuant to this paragraph (b)(iiSection 8.1(d) if it shall not have materially breached this Agreement or if such breach by Purchaser is cured so that such conditions would then be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authoritysatisfied);
(iiie) if by Purchaser, upon a breach of any representation, warranty, covenant or agreement on the representations and warranties part of the other party contained Seller set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect if any representation or any similar standard warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 6.3(a) or qualification (except for Section 6.3(b) would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided that if such inaccuracy in Seller’s 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 breach by Seller is curable on or before by Seller prior to the Outside DateEnd Date through the exercise of reasonable efforts, then only upon Purchaser may not terminate this Agreement under this Section 8.1(e) prior to the failure of End Date thirty (30) days following the other party to cure such breach within 20 calendar days after receipt of written notice thereof or if from Purchaser to Seller of such failure could breach (it being understood that Purchaser may not reasonably be expected terminate this Agreement pursuant 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;
(ivthis Section 8.1(e) if the other party it shall have materially 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 Agreement or if such breach or failure could not reasonably by Seller is cured so that such conditions would then 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.satisfied); and
(cf) by Parent Purchaser, if before the purchase Seller has not notified Purchaser in writing within fifteen (15) business days of the Shares pursuant to date hereof that the Offer, (icondition set forth in Section 6.2(e) 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orhas been satisfied.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Science Applications International Corp), Stock Purchase Agreement (Science Applications International Corp)
Termination. This Notwithstanding anything herein to the contrary, this Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to Time (notwithstanding any adoption of this Agreement by the Offer or after stockholders of the Company Shareholder Approval (if required or any approval of the matters constituting the Parent Proposal by applicable law) only:the stockholders of Parent):
(a) by the mutual written consent of Parent and the partiesCompany in a written instrument;
(b) by either the Company or Parent or upon written notice to the Companyother, if:
(i) if the purchase of the Shares pursuant to the Offer Merger shall not have occurred been consummated on or prior to the close of business on April 30before December 31, 2005 2008 (the “Outside Termination Date“”); provided, however, however that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 7.1(b)(i) shall not be available to any a party whose failure to perform fulfill any of its obligations material obligation under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of the Merger to have been consummated on or before such date;
(ii) if any Governmental Authority Entity shall have issued an a statute, rule, order, decree or ruling regulation or taken any other action action, in each case permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement Merger or making consummation of the Merger illegal and such statute, rule, order, decree or ruling decree, regulation or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 7.1(b)(ii) shall not be available to any party whose failure to comply with Section 6.5 fulfill any material obligation under this Agreement has caused been the cause of or primarily resulted in such action by or who is then in material breach of Section 5.5 with respect to such Governmental Authorityaction;
(iii) prior to obtaining the Company Required Vote, a Company Adverse Recommendation Change shall have occurred;
(iv) prior to obtaining the Parent Required Vote, a Parent Adverse Recommendation Change shall have occurred;
(v) the stockholders of the Company fail to adopt this Agreement because of the failure to obtain the Company Required Vote at the Company Special Meeting; or
(vi) the Parent Proposal shall not have been approved because of the failure to obtain the Parent Required Vote at the Parent Special Meeting;
(c) by the Company, upon written notice to Parent, if (i) Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would give rise to the failure of a condition set forth in Sections 6.2(a) or 6.2(b) or (ii) the respective representations and warranties of Parent contained in this Agreement are or shall become untrue, which untruth would give rise to the failure of the conditions set forth in Section 6.2(a); provided, however, that the right of the Company to terminate this Agreement pursuant to this Section 7.1(c) shall not be available unless such breach, failure to perform or untruth is incapable of being cured by Parent prior to the Termination Date or is not cured by Parent within 30 days following receipt of written notice from the Company of such breach, failure to perform or untruth;
(d) by Parent, upon written notice to the Company, if (i) the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform would give rise to the failure of a condition set forth in Sections 6.3(a) or 6.3(b) or (ii) the respective representations and warranties of the other party Company contained in this AgreementAgreement are or shall become untrue, disregarding all qualifications and exceptions contained therein relating which untruth would give rise to materiality or Material Adverse Effect or any similar standard or qualification (except for the representations and warranties contained failure of the conditions set forth in Section 4.6(i6.3(a), 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 that the right of Parent to terminate this Agreement pursuant to this Section 7.1(d) shall not be available unless such breach, failure to be true and correct perform or untruth is curable on incapable of being cured by the Company prior to the Termination Date or before is not cured by the Outside Date, then only upon the failure of the other party to cure such breach Company within 20 calendar 30 days after following receipt of written notice thereof from Parent of such breach, failure to perform 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 Dateuntruth;
(ive) by Parent, upon written notice to the Company, if the other party Company shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this AgreementSection 5.3; providedand
(f) by the Company, howeverupon written notice to the Parent, 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 breached or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or perform in any committee thereof shall have resolved to take material respect any of the foregoing actions; orits covenants or other agreements contained in Section 5.3.
Appears in 2 contracts
Sources: Merger Agreement (Bois D Arc Energy, Inc.), Merger Agreement (Stone Energy Corp)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, 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 applicable law) only:Time as follows;
(a) by mutual written consent of the partieseach of Seller and Purchaser;
(b) by either Parent Seller or the Company:
(i) Purchaser, if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on April before June 30, 2005 (the “Outside "Termination Date“"); provided, however, that in the event the FTC or DOJ issues a "second request" in connection with any review of the transactions contemplated by this Agreement under the HSR Act, such date shall be extended to September 30, 2005; provided further, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 10.1(b) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of the Effective Time to occur on or before such datethe Termination Date;
(iic) by either Seller or Purchaser, if any a Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting injunction having the effect of making the transactions contemplated by this Agreement hereby illegal or permanently prohibiting the consummation of the transactions contemplated hereby, and such order, decree or ruling or other action injunction shall have become final and nonappealable; providednonappealable (but only if such party shall have used its best efforts to cause such order, howeverdecree or injunction to be lifted or vacated and shall have otherwise complied with its obligations under this Agreement, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with including Purchaser's obligations under Section 6.5 has caused or primarily resulted in such action by such Governmental Authority6.2(a));
(iiid) by either Seller or Purchaser, if the representations and warranties of (x) there shall have been a material breach by the other party of any of its representations, warranties, covenants or agreements contained in this Agreement, disregarding all qualifications and exceptions contained therein relating which breach would result in the failure to materiality satisfy one or Material Adverse Effect or any similar standard or qualification (except for more of the representations and warranties contained conditions set forth in Section 4.6(i7.2 (in the case of a breach by Seller) or Section 7.3 (in the case of a breach by Purchaser), for which and such qualifiers breach shall not be disregarded)incapable of being cured or, if capable of being cured, 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 been cured within 20 calendar 30 days after receipt of written notice thereof or if such failure could not reasonably be expected shall have been received by the party alleged 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 Datebreach.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Stock Purchase Agreement (Chiquita Brands International Inc), Stock Purchase Agreement (Performance Food Group Co)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment approval of this Agreement and paid for all Shares validly tendered the Merger Documents by the stockholders of Seller and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by applicable law) onlySeller Subsidiary:
(a) by mutual written consent of the partiesparties hereto;
(b) by either Parent Acquiror (on behalf of itself and Acquiror Sub) or the Company:
Seller (on behalf of itself and Seller Subsidiary) (i) if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on April March 31, 2005, unless approval by a Governmental Entity pursuant to Section 6.1(a) is pending and has not been finally resolved, in which event such date shall be automatically extended to June 30, 2005 2005; or (ii) if a vote of the “Outside Date“)stockholders of Seller is taken and such stockholders fail to approve this Agreement and the Parent Merger Documents at the Special Meeting; unless the failure of such occurrence shall be due to the failure of the party seeking to terminate this Agreement to perform or observe its agreements set forth herein to be performed or observed by such party at or before the Effective Time or such vote, as the case may be;
(c) by Acquiror (on behalf of itself and Acquiror Sub) or Seller (on behalf of itself and Seller Subsidiary) upon written notice to the other (i) 30 or more days after the date upon which any application for a regulatory or governmental approval necessary to consummate the Mergers and the other transactions contemplated hereby shall have been denied or withdrawn at the request or recommendation of the applicable Governmental Entity, unless within such 30-day period a petition for rehearing or an amended application is filed or noticed, or 30 or more days after any petition for rehearing or amended application is denied; provided, however, that no party hereto shall have the right to terminate this Agreement pursuant to this paragraph (b)(iSection 7.1(c)(i) if such denial or request or recommendation for withdrawal shall not be available due to any the failure of the party whose failure seeking to terminate this Agreement to perform any or observe the covenants and agreements of its obligations under this Agreement such party set forth herein; and in each case the time period for appeals and requests for reconsideration has been the cause of, run; or resulted in, such purchase not occurring before such date;
(ii) if any Governmental Authority Entity of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining a final non-appealable order enjoining 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties consummation 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 Mergers or the other transactions contemplated by this Agreement;
(d) by Acquiror (on behalf of itself and Acquiror Sub) in writing if Seller or Seller Subsidiary has, or by Seller (yon behalf of itself and Seller Subsidiary) approved in writing if Acquiror or recommended Acquiror Sub has, breached (i) any Takeover Proposal covenant or (zundertaking contained herein, which breach would result in the failure to satisfy the closing condition set forth in Section 6.2(a) failed to reaffirm its recommendation of or 6.3(a), as the Merger case may be, and the other transactions contemplated by this Agreement such breach cannot be or has not been cured within five business 30 days after the public announcement giving of a Takeover Proposal (including written notice of such breach to the filing of a Schedule 13D with the SEC) non-terminating party, or (ii) any representation or warranty contained herein, which breach would result in the board failure to satisfy the closing condition set forth in Section 6.2(a) or 6.3(a), as the case may be, and such breach cannot be or has not been cured within 30 days after the giving of trustees written notice of such breach to the non-terminating party;
(e) by Acquiror (on behalf of itself and Acquiror Sub) if (i) Seller shall have failed to make the Seller Recommendation in the Registration Statement, (ii) Seller shall have effected a change in the Seller Recommendation, (iii) Seller shall have breached its obligations under this Agreement by reason of a failure to call or convene the Special Meeting in accordance with Section 5.8, or (iv) Seller shall have approved or recommended, or proposed publicly to approve or recommend, any Acquisition Transaction;
(f) by Acquiror (on behalf of itself and Acquiror Sub) if holders of more than 15% of Seller Common Stock exercise statutory rights of dissent and appraisal pursuant to Section 262 of the Company DGCL;
(g) by Seller (on behalf of itself and Seller Subsidiary) (i) in accordance with the terms and conditions of Section 5.3(c), or any committee thereof (ii) under the circumstances described in the proviso of Section 5.8;
(h) by Acquiror (on behalf of itself and Acquirer Sub) if the FDIC and/or the ASBD shall have resolved to take any closed or ordered the closing of Seller Subsidiary; or
(i) by Seller (on behalf of itself and Seller Subsidiary) upon the occurrence of both of the foregoing actions; orfollowing events: (i) the average closing price for a share of Acquiror Common Stock on the Determination Date is less than $25.00, which is 80% of $31.25 (the price for a share of Acquiror Common Stock used to establish the Exchange Ratio) and (ii) (a) the number obtained by dividing the closing price for a share of Acquiror Common Stock on the Determination Date by $31.25 is less than (b) the number obtained by dividing the Index Value (as defined below) on the Determination Date by the Index Value on the Starting Date minus .20.
Appears in 2 contracts
Sources: Merger Agreement (Peoples Holding Co), Merger Agreement (Heritage Financial Holding)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to notwithstanding approval thereof by the Offer or after shareholders of the Company Shareholder Approval (if required by applicable law) onlyCompany:
(a) by mutual written consent of Parent, Sub and the partiesCompany; or
(b) by Parent, so long as neither Parent nor Sub is then in material breach of its obligations hereunder, upon a breach of any material representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any such representation or warranty of the Company shall have been or become untrue, in each case such that the conditions set forth in Section 6.2(a) or Section 6.2(b), as the case may be, would not be satisfied and such breach or untruth (i) cannot be cured by the Closing Date or (ii) has not been cured within 30 days of the date on which the Company receives written notice thereof from Parent;
(bc) by the Company, so long as the Company is not then in material breach of its obligations hereunder, upon a breach of any material representation, warranty, covenant or agreement on the part of Parent or Sub set forth in this Agreement, or if any such representation or warranty of Parent or Sub shall have been or become untrue, in each case such that the conditions set forth in Section 6.3(a) or Section 6.3(b), as the case may be, would not be satisfied and such breach or untruth (i) cannot be cured by the Closing Date or (ii) has not been cured within 30 days of the date on which Parent or Sub receives written notice thereof from the Company;
(d) by either Parent or the Company if any permanent injunction or other order, decree, ruling or action by any Governmental Entity preventing the consummation of the Merger shall have become final and nonappealable; provided that such right 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 other order, decree, ruling 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 this Agreement to perform its obligations hereunder required to be performed at or prior to the Effective Time) the Merger shall not have been consummated on or prior to May 12, 1998 (the "Termination Date"); provided that such right of termination shall not be available to Parent if Parent (or its affiliates) have not taken necessary action pursuant to Section 5.6 in order for the FCC Application to be approved;
(f) by either Parent or the Company:, if the approval of the shareholders of the Company of this Agreement and the Merger required for the consummation of the Merger shall not have been obtained by reason of the failure to obtain the Required Vote at a duly held meeting of shareholders or at any adjournment thereof;
(g) by Parent, if (i) the Board of Directors of the Company (A) shall have withdrawn, modified or changed its approval or recommendation of this Agreement or the Merger in any manner which is adverse to Parent, (B) shall have approved or have recommended to the shareholders of the Company a Transaction Proposal or (C) shall have resolved to do the foregoing; or (ii) the Company shall have wilfully failed to hold the Shareholders Meeting on or prior to January 15, 1998 (the "Delayed Date"); provided that the Delayed Date shall be automatically extended for each day with respect to which the failure to hold the Shareholders Meeting (x) is attributable to a lack of cooperation and assistance by Parent, Sub or their affiliates or (y) is the result of any injunction or similar action or any action of the SEC, in each case preventing or delaying the holding of such meeting; or
(h) by the Company prior to the receipt of the Required Vote in accordance with Section 5.3; provided, that Parent receives at least the five business days' prior written notice specified in Section 5.3(b) and, during such five business day period, the Company shall, and shall cause its financial and legal advisors to, consider any adjustment in the terms and conditions of this Agreement that Parent may propose; provided, further, that the Company may not effect such termination pursuant to this Section 7.1(h) unless the Company has contemporaneously with such termination tendered payment to Parent or Parent's designee of the amounts, if any, that are due to Parent under Section 7.3(b)(ii).
(i) by the Company if there is no reasonable possibility that (A) the purchase of the Shares pursuant to the Offer shall not have occurred FCC Application will receive final approval on or prior to the close Termination Date or (B) the funding of business on April 30, 2005 (any of the “Outside Date“); provided, however, that financing commitments described in the right to terminate this Agreement pursuant to this paragraph (b)(i) shall not Financing Documents will be available to any party whose failure to perform any of its obligations under this Agreement has been Parent or Sub substantially on the cause of, or resulted in, such purchase not occurring before such date;terms set forth therein; or
(ii) if any Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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.
(cj) by Parent if before the purchase of the Shares pursuant to the Offer, Company (i) the board of trustees of if a Solvency Letter reasonably satisfactory to the Company or any committee thereof shall have (x) withdrawn or modified has not been delivered to the Company within the period described in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SECSection 5.10(b) or (ii) the board of trustees of if (A) Parent has not provided the Company with reasonably satisfactory Financing Documents within the period described in Section 5.11, (B) the Company objects in writing to Parent to any material Financing Change provided to the Company pursuant to Section 5.11, and in each case (A) and (B) Parent has not taken action which reasonably satisfies such objection within ten business days of notice thereof or any committee thereof shall have resolved (iii) if Parent does not confirm in writing to take any the Company that Parent believes in good faith that it will be able to obtain financing substantially on the terms set forth in the Financing Documents within five business days of being requested to do so by the foregoing actions; orCompany pursuant to Section 5.11.
Appears in 2 contracts
Sources: Merger Agreement (Lin Television Corp), Merger Agreement (Lin Television Corp)
Termination. This Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment notwithstanding any requisite approval and paid for all Shares validly tendered adoption of this Agreement and not withdrawn pursuant to the Offer or after transactions contemplated hereby by the Company Shareholder Approval (if required by applicable law) onlyshareholders of the Company:
(a) by By mutual written consent of Parent, Purchaser and the parties;Company duly authorized by the Boards of Directors of Parent, Purchaser and the Company; or
(b) by either Parent By Parent, Purchaser or the Company:
Company if (i) if the purchase of the Shares shall not have been accepted for payment pursuant to the Offer shall not have occurred on or prior to the close of business on April 30before March 31, 2005 (the “Outside Date“)1998; providedPROVIDED, howeverHOWEVER, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.01(b) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of the Shares to have been accepted for payment on or before such date;
date nor be available to Parent or Purchaser unless the failure to accept Shares for payment pursuant to the Offer resulted from the failure of any one of the conditions set forth in Annex A to have been satisfied; or (ii) if any Governmental Authority court of competent jurisdiction or other governmental authority shall have issued an order, decree or decree, ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Merger and such order, decree or decree, ruling or other action shall have become final and nonappealable; providednonappealable or, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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)a temporary order, 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 been lifted 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 Agreementbeing issued; 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.or
(c) By Parent if due to an occurrence or circumstance, other than as a result of a breach by Parent or Purchaser of their obligations hereunder, resulting in a failure to satisfy any condition set forth in Annex A hereto, Purchaser shall have (i) failed to commence the Offer within 30 days following the date of this Agreement or (ii) terminated the Offer without having accepted any Shares for payment thereunder; or
(d) By the Company, upon approval of the Board, if before (i) due to an occurrence or circumstance that would result in a failure to satisfy any of the conditions set forth in Annex A hereto, Purchaser shall have terminated the Offer without having accepted any Shares for payment thereunder or (ii) prior to the purchase of the Shares pursuant to the Offer, (i) if the board of trustees Board determines in good faith, after giving effect to any concessions that may be offered by Parent, that it is necessary to do so in accordance with its fiduciary duties to the Company and its shareholders under applicable law after consultation with its outside legal counsel in order to enter into a definitive agreement with respect to a Superior Proposal, upon five days' prior written notice to Parent, setting forth in reasonable detail the final terms and conditions of the Superior Proposal (but the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse not be required to Parent or Subsidiary its approval or recommendation disclose the identity of the Merger or person making the other transactions contemplated by this AgreementSuperior Proposal); PROVIDED, (y) approved or recommended HOWEVER, that any Takeover Proposal or (z) failed to reaffirm its recommendation termination of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SECpursuant to this Section 8.01(d)(ii) or (ii) the board of trustees of shall not be effective until the Company or any committee thereof shall have resolved to take any has made full payment of the foregoing actions; orall amounts provided under Section 8.03.
Appears in 2 contracts
Sources: Merger Agreement (Spine Tech Inc), Merger Agreement (Spine Tech Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer or after shareholders of the Company Shareholder Approval (if required by applicable law) onlydescribed herein:
(a) by mutual written consent of Parent and the partiesCompany;
(b) by either Parent or the 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) Company if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the completion of the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iiic) 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;by Parent if:
(ivi) if the other party Company shall have breached 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 is incapable of being cured or has not been cured within 5 days after the giving of written notice thereof to the Company (but not later than the expiration of the 20 business day period provided for the Offer under Section 1.1(b) hereof);
(ii) any representation or warranty of the Company shall not have been true and correct when made (without for this purpose giving effect to qualifications of materiality contained in such representation and warranty), if such failure to be true and correct, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(iii) any representation or warranty of the Company shall cease to be true and correct at any later date (without for this purpose giving effect to qualifications of materiality contained in such representation and warranty) as if made on such date (other than representations and warranties made as of a specified date) other than as a result of a breach or failure to perform by the Company of any of its covenants or agreements under this Agreement if such failure to be true and correct, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; provided, however, if a breach that such representation or failure warranty is curable on incapable of being cured or before the Outside Date, then only upon the failure of the other party to cure such breach has not been cured within 20 calendar 5 days after receipt the giving of written notice thereof or if such breach or failure could to the Company (but 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.
(cexpiration of the 20 business day period provided for the Offer under Section 1.1(b) by hereof); provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(c) shall not be available to Parent if before the purchase Purchaser or any other affiliate of the Parent shall acquire shares of Common Shares pursuant to the Offer;
(d) by Parent if, whether or not permitted to do so by this Agreement, (i) the board Board of trustees Directors of the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse to Parent or Subsidiary Purchaser its approval or recommendation of the Merger Offer or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or Company Proposals; (ii) the board Board of trustees Directors of the Company or any committee thereof shall have approved or recommended to the shareholders of the Company any Company Takeover Proposal or Alternative Transaction; (iii) the Board of Directors of the Company or any committee thereof shall have approved or recommended that the shareholders of the Company tender their Common Shares in any tender or exchange offer that is an Alternative Transaction; (iv) the Board of Directors of the Company or any committee thereof shall have taken any position or made any disclosures to the Company's shareholders permitted pursuant to Section 4.9 which has the effect of any of the foregoing; (v) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions;
(e) by either Parent or the Company if, as the result of the failure of the Minimum Condition or any of the other conditions set forth in Annex I hereto, the Offer shall have terminated or expired in accordance with its terms without Purchaser having purchased any Common Shares pursuant to the Offer, provided that if the failure to satisfy any conditions set forth in Annex I shall be a basis for termination of this Agreement under any other clause of this Section 7.1, a termination pursuant to this clause (e) shall be deemed a termination under such other clause;
(f) by either Parent or the Company if the Offer shall not have been completed on or before August 31, 2001, provided that the right to terminate this Agreement pursuant to this Section 7.1(f) shall not be available to any party whose failure to perform any of its obligations under this Agreement results in the failure of the Offer to be completed by such time;
(g) by the Company, if Parent or Purchaser shall have breached or failed to perform in any material respect any of its 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 5 days after the giving of written notice thereof to Parent; or
(h) by the Company in order to accept a Superior Proposal by a third party, provided (i) the Company has given Parent five business days advance notice of the Company's intention to accept such Superior Proposal, (ii) the Company shall in fact accept such third party Superior Proposal, (iii) the Company shall have paid the fee and expenses contemplated by Section 8.7 hereof, and (iv) the Company shall have complied in all respects with the provisions of Section 4.9. The party desiring to terminate this Agreement pursuant to the preceding paragraphs shall give written notice of such termination to the other party in accordance with Section 8.5 hereof.
Appears in 2 contracts
Sources: Merger Agreement (SMC Corp), Merger Agreement (Monaco Coach Corp /De/)
Termination. This Agreement may be terminated terminated, and the Merger contemplated hereby may be abandoned abandoned, at any time before prior to the Effective Time, by action taken or authorized by the Board of Directors of the terminating party or parties, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer or after matters presented in connection with the Merger by the stockholders of the Company Shareholder Approval (if required by applicable law) onlyor the stockholders of BIMI:
(a) by By mutual written consent of BIMI and the partiesCompany, by action of their respective Boards of Directors;
(b) by By either Parent the Company or the Company:
(i) BIMI if the purchase of the Shares pursuant to the Offer Merger shall not have occurred on or been consummated prior to May 31, 2013 (such date, the close of business on April 30, 2005 (the “''Outside Date“''); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 7.1(b) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement (including without limitation such party's obligations set forth in Section 5.7) has been the cause of, or resulted in, such purchase not occurring the failure of the Effective Time to occur on or before such datethe Outside Date;
(iic) By either the Company or BIMI if any Governmental Authority governmental entity shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Agreement, and such order, decree or decree, ruling or other action shall have become final and nonappealablenonappealable (which order, decree, ruling or other action the parties shall have used their commercially reasonable best efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 5.7);
(d) By written notice of BIMI (if BIMI is not in material breach of its obligations or its representations and warranties under this Agreement), if there has been a breach by the Company or Merger Sub of any representation, warranty, covenant or agreement contained in this Agreement which (i) would result in a failure of a condition set forth in Section 6.3(a) or 6.3(b) and (ii) cannot be cured prior to the Outside Date; providedprovided that BIMI shall have given the Company written notice, howeverdelivered at least twenty (20) days prior to such termination, that the right stating BIMI's intention to terminate this Agreement pursuant to this paragraph (b)(iiSection 7.1(d) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in and the basis for such action by such Governmental Authoritytermination;
(iiie) By written notice of the Company (if the Company is not in material breach of its obligations or its representations and warranties under this Agreement), if there has been a breach by BIMI of the other party any representation, warranty, covenant or agreement contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification Agreement which (except for the representations and warranties contained i) would result in a failure of a condition set forth in Section 4.6(i), for which such qualifiers shall 6.2(a) or 6.2(b) and (ii) cannot 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 cured prior to be true and correct is curable on or before the Outside Date; provided that the Company shall have given BIMI written notice, then only upon delivered at least twenty (20) days prior to such termination, stating the failure of Company's intention to terminate this Agreement pursuant to this Section 7.1(e) and the other party to cure basis for such breach within 20 calendar days after receipt of termination; or
(h) By written notice thereof of either BIMI or the Company 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 Company Stockholder Approval shall not have been obtained at the Company Stockholders' Meeting duly convened therefor (or at any committee thereof shall have (x) withdrawn adjournment or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreementpostponement thereof), (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of BIMI Stockholder Approval shall not have been obtained at the Company BIMI Stockholders' Meeting duly convened therefor (or at any committee thereof shall have resolved to take any of the foregoing actions; oradjournment or postponement thereof).
Appears in 2 contracts
Sources: Merger Agreement (Naturewell Inc), Merger Agreement (Naturewell Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date:
(a) by the mutual written consent agreement of the partiesParent, Purchaser and Sellers;
(b) by either Parent Purchaser or the Company:
Sellers, if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the transactions contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, and such order, decree, ruling or injunction shall have become final and non-appealable and the party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have used reasonable efforts to remove such order, decree, ruling or injunction;
(c) by Purchaser, by written notice to Sellers, if the purchase of the Shares pursuant to the Offer Closing Date shall not have occurred on or prior to before such date that is one hundred eighty (180) days following the close of business on April 30, 2005 date hereof (the “Outside Date“”); provided, however, that if, on or prior to the Outside Date, the condition specified in Section 6.1(a) has not been satisfied and such failure to satisfy such condition, in Sellers’ reasonable determination, has not been the result of Purchaser’s failure to comply with its obligations under Section 5.2, then the Outside Date shall be extended automatically for an additional one hundred eighty (180) days (the “Extended Outside Date”); provided, further, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 7.1(c) shall not be available to any party whose Purchaser if its failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, shall have caused or resulted in, such purchase not occurring in the failure of the Closing Date to occur on or before such dateExtended Outside Date;
(iid) by Sellers, by written notice to Purchaser, if any Governmental Authority the Closing Date shall not have issued an order, decree occurred on or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting before such date that is ninety (90) days following the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealabledate hereof (the “Seller Termination Date”); provided, however, that if on or prior to such date that is ninety (90) days following the date hereof, the condition specified in Section 6.1(a) has not been satisfied and such failure to satisfy such condition has not been the result of Purchaser’s failure to comply with its obligation under Section 5.2, then such date shall be extended for an additional ninety (90) days; provided, further, that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 7.1(d) shall not be available to Sellers if it has failed to fulfill any party whose obligation of Sellers under this Agreement and such failure to comply with Section 6.5 has shall have caused or primarily resulted in the failure of the Closing Date to occur on or before such action by such Governmental Authoritydate;
(iiie) by Purchaser, so long as Purchaser is not then in material breach of any of its representations, warranties, covenants or agreements hereunder, by written notice to Sellers, if the representations and warranties there shall have been a material breach of the other party contained in this Agreementany representation or warranty of Sellers, disregarding all qualifications and exceptions contained therein relating or a material breach of any covenant or agreement of Sellers hereunder, which breaches would be reasonably expected 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 ashave, individually or in the aggregate, have not had a Companies Material Adverse Effect; provided, howeverand such breach shall not have been remedied within thirty (30) days after receipt by Sellers of notice in writing from Purchaser (a “Breach Notice”), if specifying the nature of such failure to breach and requesting that it be true and correct is curable on remedied or before the Outside Date, then only upon the failure Purchaser shall not have received adequate assurance of the other party to a cure of such breach within 20 calendar days after receipt such thirty-day period or Sellers shall not have made a capital contribution to HCE-Rockfort in an amount equal to the expected damages, as reasonably estimated by the Parties, from such breach, provided that Sellers shall have no obligation to make any such capital contribution pursuant to this Section 7.1(e);
(f) by Sellers, so long as Sellers are not then in material breach of any of their representations, warranties, covenants or agreements hereunder, by written notice thereof to Purchaser, if there shall have been a material breach of any representation or if such failure could not warranty, or a material breach of any covenant or agreement of Purchaser hereunder, which breaches would reasonably be expected to be cured have, individually or in the aggregate, a Purchaser Material Adverse Effect, and such breach shall not have been remedied within such 20 calendar thirty (30) days and the other party promptly commences an action to cure after receipt by Purchaser of notice in writing from Sellers, specifying the nature of such breach and diligently prosecutes such requesting that it be remedied or Sellers shall not have received adequate assurance of a 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.thirty-day period; or
(cg) by Parent Purchaser or Sellers, if before the purchase of the Shares pursuant to the Offer, (i) the board of trustees directors of the Company or any committee thereof either Seller shall have (x) withdrawn or modified in a manner adverse failed, by June 4, 2007, to Parent or Subsidiary its approval or recommendation approve the execution and delivery of the Merger or the other transactions contemplated this Agreement by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger such Seller and the other transactions contemplated by this Agreement within five business days after the public announcement performance of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orits respective obligations hereunder.
Appears in 2 contracts
Sources: Stock Purchase Agreement (CMS Energy Corp), Stock Purchase Agreement (CMS Energy Corp)
Termination. This Agreement may be terminated terminated, and the Merger Transaction may be abandoned abandoned, at any time before the Effective Time, 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 applicable law) onlyClosing as follows:
(a) by mutual the Company or USAC, by written consent of notice to the partiesother, if any Law or final Order restrains, enjoins or otherwise prohibits or makes illegal the Transaction;
(b) by either Parent or the Company:
, by written notice to USAC, if (i) if USAC has breached any representation, warranty, covenant, agreement or obligation in this Agreement, (ii) such breach results in, or would reasonably be expected to result in, the purchase failure of the Shares pursuant to the Offer shall any condition expressly set forth in Article VII, and (iii) such breach has not have occurred on or prior to the close of business on April 30, 2005 (the “Outside Date“)been cured within 30 days following written notification thereof; provided, however, that if, at the right end of such 30-day period, USAC is endeavoring in good faith, and proceeding diligently, to cure such breach, USAC shall have an additional 30 days in which to effect such cure;
(c) by USAC, by written notice to the Company, if (i) an S&R Party has breached any representation, warranty, covenant, agreement or obligation in this Agreement, (ii) such breach results in, or would reasonably be expected to result in, the failure of any condition expressly set forth in Article VI, and (iii) such breach has not been cured within 30 days following written notification thereof; provided, however, that if, at the end of such 30-day period, the Company is endeavoring in good faith, and proceeding diligently, to cure such breach, the Company shall have an additional 30 days in which to effect such cure;
(d) by USAC or the Company on or after October 31, 2013 (as may be tolled by the pendency of the cure periods set forth in paragraphs (b) and (c) above), in each case by notice to the other, or such later date as USAC and the Company may agree in writing; provided, that USAC cannot terminate under this Agreement pursuant provision if the failure of the Closing to this paragraph (b)(i) shall not be available to any party whose occur is the result of the failure on the part of USAC to perform any of its obligations under this Agreement has been hereunder and the cause of, or resulted in, such purchase Company cannot occurring before such date;
(ii) if any Governmental Authority 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, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) provision 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 Closing to cure such breach within 20 calendar days after receipt occur is the result of the failure on the part of the S&R Parties to perform any of their obligations hereunder; and
(e) by mutual written notice thereof or if such failure could not reasonably be expected to be cured within such 20 calendar days consent of USAC 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 DateCompany.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (USA Compression Partners, LP)
Termination. This Agreement may 20.1 Should either Party fail to comply partially or completely with its obligations hereunder, the other Party shall be terminated entitled to give notice of such failure and to require that such failure be remedied within the Merger may period specified in that notice, which period shall not be abandoned at any time before less than [***]. Should such failure not be remedied within the Effective Timeperiod so specified, whether before or after Subsidiary then the Party who gave notice of such failure shall be entitled to terminate this Agreement. Should termination occur in accordance with the foregoing, [***]. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN ANY CIRCUMSTANCE HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE AND INCREASED COSTS) OR PUNITIVE DAMAGES OR INDIRECT OR INCIDENTAL DAMAGES WHICH MAY ARISE OUT OF, OR BE CONNECTED TO, ANY BREACH OR DEFAULT UNDER ANY TERM, CONDITION, COVENANT, WARRANTY, OR PROVISION OF THIS AGREEMENT, AND WHICH EITHER PARTY WOULD OTHERWISE BE ENTITLED TO UNDER ANY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO ANY CLAIMS SOUNDING IN CONTRACT, TORT, EQUITY OR STATUTE.
20.2 As provided in Article 9.1.4, Buyer and Embraer 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 applicable law) only:
(a) by mutual written consent of the parties;
(b) by either Parent or the 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 in respect of its obligations under this Agreement has been the cause ofrelevant Aircraft. As provided in Article 9.2.2, or resulted in, such purchase not occurring before such date;
(ii) if any Governmental Authority Buyer 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, however, that the right to terminate this Agreement pursuant in respect to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orthe
Appears in 2 contracts
Sources: Purchase Agreement (Skywest Inc), Purchase Agreement (Skywest Inc)
Termination. (a) This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) only:
(a) by mutual written consent of the parties;
(b) by either Parent or the CompanyClosing Date:
(i) if the purchase by mutual consent 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 dateparties hereto;
(ii) by Buyer, by written notice given to the Seller, if any Governmental Authority of the conditions set forth in Article IX shall have become incapable of fulfillment and shall not have been waived by Buyer; or
(iii) by Seller, by written notice given to the Buyer, if any of the conditions set forth in Article X shall have become incapable of fulfillment and shall not have been waived by Seller; or
(iv) by either of the parties hereto:
(A) if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto shall use their best efforts to lift), in each case permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Agreement, and such order, decree or decree, ruling or other action shall have become final and nonappealable; or
(B) if the Closing Date shall not have occurred on or before August 15, 2005; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 breach of this Agreement has caused been the cause of, or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party contained in this Agreementin, 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 Closing to cure occur on or before 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;date; or
(ivv) by Buyer, if the other party shall have breached or failed to perform there has been a breach in any material respect of any representation or warranty by Seller.
(b) In the event of its covenants or other agreements contained in termination pursuant to Section 11.1(a) of this Agreement; provided, however, if a breach or failure is curable on or before the Outside Date, then only upon the failure of written notice thereof shall forthwith be given to the other party to cure this Agreement and this Agreement shall terminate, without further action by either of the parties hereto. If this Agreement is terminated as provided herein, no party hereto shall have any liability or further obligation to any other party to this Agreement resulting from such breach within 20 calendar days after receipt termination except (A) that the provision of written notice thereof or if such breach or failure could not reasonably be expected to be cured within such 20 calendar days this Section 11.1(b) and the other proviso of Section 11.1(a)(iv)(B) of this Agreement shall remain in full force and effect and (B) no 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 waives any claim or right against a breaching party to the Offerextent that such termination results from the breach by a party hereto of any of its representations, (i) the board of trustees of the Company warranties, covenants or any committee thereof shall have (x) withdrawn or modified agreements set forth in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Allion Healthcare Inc), Asset Purchase Agreement (Allion Healthcare Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 receipt of the Company Stockholder Approval or the Parent Shareholder Approval (if required by applicable law) onlyexcept as otherwise expressly noted), as follows:
(a) by mutual written consent agreement of each of Parent and the parties;Company; or
(b) by either Parent or the Company, if:
(i) if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on before April 30, 2005 2016 (the “Outside Date“”); provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 8.1(b)(i) shall not be available to any party whose if the failure of such party (and in the case of Parent, including the failure of Merger Sub) to perform any of its obligations under this Agreement has been the a principal cause of, or resulted in, such purchase not occurring the failure of the Merger to be consummated on or before such date; provided further that if the waiting period applicable to the transactions contemplated by the Agreement under the HSR Act shall not have expired or been terminated or any other mandatory waiting period or required consent under any other applicable Antitrust Laws that is a condition to the party’s obligations to effect the Merger under Section 7.1(b) shall not have expired or been obtained, then the Outside Date shall be extended until August 31, 2016;
(ii) if any Governmental Authority of competent jurisdiction shall have issued an order, decree or ruling Order or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Agreement, and such order, decree or ruling Order or other action shall have become final and nonappealablenon-appealable; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 8.1(b)(ii) shall not be available to a party if the issuance of such final, non-appealable Order was primarily due to the failure of such party (and in the case of Parent, including the failure of Merger Sub) to perform any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;of its obligations under this Agreement; or
(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 Company Stockholder Approval shall not be disregarded)have been obtained at a duly held Company Stockholder Meeting, shall not be true or at any adjournment or postponement thereof at which this Agreement and correctthe transactions contemplated hereby have been voted upon, with only such exceptions as, individually or in the aggregate, have not had a Material Adverse Effect; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(iii) shall not be available to the Company if such the failure to be true and correct is curable on or before obtain such Company Stockholder Approval was primarily due to the Outside Date, then only upon the Company’s failure to perform any 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 Dateits obligations under this Agreement;
(iv) the Parent Shareholder Approval shall not have been obtained at a duly held Parent Shareholder Meeting, or at any adjournment or postponement thereof at which this Agreement and the transactions contemplated hereby have been voted upon, provided, however, that the right to terminate this Agreement under this Section 8.1(b)(iv) shall not be available to Parent if the other party failure to obtain such Parent Shareholder Approval was primarily due to Parent’s failure to perform any of its obligations under this Agreement; or
(c) by the Company, if:
(i) Parent or Merger Sub shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained set forth in this Agreement; provided, however, if a which breach or failure is curable to perform (x) would, or would reasonably be expected to, result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b) and (y) cannot be cured on or before the Outside DateDate or, then only upon the failure if curable, is not cured by Parent within twenty (20) days of the other party to cure such breach within 20 calendar days after receipt by Parent of written notice thereof or if of such breach or failure could failure; provided that the Company shall not reasonably have the right to terminate this Agreement pursuant to this Section 8.1(c)(i) if the Company is then in breach of any of its respective representations, warranties, covenants or agreements set forth in this Agreement such that the conditions set forth in either Section 7.2(a) or Section 7.2(b) would not be expected satisfied;
(ii) the Company Board has determined to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal to the extent permitted by, and subject to the terms and conditions of Section 6.5; provided, that the right to terminate under this Section 8.1(c)(ii) shall not be cured within such 20 calendar days and available after the other party promptly commences an action to cure after receipt of notice the Company Stockholder Approval; provided, further, that any such purported termination pursuant to this Section 8.1(d)(ii) shall be void and diligently prosecutes of no force or effect unless the Company has complied with Section 8.3(a); provided, further, however, that in the event of such cure termination, the Company substantially concurrently enters into such Alternative Acquisition Agreement; or
(iii) if (x) the Parent Board authorizes, approves or recommends a Parent Acquisition Proposal; (y) Parent or any Parent Subsidiary enters into a written Contract relating to completion as promptly as practicable but in no event later a Parent Acquisition Proposal (other than the Outside Datea confidentiality agreement); or (z) Parent or any Parent Subsidiary consummates any transaction regarding a Parent Acquisition Proposal.
(cd) by Parent if before the purchase of the Shares pursuant to the OfferParent, if:
(i) the board Company shall have breached or failed to perform in any material respect any of trustees its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (x) would, or would reasonably be expected to, result in a failure of a condition set forth in Section 7.2(a) or Section 7.2(b) and (y) cannot be cured on or before the Outside Date or, if curable, is not cured by the Company within twenty (20) days of receipt by the Company of written notice of such breach or failure; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(d)(i) if Parent or Merger Sub are then in breach of any of their respective representations, warranties, covenants or agreements set forth in this Agreement such that the conditions set forth in either Section 7.3(a) or Section 7.3(b) would not be satisfied, or
(ii) prior to the receipt of the Company Stockholder Approval, (A) a Company Adverse Recommendation Change shall have occurred, (B) a material and willful breach of any of the Company’s obligations under Section 6.5 by (directly or indirectly) the Company’s or any Company Subsidiary’s officers, directors or Representatives shall have occurred or (C) the Company or any committee thereof Company Subsidiary or the Company Board shall have approved, recommended, adopted or entered into, or publicly announced its intention to approve, recommend, adopt or enter into, an Alternative Acquisition Agreement (xother than an Acceptable Confidentiality Agreement) withdrawn whether or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated not permitted by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orSection 6.5.
Appears in 2 contracts
Sources: Merger Agreement (Westport Innovations Inc), Merger Agreement (Fuel Systems Solutions, Inc.)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer matters presented in connection with the Merger by the stockholders of Target or after Acquiror, in the Company Shareholder Approval (if required by applicable law) onlyfollowing manner:
(a) by mutual written consent duly authorized by the boards of the partiesdirectors of Acquiror and Target;
(b) by either Parent Acquiror or the Company:
Target, if, (i) if the purchase without fault of the Shares pursuant to terminating party, the Offer Closing shall not have occurred on or prior to the close of business on April 30before January 31, 2005 2002 (the “Outside Date“); provided, howeverthat a 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 paragraph clause (b)(i) shall not be available to any party whose action or willful failure to perform any of its obligations under this Agreement act has been the a principal cause of, of or resulted in, such purchase not occurring in the failure of the Closing to occur on or before such date;
date and such action or failure to act constitutes a breach of this Agreement), (ii) if any Governmental Authority 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 permanent injunction or other action order of a court or other competent authority preventing the consummation of the Merger shall have become final and nonappealablenonappealable or (iii) the board of directors of either Acquiror or Target, in the exercise of its fiduciary duties, fails to recommend or withdraws, or modifies or changes in a manner adverse to Acquiror (in the case of an action by the board of directors of Target ) or Target, (in the case of an action by the board of directors of Acquiror), as applicable, its approval or recommendation of this Agreement or the Merger;
(c) by Target, if, (i) any representation or warranty of Acquiror set forth in this Agreement and not qualified by its terms as to materiality shall have been untrue when made in any material respect (or any representation or warranty qualified as to materiality shall have been untrue in any respect when made), or (ii) Acquiror shall materially breach any obligation or agreement hereunder in a manner causing any condition precedent to the Closing not to be satisfied and such breach shall not have been cured within 30 days of receipt by Acquiror of written notice of such breach; provided, however, that the right to terminate this Agreement pursuant to by Target under this paragraph (b)(iic) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted Target where Target is at that time in such action by such Governmental Authoritymaterial breach of this Agreement;
(iiid) if the representations and warranties by Acquiror, if, (i) any representation or warranty of the other party contained Target set forth in this Agreement, disregarding all qualifications Agreement and exceptions contained therein relating not qualified by its terms as 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 been untrue when made 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 representation or warranty qualified as to materiality shall have (x) withdrawn or modified been untrue in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SECrespect when made) or (ii) Target shall materially breach any obligation or agreement hereunder in a manner causing any condition precedent to the board Closing not to be satisfied and such breach shall not have been cured within 30 days of trustees receipt by Target of written notice of such breach; provided, that the right to terminate this Agreement by Acquiror under this paragraph (d) shall not be available to Acquiror where Acquiror is at that time in material breach of this Agreement; and
(e) by Target, if the average of the Company or any committee thereof shall have resolved to take any daily high and low trade prices of Acquiror Common Stock on the foregoing actions; orNasdaq National Market for the 15 trading days ending on the trading date that is one day before the Effective Time, weighted based on the volume of trades during each of those 15 trading days, is less than $2.00.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Capsule Communications Inc De), Merger Agreement (Covista Communications Inc)
Termination. (a) This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after Closing by the Company Shareholder Approval (if required by applicable law) only:
(a) by mutual written consent of the parties;SE Corp and SEP.
(b) This Agreement may be terminated at any time prior to the Closing by either Parent SE Corp or the Companyby SEP:
(i) by 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 purchase of the Shares pursuant to the Offer shall Closing has not have occurred on or prior to the close of business on April 30before December 31, 2005 2015 (the “Outside Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.13(b)(i) shall not be available to any party whose SE Corp or to SEP where the failure of SE Corp or the failure of SEP, as applicable, to perform any of fulfill its obligations under this Agreement has been the cause of, caused or resulted in, such purchase not occurring in the failure of the Closing to occur on or before such date;the Outside Date; or
(ii) by 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 any Governmental Authority court of competent jurisdiction or a Government Entity shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting any material part of the transactions contemplated by this Agreement Transactions and such order, decree or decree, ruling or other action shall have become final and nonappealable; provided, however, provided that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 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 party whose failure to comply with Section 6.5 of its obligations under this Agreement 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 Agreementorder, disregarding all qualifications and exceptions contained therein relating to materiality decree, ruling 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 Dateaction.
(c) by Parent if before the purchase of the Shares pursuant This Agreement may be terminated at any time prior to the OfferClosing by SE Corp if there has been a breach of any representation, warranty, covenant or agreement made by SEP in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that the conditions set forth in Section 6.1(a) or Section 6.1(b) would not be satisfied, and such breach or condition is not curable or, if curable, is not cured prior to the earlier of (i) 30 calendar days after written notice thereof is given by SE Corp to SEP and (ii) one Business Day prior to the board Outside Date; provided that SE Corp is not then in material breach of trustees this Agreement so as to cause any of the Company conditions set forth in Section 6.2(a), Section 6.2(b) or Section 6.2(d) not to be satisfied.
(d) This Agreement may be terminated at any committee thereof shall have (x) withdrawn time prior to the Closing by SEP if there has been a breach of any representation, warranty, covenant or modified agreement made by SE Corp in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied, and such breach or condition is not curable or, if curable, is not cured prior to the earlier of (yi) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business 30 calendar days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or written notice thereof is given by SEP to SE Corp and (ii) one Business Day prior to the board Outside Date; provided that SEP is not then in material breach of trustees of the Company or any committee thereof shall have resolved this Agreement so as to take cause any of the foregoing actions; orconditions 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 respective Affiliates, or 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 Section 8.13(e) (and any related definitional provisions set forth in Article I). Notwithstanding the foregoing, nothing in this Section 8.13(e) shall relieve SE Corp or SEP from liability for any willful breach of this Agreement that arose prior to such 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 may be abandoned at any time before prior to the Effective Time, 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 Stockholder Approval (if required by applicable law) only:the DGCL):
(a) by mutual written consent of Purchaser and the partiesCompany;
(b) by either Parent Purchaser or the Company:Company if
(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 Governmental Authority 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 acceptance for payment of, or payment for, Shares pursuant to the Offer or the Merger and such order, decree or ruling or other action shall have become final and nonappealable; or (ii) the Merger shall not have been consummated by June 30, 1999.
(c) by the Purchaser if as the result of a failure of an Offer Condition to be satisfied, Merger Sub shall not have accepted for payment any Shares pursuant to the Offer on or prior to the Outside Date; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 9.1(c) shall not be available to any party whose failure Purchaser if (x) Merger Sub shall have breached its obligations under the next to comply with the last sentence of Section 6.5 has caused 1.1(a) hereof or primarily resulted in such action by such Governmental Authority;
(iiiy) 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 satisfy an Offer Condition is curable on caused by or before the Outside Date, then only upon results from the failure of the other party to cure such breach within 20 calendar days after receipt of written notice thereof Purchaser 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 Merger Sub to perform in any material respect any of its covenants or other agreements contained in this Agreement; provided, however, if a breach Agreement 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 any representation or warranty of written notice thereof Purchaser or if such breach or failure could not reasonably be expected Merger Sub contained herein to be cured within such 20 calendar days true and correct in any material respect. As used herein, the other party promptly commences an action "Outside Date" shall mean the later of (A) the 30th day after the initial expiration date of the Offer or (B) the date that all conditions to cure after receipt the Offer set forth in the Antitrust Condition and paragraph (a) of notice and diligently prosecutes such cure Exhibit A, the satisfaction of which involve compliance with or otherwise relate to completion as promptly as practicable any antitrust or competition laws or regulations (including any enforcement thereof), have been satisfied for a period of two business days, but in any event no event later than the Outside Date.
(c) by Parent if before 60th day after the purchase initial expiration date 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Merger Agreement (Lyondell Petrochemical Co), Merger Agreement (Lyondell Petrochemical Co)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval by the Offer or after stockholders of the Company Shareholder Approval (if required by applicable law) onlyof the matters presented in connection with the Merger:
(a) by mutual written consent of Parent and the partiesCompany in a written instrument, if the Board of Directors of each so determines by a vote of a majority of the members of its entire Board;
(b) by either Parent or the Company:
Company upon written notice to the other party (i) if 30 days after the purchase date on which any request or application for a regulatory approval shall have been denied or withdrawn at the request or recommendation of the Shares pursuant Governmental Entity which must grant such regulatory approval, unless within the 30-day period following such denial or withdrawal the Parties agree to file, and have filed with the Offer shall not have occurred on applicable Governmental Entity, a petition for rehearing or prior to the close of business on April 30, 2005 (the “Outside Date“)an amended application; provided, however, that no party shall have the right to terminate this Agreement pursuant to this paragraph Section 8.1(b), if such denial or request or recommendation for withdrawal shall be due to the failure of the party seeking to terminate this Agreement to perform or observe the covenants and agreements of such party set forth herein;
(b)(ic) by either Parent or the Company if the Merger shall not have been consummated on or before July 31, 2006, unless the failure of the Closing to occur by such date shall be available due to any the failure of the party whose failure seeking to terminate this Agreement to perform any or observe the covenants and agreements of such party set forth herein;
(d) by either Parent or the Company (provided that the terminating party is not in breach of its obligations under this Agreement has Section 6.3 hereof) if the approval of the stockholders of the Company hereto required for the consummation of the Merger shall not have been obtained by reason of the cause of, failure to obtain the required vote at a duly held Company Stockholders Meeting or resulted in, such purchase not occurring before such dateat any adjournment or postponement thereof;
(iie) if by either Parent or the Company (provided that the terminating party is not then in breach of any Governmental Authority shall have issued an orderrepresentation, decree or ruling or taken any other action permanently enjoiningwarranty, restraining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree or ruling covenant or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party agreement 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 asherein that, individually or in the aggregate, would give the other party the right to terminate this Agreement) if there shall have not been a breach of any of the representations or warranties set forth in this Agreement on the part of the other party, if such breach, individually or in the aggregate, has had or is likely to have a Material Adverse EffectEffect on the breaching party, and such breach shall not have been cured within 30 days following receipt by the breaching party of written notice of such breach from the other party hereto or such breach, by its nature, cannot be cured prior to the Closing;
(f) by either Parent or the Company (provided that the terminating party is not then in breach of any representation, warranty, covenant or other agreement contained herein that, individually or in the aggregate, would give the other party the right to terminate this Agreement) if there shall have been a breach of any of the covenants or agreements set forth in this Agreement on the part of the other party, if such breach, individually or in the aggregate, has had or is likely to have a Material Adverse Effect on the breaching party, and such breach shall not have been cured within 30 days following receipt by the breaching party of written notice of such breach from the other party hereto or such breach, by its nature, cannot be cured prior to the Closing;
(g) by Parent, if the management of the Company or its Board of Directors, for any reason, (i) fails to call and hold a Company Stockholders Meeting to consider and approve this Agreement and the transactions contemplated hereby, (ii) fails to recommend to stockholders the approval of this Agreement and the transactions contemplated hereby, (iii) fails to oppose any third party proposal that is inconsistent with the transactions contemplated by this Agreement other than as expressly permitted by Section 5.4 of this Agreement, or (iv) violates Section 5.4 of this Agreement;
(h) by Parent or the Company if the Company has complied with Section 5.4 above, and has given written notice to Parent that the Company has agreed to enter into a Company Superior Proposal; provided, however, if that such failure to termination under this Section 8.1(h) shall not be true effective unless and correct is curable on or before until 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 Company shall have breached or failed to perform in any material respect any complied with breakup fee provisions 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 DateSection 8.2 below.
(ci) by Parent Company, if before the purchase all of the Shares pursuant holders of the Series C Preferred Stock do not convert all such stock to Parent Common Stock prior 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orStockholders Meeting;
Appears in 2 contracts
Sources: Merger Agreement (Warp Technology Holdings Inc), Merger Agreement (Infonow Corp /)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 applicable law) only:
(a) by mutual written consent of Iveda, if in its sole discretion it determines not to move forward with the partiestransactions contemplated by this Agreement;
(b) by either Parent or the Company:
(i) if the purchase mutual written consent 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 dateIveda and MegaSys;
(iic) by Iveda or MegaSys, by giving written notice to the other party, if any a court of competent jurisdiction or other Governmental Authority Entity shall have issued an a nonappealable final order, decree or ruling or taken any other action action, in each case having the effect of permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement and Exchange, except, if such party relying on such order, decree or ruling or other action shall not have become final and nonappealable; providedcomplied with its respective obligations under Section 4.4 or Section 5.3 of this Agreement, however, that as the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authoritycase may be;
(iiid) by Iveda or MegaSys, by giving written notice to the other party/parties, if the representations and warranties other party is in material breach of the any representation, warranty, or covenant of such 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 breach shall not be disregarded)have been cured, if subject to cure, within 10 business days following receipt by the breaching party of written notice of such breach by the other party;
(e) by Iveda, by giving written notice to MegaSys, if the Closing 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 occurred on or before the Outside DateMay 15, then only upon 2011 by reason of the failure of any condition precedent under Section 6.1 or Section 6.2 (unless the other party to cure such failure results primarily from a breach within 20 calendar days after receipt by Iveda of written notice thereof any representation, warranty, 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 covenant 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 Iveda contained in this AgreementAgreement or Iveda’s failure to fulfill a condition precedent to Closing or other default); providedand
(f) by MegaSys, howeverby giving written notice to Iveda, if a breach or failure is curable the Closing shall not have occurred on or before the Outside DateMay 15, then only upon 2011 by reason of the failure of any condition precedent under Section 6.1 or Section 6.3 (unless the other party to cure such failure results primarily from a breach within 20 calendar days after receipt by MegaSys of written notice thereof any representation, warranty, 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 covenant of notice and diligently prosecutes such cure to completion as promptly as practicable but MegaSys contained 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of or MegaSys’ failure to fulfill a Takeover Proposal (including the filing of a Schedule 13D with the SEC) condition precedent to Closing or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orother default).
Appears in 2 contracts
Sources: Share Exchange Agreement (Iveda Solutions, Inc.), Share Exchange Agreement (Iveda Solutions, Inc.)
Termination. This Agreement Employee's employment hereunder shall be terminated upon Employee's death and may be terminated and the Merger may be abandoned at any time before the Effective Time, 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 applicable law) onlyas follows:
(a) Effective upon the giving of written notice by mutual written consent the Board of Directors of Company to Employee in the event that Employee hereafter (i) shall willfully fail to comply with any of the parties;material terms of this Agreement, (ii) shall fail to adequately perform his duties hereunder, (iii) shall be diagnosed with chronic alcoholism or any other form of addiction which substantially impairs the Employee's ability to perform his duties hereunder, or (iv) shall willfully engage, in his capacity as an executive or officer of Company, in gross misconduct injurious to the Company, and a vote to such effect shall have been adopted by not less than a majority of the directors (including Employee) then in office of Company, after reasonable notice to Employee and an opportunity for his to be heard before such Board. For purposes of this Section 6(a), no act, or failure to act, on Employee's part shall be considered "willful" unless done, or omitted to be done, by Employee not in good faith and without reasonable belief that his action(s) or omission(s) were in the best interests of Company.
(b) Upon not less than sixty (60) days' written notice by either Parent or the Company:
Board of Directors of Company to Employee in the event that (i) if the purchase of the Shares pursuant Board shall have received a written statement from a reputable independent physician to the Offer effect the Employee shall have become so incapacitated as to be unable to resume, within the ensuing twelve (12) months his "essential functions" of employment after reasonable accommodation and without undue hardship, hereunder by reason of physical or mental illness or injury, or (ii) employee shall not have occurred on substantially performed his "essential functions" of employment after reasonable accommodation and without undue hardship, hereunder for six (6) consecutive months (exclusive of any vacation permitted under Section 5 (d) hereof) by reason of any such physical 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 Datemental illness.
(c) by Parent If, within thirty (30) days' after any notice of termination pursuant to Sections 6(a) or 6(b) hereof is given, Employee informs Company in writing that a dispute exists concerning such termination, such termination shall be deemed to have occurred only upon the date on which such dispute is finally resolved. During the pendency of any such dispute and until such dispute is finally resolved, Company shall continue to pay Employee the Base Salary in effect at the date of such notice of termination pursuant to Section 6(a) or 6(b). If such dispute results in a final determination to the effect that Company did not have a proper basis for such termination, Company shall promptly pay to Employee any other payments to which Employee would have been entitled to receive had Employee's employment hereunder not been improperly terminated, and if before such dispute results in a final determination to the purchase of effect that Company did have a proper basis for such termination, the Shares Base Salary pursuant to the Offerpreceding sentence shall cease and terminate upon the date of such final determination.
(d) In the event of the termination of Employee's employment pursuant to Section 6(b) hereof, for the longer of one year following any such termination or the balance of the Term (as if such termination had not occurred), Company shall (i) continue to pay Employee the board Base Salary in effect at the time of trustees such termination less the amount, if any, then payable to Employee under any disability benefits 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 or the other transactions contemplated by this AgreementCompany, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) pay to Employee at the board of trustees end of the Company fiscal year in which his termination occurred, the amount which would have been payable to Employee pursuant to Company's bonus pool for the entire year in which such termination occurred pro-rated to the effective date of termination and (iii) maintain at its expense, all major medical and other health, accident, life or any committee thereof shall have resolved other disability plans and programs in which Employee was entitled to take any participate immediately prior to such termination.
(e) In the event of the foregoing actions; ortermination of Employee's employment as a result of Employee's death, Company shall (i) pay to Employee's estate his Base Salary through the date of his death, (ii) pay to Employee's estate at the end of the fiscal year in which Employee's death occurred, the amount which would have been payable to Employee pursuant to Company's bonus pool for the entire fiscal year in which his death occurred pro-rated to the date of his death and (iii) for the longer of one year following Employee's death or the balance of the Term (as if such termination had not occurred), maintain, at Company's expense, for the continued benefit of Employee's family, all major medical and other health, accident, life or other disability plans and programs in which Employee was entitled to participate immediately prior to his death. Company shall also pay to Employee's heirs a lump-sum death benefit equal to 50% of any key employee life insurance obtained by Company on the life of Employee.
Appears in 2 contracts
Sources: Employment Agreement (Network Connection Inc), Employment Agreement (Network Connection Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Timedate of Closing, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to any approval by the Offer or after the Company Shareholder Approval (if required by applicable law) onlyshareholders of High Valley:
(a) by mutual written consent of the partiesPEC and High Valley;
(b) by PEC if High Valley shall have failed to comply in any material respect with any of its covenants or agreements contained in this Agreement required to be complied with by High Valley prior to the date of such termination, which failure to comply has not been cured within ten business days following receipt by High Valley of notice of such failure to comply;
(c) by High Valley if PEC shall have failed to comply in any material respect with any of its covenants or agreements contained in this Agreement required to be complied with by PEC prior to the date of such termination, which failure to comply has not been cured within ten business days following receipt by PEC of notice of such failure to comply;
(d) by either Parent PEC or the Company:
High Valley if (i) if the purchase of the Shares pursuant to the Offer shall Merger has not have occurred been effected on or prior to the close of business on April September 30, 2005 (the “Outside Date“)2000; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(i) clause shall not be available to any party whose failure to perform fulfill any obligation of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such the failure of the Merger to have occurred on or prior to the aforesaid date;
, or (ii) if any Governmental Authority court of competent jurisdiction or any governmental, administrative or regulatory authority, agency or body 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 decree, ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iiie) by either PEC or High Valley if the representations and warranties of there has been (i) a material breach by the other party contained in this Agreement, disregarding all qualifications and exceptions contained therein relating of any representation or warranty that is not qualified as 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 ii) 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 breach by the other party of any representation or warranty that is qualified as to cure such materiality, in each case which breach within 20 calendar days after receipt of written notice thereof or if such failure could has not reasonably be expected to be been 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after following receipt by the public announcement breaching party of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees notice of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orbreach;
Appears in 2 contracts
Sources: Merger Agreement (Patterson Energy Inc), Merger Agreement (Patterson Energy Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing by:
(a) by the mutual written consent of the partiesSellers and Purchaser;
(b) either Sellers or Purchaser, by either Parent or written notice to the Company:
(i) other, if the purchase of the Shares pursuant to the Offer shall Closing has not have occurred on or prior to by the close of business on April June 30, 2005 2005, and (i) the “Outside Date“); provided, however, that failure to consummate the right to terminate transactions contemplated hereby on or before such date did not result from the failure by the party seeking termination of this Agreement pursuant to this paragraph fulfill any undertaking or commitment provided for herein that is required to be fulfilled prior to the Closing and (b)(iii) shall the party seeking termination is not be available to any party whose failure to perform any otherwise in material breach of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such datehereunder;
(iic) either Sellers or Purchaser, by written notice to the other, if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement hereby and such order, decree or decree, ruling or other action shall have become final and nonappealablenon-appealable; provided, however, that the right party seeking to terminate this Agreement pursuant to this paragraph (b)(iiSection 11.1(c) shall have complied with Sections 3.3 and 6.4(b) hereof, and with respect to other matters not be available covered thereby, shall have used commercially reasonable efforts to any party whose failure to comply with Section 6.5 has caused remove such injunction order or primarily resulted in such action by such Governmental Authoritydecree;
(iiid) Purchaser, by written notice to Sellers, at any time on or before 10:00 a.m. Eastern Standard Time on April 1, 2005, or if earlier, the representations and warranties date which Purchaser has completed its due diligence investigation of the other party contained Purchased Assets, 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 event that Purchaser in Section 4.6(i), for which connection with such qualifiers shall not be disregarded)investigation, shall not have discovered any fact, circumstance, transaction or occurrence of which Purchaser had no notice as of the date hereof and as a result of which Purchaser would be true entitled (and correct, with only such exceptions as, individually or in Purchaser would otherwise have the aggregate, have not had a Material Adverse Effectright) to decline to consummate the transactions contemplated hereby based solely upon Section 9.3(f) hereof; provided, however, if that Purchaser may not terminate this Agreement pursuant to this Section 11.1(d) unless Purchaser shall have provided Sellers with written notice of, and a reasonable opportunity to cure the breach (or deemed breach) of any representation or warranty as a result of which Purchaser would be entitled to rely on such failure Section 9.3(f) in declining to be true and correct consummate such transactions, or is curable not satisfied with its findings; or
(e) Purchaser or Sellers, by written notice to the other party (or parties, as applicable), at any time after June 30, 2005, in the event that Purchaser has not executed an agreement with the Local Union meeting the description set forth in Section 9.3(h) hereof 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 Agreementdate; provided, however, that Purchaser shall not be entitled to terminate this Agreement pursuant to this Section 11.1(e) if a breach or failure is curable on or before the Outside DatePurchaser fails to use all reasonable efforts, 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 acting as promptly as practicable but and in no event later than good faith, to enter into an agreement with the Outside Date.
(c) by Parent if before Local Union on 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 or the other transactions terms contemplated by this Agreement, (ySection 9.3(h) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orhereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Titan International Inc), Asset Purchase Agreement (Titan International Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 applicable law) onlyDate:
(a) by the mutual written consent of MPX and iAnthus, duly authorized by the partiesboard of directors of each;
(b) by iAnthus if:
(i) prior to the approval by the MPX Shareholders of the MPX Arrangement Resolution, (A) the MPX Board shall make an MPX Change in Recommendation or (B) MPX enters into an agreement (other than a confidentiality and standstill agreement that complies with Section 6.1(e)(ii)) with respect to any MPX Acquisition Proposal; or
(ii) MPX breaches its obligations under Section 6.1 or Section 6.2 in any material respect;
(c) by either Parent iAnthus or MPX if the MPX Meeting shall have been held and completed and the MPX Arrangement Resolution shall not have been approved by the MPX Shareholders in accordance with the Interim Order, provided that MPX shall not be entitled to terminate this Agreement pursuant to this Section 7.2(c) if the failure to obtain the approval of the MPX Shareholders to the MPX Arrangement Resolution has been caused by, or is the result of, a breach by MPX of any of its representations or warranties or the Companyfailure of MPX to perform any of its covenants or agreements under this Agreement;
(d) by either iAnthus or MPX if the Effective Date shall not have occurred by the Completion Deadline, provided however:
(i) if the purchase failure of the Shares pursuant Effective Date to occur by such date has been caused by, or is the Offer result of, a breach by MPX of any of its representations or warranties or the failure of MPX to perform any of its covenants or agreements under this Agreement, then MPX shall not have occurred on or prior to the close of business on April 30, 2005 (the “Outside Date“); provided, however, that the right be entitled to terminate this Agreement pursuant to this paragraph Section 7.2(d); or
(b)(iii) shall not be available if the failure of the Effective Date to occur by such date has been caused by, or is the result of, a breach by iAnthus of any party whose of its representations or warranties, the failure of iAnthus to perform any of its obligations covenants or agreements under this Agreement has been the cause of, or resulted in, such purchase then iAnthus shall not occurring before such date;
(ii) if any Governmental Authority 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, however, that the right be entitled to terminate this Agreement pursuant to this paragraph Section 7.2(d);
(b)(iij) shall by iAnthus or MPX if after the date of this Agreement, any applicable Law is enacted, made, enforced or amended, as applicable, that makes the consummation of the Arrangement illegal or otherwise prohibits or enjoins MPX or iAnthus from consummating the Arrangement, and such applicable Law has, if applicable, become final and non-appealable, provided that the Party seeking to terminate this Agreement pursuant to this Section 7.2(e) has used its commercially reasonable efforts to, as applicable, appeal or overturn such Law or otherwise have it lifted or rendered non- applicable in respect of the Arrangement; by MPX if MPX proposes to enter into any agreement, arrangement or understanding in respect of an MPX Superior Proposal in compliance with Section 6.1 and Section 6.2, provided that MPX pays the MPX Termination Payment to iAnthus contemporaneously with such termination; by iAnthus, if MPX breaches any representation or warranty of MPX set forth in this Agreement which breach would cause the condition in Section 5.2(a) not to be available to any party whose failure satisfied or MPX fails to comply with Section 6.5 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 set forth in this Agreement; providedAgreement (other than the covenants in Section 6.1 and Section 6.2) that would cause the condition in Section 5.2(c) not to be satisfied, however, if a and such breach or failure is curable on incapable of being cured or before is not cured in accordance with the Outside Dateterms of Section 5.4; provided that any wilful breach shall be deemed incapable of being cured and iAnthus is not then in breach of this Agreement so as to cause any condition in Section 5.3(a) or Section 5.3(c) not to be satisfied; by MPX, then only upon if iAnthus breaches any representation or warranty of iAnthus set forth in this Agreement which breach would cause the failure condition in Section 5.3(a) not to be satisfied or iAnthus fails to comply with any of its covenants set forth in this Agreement that would cause the other party condition in Section 5.3(c) not to cure such breach within 20 calendar days after receipt of written notice thereof or if be satisfied, and such breach or failure could is incapable of being cured or is not reasonably cured in accordance with the terms of Section 5.4; provided that any wilful breach shall be expected deemed incapable of being cured and MPX is not then in breach of this Agreement so as to cause any condition in Section 5.2(a) or Section 5.2(c) not to be cured within satisfied; by iAnthus, if there has occurred a Material Adverse Effect with respect to MPX after the date of this Agreement; or by MPX, if there has occurred a Material Adverse Effect with respect to iAnthus after the date of this Agreement; provided that any termination by a Party hereto in accordance with paragraphs (b) to (j) above shall be made by such 20 calendar days and Party delivering written notice thereof to 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 Party hereto prior to the Offer, (i) Effective Date and specifying therein in reasonable detail the board of trustees of the Company matter or any committee thereof shall have (x) withdrawn or modified in a manner adverse matters giving rise to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orsuch termination right.
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement
Termination. (a) This Agreement may be terminated and the Merger may be transaction contemplated herein abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(ai) by By mutual written consent agreement of the parties;
(bii) by either Parent or the Company:
(i) By Seller, if the purchase any of the Shares pursuant conditions set forth in Section 14 shall have become incapable of fulfillment prior to the Offer Closing Date or such earlier date as may be specifi-cally provided for the performance thereof (as the same may be extended) through no fault of Seller and the same shall not have occurred on been waived by Seller;
(iii) By Buyer, if any of the conditions set forth in Section 13 shall have become incapable of fulfillment prior to the Closing Date or such earlier date as may be specifically provided for the performance thereof (as the same may be extended) through no fault of Buyer and the same shall not have been waived by Buyer;
(iv) By either Seller or Buyer in the event of a material breach by the other party of any of its representations and warranties contained in this Agreement or failure to comply in any material respect with any of the other covenants or agreements contained in this Agreement to be complied with or performed by such party at or prior to the close Closing;
(v) By Buyer, in the exercise of business its sole discretion, within the Feasibility Period. Neither Seller nor Buyer may claim termination of this Agreement or pursue any other remedy referred to in this Agreement on April 30account of a breach of a representation, 2005 covenant or warranty by the other or failure of a condition, without first giving such other party written notice of such breach and not less than ten (the “Outside Date“)10) days within which to cure such breach. The Closing shall be postponed during such cure period, if necessary, to afford such opportunity to cure; provided, however, that unless the parties agree otherwise, in no event shall the Closing occur other than on the last day of a month effective as of midnight on such day. In any event, unless the parties hereto agree otherwise, postponement of closing to cure a breach shall be granted only once.
(b) In the event Seller has the right to terminate this Agreement pursuant to this paragraph under Sections 23(a)(ii) or (b)(iiv) shall not be available to any party whose failure to perform any as a result of a default by Buyer in its obligations under this Agreement has been the cause ofrepresentations, warranties, covenants or resulted inagreements hereunder, such purchase not occurring before such date;Buyer and Seller acknowledge and agree as follows: SELLER SHALL BE ENTITLED TO TERMINATE THIS AGREEMENT AND TO RETAIN THE DEPOSIT AS SELLER’S SOLE AND EXCLUSIVE REMEDY AND ALL ACCRUED INTEREST THEREON AS LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGING AND AGREEING THAT THE AMOUNT OF DAMAGES WHICH SELLER MAY INCUR AS A RESULT OF SUCH TERMINATION MAY BE DIFFICULT TO ASCERTAIN AND THAT THE DEPOSIT IS A REASONABLE AND FAIR ESTIMATE THEREOF, AFTER WHICH THE PARTIES SHALL HAVE NO FURTHER RIGHTS OR OBLIGATIONS HEREUNDER. Seller’s Initials Buyer’s Initials
(iic) if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting In the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that event Buyer has the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 under Sections 23(a)(iii) 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 as a result of a default by Seller in its representations, warranties, covenants or agreements hereunder, Buyer shall have breached or failed the right either 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) waive the board of trustees of the Company condition or any committee thereof shall have (x) withdrawn covenant or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger breach at issue and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D proceed with the SEC) transaction on the terms contemplated herein or (ii) seek specific performance of Seller’s obligations hereunder or (iii) to terminate this Agreement and secure the board of trustees return of the Company or Deposit and any committee thereof accrued interest thereon, after which neither party shall have resolved any further rights or obligations hereunder.
(d) In the event this Agreement is terminated pursuant to take Sections 23(a)(i) or (vi) or pursuant to Section 23(a)(v), then the entire Deposit and any accrued interest thereon shall immediately be refunded and returned to Buyer, after which neither party shall have any further rights or obligations hereunder.
(e) In the event the transaction contemplated hereby is not closed for any reason other than a breach by Buyer or Seller, each party shall pay one half of all escrow cancellation fees and title charges. In the foregoing actions; orevent the transaction contemplated hereby is not closed as a result of a breach by Seller or Buyer, then the breaching party shall pay all escrow cancellation fees and title charges. In no event shall either party be liable to the other for consequential damages or incidental damages.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Emeritus Corp\wa\), Purchase and Sale Agreement (Emeritus Corp\wa\)
Termination. This Merger Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to Time of the Offer or after the Company Shareholder Approval (if required by applicable law) onlyMerger:
(a) by mutual written consent of Cirracor and the partiesCompany;
(b) by either Parent Cirracor or the 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 Governmental Authority 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 Merger, and such order, decree or decree, ruling or other action shall have become final and nonappealable;
(c) by Cirracor, if the Merger shall not have been consummated on or before December 31, 2006; providedprovided that such failure has not occurred as a proximate result of the failure of Cirracor to perform its obligations under this Merger Agreement required to be performed at, howeveror prior to, that the right to Effective Time of the Merger, in which event Cirracor may not terminate this Merger Agreement pursuant to this paragraph (b)(ii) shall provision for a period of 10 days following its cure of such failure; provided, further, that if the Company requests an extension of the Closing after this date and Cirracor consents in writing, then Cirracor may not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in terminate this Merger Agreement under this provision until the expiration of such action by such Governmental Authorityextension period;
(iiid) by the Company, if (i) 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 Proxy Statement shall not be disregarded), shall not be true and correct, with only such exceptions as, individually or in have been cleared by the aggregate, have not had a Material Adverse Effect; provided, however, if such failure to be true and correct is curable SEC on or before the Outside Date, then only upon 90th day after the later of the Company providing Cirracor (x) the Company’s audited financial statements for use in the Proxy Statement or (y) all reasonably necessary information regarding the Company as required for disclosure in the Proxy Statement or (ii) the Merger has not been consummated within 30 days after the SEC clears the Proxy Statement ; provided that such failure has not occurred as a proximate result of the failure of the other party Company to cure such breach within 20 calendar days after receipt of written notice thereof or if such failure could not reasonably be expected perform its obligations under this Merger Agreement required to be cured within performed at, or prior to, the Effective Time of the Merger, in which event the Company may not terminate this Merger Agreement pursuant to this provision for a period of 10 days following its cure of such 20 calendar days failure; provided, further, that if Cirracor requests an extension of the Closing after this date and the other party promptly commences an action to cure after receipt Company consents in writing, then the Company may not terminate this Merger Agreement under this provision until the expiration of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Dateextension period;
(ive) by Cirracor, if a material adverse change shall have occurred relative to the Company, which change constitutes a material breach and is not curable or, if curable, is not cured within thirty (30) days after written notice of such breach is given by Cirracor to the Company;
(f) by Cirracor, if the other party shall have breached or failed Company willfully fails to perform in any material respect any of its covenants or other agreements contained in material obligations under this Merger Agreement; provided, howeverwhich constitutes a material breach and is not curable or, if curable, is not cured within thirty (30) days after written notice of such breach is given by Cirracor to the Company;
(g) by the Company, if a material adverse change shall have occurred relative to Cirracor or the Cirracor Stockholder, which change constitutes a material breach and is not curable or, if curable, is not cured within thirty (30) days after written notice of such breach is given by the Company to Cirracor;
(h) by the Company, if Cirracor or failure the Cirracor Stockholder willfully fails to perform in any material respect any of their respective material obligations under this Merger Agreement, which constitutes a material breach and is curable on not curable, or before if curable, is not cured within thirty (30) days after written notice of such breach is given by the Outside DateCompany to Cirracor or the Cirracor Stockholder;
(i) by Cirracor, then only upon if the failure Company has a stockholder meeting to obtain the Company Stockholder Approval and such Company Stockholder Approval is not obtained, including at any adjournment 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 Datestockholder meeting.
(cj) by Parent the Company, if before the purchase Cirracor Stockholder Approval is not obtained at the Stockholder Meeting, including at any adjournment 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orStockholder Meeting.
Appears in 2 contracts
Sources: Merger Agreement (Cirracor Inc), Merger Agreement (Panda Ethanol, Inc.)
Termination. This Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the Merger may be abandoned at any time before the Effective Timetime, 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 applicable law) onlyas follows:
(a) by mutual written consent of each of Parent and the partiesCompany by action of their respective boards of directors or managers, as applicable, at any time prior to the Acceptance Time;
(b) by either Parent the Company or the Company:
(i) if the purchase of the Shares pursuant to the Offer shall not have occurred on or Parent, at any time prior to the close of business on April 30, 2005 (Acceptance Time and after the “Outside Date“), if the Acceptance Time has not occurred by the Outside Date; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 8.1(b) shall not be available to any party whose breach of this Agreement has caused or resulted in the Offer not being consummated by such date;
(c) by either Parent or the Company, 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 (i) prior to the Acceptance Time, the acceptance for payment of, or payment for, shares of Common Stock pursuant to the Offer or (ii) prior to the Effective Time, consummation of the Merger, and in either case such Order or other action shall have become final and non-appealable, provided that the party seeking to terminate this Agreement pursuant to this Section 8.1(c) shall have used its reasonable best efforts to remove such Order or other action; provided, further, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to a party if the issuance of such final, non-appealable Order was due to the failure of such party, and in the case of Parent, including the failure of Acquisition Sub, to perform any of its obligations under this Agreement has been Agreement, including the cause of, or resulted in, such purchase not occurring before such dateobligations set forth in Section 6.2(b);
(iid) if by the Company, at any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting time prior to the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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, howeverAcceptance Time, if such failure to be true and correct is curable on Parent 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 Acquisition Sub shall have breached or failed to perform in any material respect any of its representations or warranties, covenants or other agreements contained set forth in this Agreement; provided, however, if a which breach or failure is curable to perform (i) would reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger and (ii) cannot be cured on or before the Outside DateDate or, then only upon the failure if curable in such time frame, is not cured by Parent within thirty (30) days of the other party to cure such breach within 20 calendar days after receipt by Parent of written notice thereof or if of such breach or failure; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company has materially breached of any of its covenants, agreements, representations or warranties contained in this Agreement, which breach has not been cured in all material respects;
(e) by Parent, at any time prior to the Acceptance Time, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure could to perform (i) would result in a failure of conditions (c)(ii) or (c)(iii) set forth in Annex I and (ii) cannot 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 on or before the Outside DateDate or, if curable in such time frame, is not cured by the Company within thirty (30) days of receipt by the Company of written notice of such breach or failure; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Acquisition Sub has materially breached any of its covenants, agreements, representations or warranties contained in this Agreement, which breach has not been cured in all material respects;
(f) By Parent, at any time prior to the Acceptance Time, if any event, development or circumstances have occurred that would result in a failure of condition (c)(iv) set forth in Annex I that cannot be cured on or before the Outside Date or, if curable in such time frame, is not cured by the Company within thirty (30) days of receipt by the Company of written notice of such breach or failure.
(cg) by Parent at any time prior to the Acceptance Time, if before the purchase board of directors of the Shares pursuant to Company shall have effected a Change of Recommendation (whether or not in compliance with Section 6.4); or
(h) by the Offer, Company in accordance with Section 6.4(f);
(i) by the board of trustees Company at any time prior to the Acceptance Time if (i) Acquisition Sub shall have failed to commence the Offer by January 8, 2014 (other than as a result of the Company Company’s breach of its covenants and agreements hereunder), (ii) Acquisition Sub terminates or makes any committee thereof shall have (x) withdrawn or modified change to the Offer in a manner adverse to Parent or Subsidiary its approval or recommendation violation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation terms of the Merger and the other transactions contemplated by this Agreement within five business days after or extends the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SECOffer pursuant to Section 2.1(e)(ii) or (iii) Acquisition Sub shall fail to accept for payment and pay for shares validly tendered and not withdrawn in the Offer subject to the terms of and in accordance with Section 2.1 and at such time all of the Offer Conditions are satisfied; or
(j) by the Company if (i) after the Acceptance Time all of the conditions set forth in Section 7.1 and Annex I 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) and (ii) Parent and Acquisition Sub fail to complete the board of trustees of Closing by the date the Closing is required to have occurred pursuant to this Agreement after the Company or any committee thereof shall have resolved has confirmed in writing that it is willing and able to take any of complete the foregoing actions; orClosing.
Appears in 2 contracts
Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing as follows:
(a) by the mutual written consent of the partiesParent and the Purchaser;
(b) by either the Parent or the Company:
(i) CVS, if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to the close of business on April 30before August 31, 2005 2004 (the “Outside End Date“”); provided, howeverotherwise than as a result of any material breach of any provision of this Agreement by the party, that the right or such party’s affiliates who are parties to this Agreement, seeking 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 dateAgreement;
(iic) by the Parent or CVS, if any court of competent jurisdiction or other Governmental Authority Entity shall have issued an orderpermanently enjoined, decree or ruling or taken any other action permanently enjoining, restraining restrained or otherwise prohibiting prohibited the consummation of the transactions contemplated by this Agreement hereby and such orderinjunction, decree restraint or ruling or other action prohibition shall have become final and nonappealable; provided, however, provided that the right party seeking to terminate this Agreement pursuant shall have used its reasonable best efforts to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused prevent and remove such injunction, restraint or primarily resulted in such action by such Governmental Authorityprohibition;
(iiid) by the Parent, (i) if CVS or the Purchaser shall have breached any of their respective representations and or 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 Agreement if such qualifiers shall not be disregarded), shall not be true and correct, with only such exceptions asbreaches, individually or in the aggregate, have had and would reasonably be expected to have a Purchaser Effect, or (ii) if CVS or the Purchaser shall have materially breached any of their respective covenants contained in this Agreement, in each case which breach cannot be or has not been cured within 30 calendar days after the giving of written notice to CVS and the Purchaser; or
(e) by CVS or the Purchaser, (i) if the Parent or the Sellers shall have breached any of their respective representations or warranties contained in this Agreement if such breaches, individually or in the aggregate, have had and would reasonably be expected to have 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;
(ivii) if the other party Parent or the Sellers shall have materially breached or failed to perform in any material respect any of its their respective covenants or other agreements contained in this Agreement; provided, however, if a in each case which breach cannot be or failure is curable on or before the Outside Date, then only upon the failure of the other party to cure such breach has not been cured within 20 30 calendar days after receipt the giving of written notice thereof or if such breach or failure could not reasonably be expected to be cured within such 20 calendar days the Parent and the other Sellers. The party promptly commences an action desiring 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 terminate this Agreement pursuant to the Offer, (i) the board this Section 6.01 shall give notice of trustees of the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse such termination to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orparty.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (J C Penney Co Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date:
(a) by mutual written consent of the partiesSeller and the Buyer;
(b) by either Parent the Buyer or the Company:Seller, if any state or federal law, order, rule or regulation is adopted or issued, which has the effect, as supported by the written opinion of outside counsel for such party, of prohibiting the Closing, or by the Buyer or the Seller, if any court of competent jurisdiction in the United States or any state shall have issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and, in either case, if such order, rule, regulation, judgment or decree shall have become final and nonappealable.
(ic) by the Buyer or the Seller, by written notice to the other party, if the purchase of the Shares pursuant to the Offer Closing Date shall not have occurred on or prior to before the close of business on April 30, 2005 date that is forty-five (45) calendar days from the date hereof (the “Outside Initial Termination Date“”); provided, however, that the right to terminate the Agreement under this Agreement pursuant to this paragraph (b)(iSection 8.1(c) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been shall have proximately contributed to the cause of, failure of the Closing Date to occur on or resulted in, such purchase not occurring before such date; and provided, further, that if on the Initial Termination Date the conditions to the Closing set forth in Sections 7.1(b), 7.2(e) and/or 7.3(e) shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, then the Initial Termination Date shall be extended to the date that is ninety (90) calendar days from the date hereof;
(iid) by the Buyer, by written notice to the Seller, if any Governmental Authority there shall have issued an orderbeen any breach of any representation or warranty, decree or ruling any breach of any covenant 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties agreement of the other party contained in this AgreementSeller hereunder, 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, breaches individually or in the aggregateaggregate would result in a Company Material Adverse Effect, and such breach shall not have been remedied within thirty (30) days after receipt by the Seller of notice in writing from the Buyer, specifying the nature of such breach and requesting that it be remedied, or the Buyer shall not had have received adequate assurance of a cure of such breach within such thirty (30) day period;
(e) by the Seller, by written notice to the Buyer, if (i) there shall have been a breach of any of the covenants contained in Section 5.3(c), or (ii) there shall have been any breach of any representation or warranty, or any breach of any other covenant or agreement of the Buyer hereunder, which breaches individually or in the aggregate would result in a Buyer Material Adverse Effect, and, in the case of either (i) or (ii), such breach shall not have been remedied within thirty (30) days after receipt by the Buyer of notice in writing from the Seller, specifying the nature of such breach and requesting that it be remedied, or the Seller shall not have received adequate assurance of a cure of such breach within such thirty (30) day period;
(f) by the Buyer if a supplement to or amendment of any section of the Seller Disclosure Schedule made by the Seller pursuant to Section 6.13 results in a Company 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;or
(ivg) by the Seller if the other party Buyer shall not have breached or failed satisfied, by April 1, 2003, its condition to perform close set forth 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 DateSection 7.2(f).
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Purchase Agreement, LLC Purchase Agreement (Dqe Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment notwithstanding any requisite approval and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyadoption of this Agreement, as follows:
(a) by mutual written consent duly authorized by the Boards of the partiesDirectors of each of Viacom and CBS;
(b) by either Parent Viacom or the Company:
(i) CBS, if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on April 30before August 31, 2005 (the “Outside Date“)2000; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.01(b) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur by such purchase not occurring before such datetime;
(iic) by CBS upon delivery to Viacom of written notice that a Competing Proposal constitutes a CBS Superior Proposal; provided, however, that such termination pursuant to this subsection (c) shall not be effective until two business days have elapsed following delivery to Viacom of such written notice (which written notice will inform Viacom of the material terms and conditions of the CBS Superior Proposal); provided further, however, that such termination under this subsection (c) shall not be effective until CBS has made payment to Viacom of the amounts required to be paid pursuant to Section 8.05;
(d) by either CBS or Viacom, if this Agreement shall fail to receive the requisite vote for adoption at the CBS Stockholders' Meeting;
(e) by CBS, upon a breach of any representation, warranty, covenant or agreement on the part of Viacom set forth in this Agreement, or if any representation or warranty of Viacom shall have become untrue, in either case such that the conditions set forth in Sections 7.03(a) or (b) are not capable of being satisfied on or before August 31, 2000 (a "Terminating Viacom Breach");
(f) by Viacom, upon breach of any representation, warranty, covenant or agreement on the part of CBS set forth in this Agreement, or if any representation or warranty of CBS shall have become untrue, in either case such that the conditions set forth in Sections 7.02(a) or (b) are not capable of being satisfied on or before August 31, 2000 ("Terminating CBS Breach"); or
(g) by either Viacom or CBS, if any Governmental Authority shall have issued an order, decree or ruling Order or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Agreement, and such order, decree or ruling Order or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Viacom Inc), Agreement and Plan of Merger (CBS Corp)
Termination. This Agreement may be terminated and the Merger Mergers may be abandoned at any time before prior to the Blocker Merger Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to adoption of this Agreement by the Offer or after the Company Shareholder Approval (if required by applicable law) onlystockholders of Parent:
(a) by mutual written consent of the partiesCompany and Parent;
(b) by either Parent the Company or the CompanyParent:
(i) if (A) any Governmental Entity having jurisdiction over any party hereto shall have issued any order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the purchase consummation of the Shares pursuant Mergers and such order, decree, ruling or injunction or other action shall have become final and nonappealable or if there shall be adopted any law or regulation that makes consummation of the Mergers illegal or otherwise prohibited; provided however, that the right to the Offer terminate this Agreement under this Section 8.1(b)(i)(A) shall not have occurred be available to any party whose breach of this Agreement has caused any of the conditions set forth in Sections 6.1, 6.2 or 6.3 hereof to not be or not be able to be satisfied on or prior to the close Closing, or (B) the Parent Stockholder Approval shall not have been obtained by reason of business on April 30the failure to obtain the required vote upon a vote held at a duly held meeting of the stockholders of Parent, 2005 or at any adjournment thereof;
(ii) if the Mergers shall not have been consummated by July 29, 2016 (the “Outside Termination Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.1(b)(ii) shall not be available to any party whose failure to perform any in breach of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such date;
(ii) if any Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall conditions set forth in Sections 6.1, 6.2 or 6.3 hereof are will not be available satisfied on or prior to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authoritythe Closing;
(iii) if in the representations and warranties event of a breach by the other party of any representation, warranty, covenant or other agreement contained in this Agreement, disregarding all qualifications and exceptions contained therein relating Agreement which (A) would give rise 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 a condition set forth in Section 6.2 or Section 6.3, as applicable, and (B) cannot be or has not been cured by the other party to cure such breach within 20 calendar earlier of thirty (30) days after receipt the giving of written notice thereof or if to the breaching party of such failure could not reasonably be expected to be cured within such 20 calendar days breach and the other Termination Date (a “Terminable Breach”); provided that the terminating party promptly commences an action to cure after receipt is not then in Terminable Breach 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 representation, warranty, covenant or other agreements agreement 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.or
(c) by the Company if the Board of Directors of Parent if before the purchase of the Shares pursuant shall have publicly withdrawn, modified or changed, in any manner that is adverse to the OfferCompany, (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 to the stockholders of Parent with respect to any of the Merger or Transaction Proposals.
(d) A terminating party shall provide written notice of termination to the other transactions contemplated by party specifying with particularity the reason for such termination, and any termination, if otherwise in accordance with this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed shall be effective immediately upon delivery of such written notice to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orparty.
Appears in 2 contracts
Sources: Merger Agreement (Nexeo Solutions Holdings, LLC), Merger Agreement (WL Ross Holding Corp.)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date:
(a) by the mutual written consent of all of the partiesparties hereto;
(b) by either Parent or the Company:
any party, if: (i) if the purchase of the Shares pursuant a material breach shall exist with respect to the Offer written representations and warranties made by another party or parties, as the case may be, (ii) another party shall fail to perform any covenant or agreement on their part to be performed hereunder, or shall take any action prohibited by this Agreement, if such actions shall or may have a material adverse effect on the Seller and/or the transactions contemplated hereby, (iii) another party shall not have occurred on furnished, upon reasonable notice therefor, such certificates and documents required in connection with the transactions contemplated hereby and matters incidental thereto as it or they shall have agreed to and matters incidental thereto as it or they shall have agreed to furnish, and it is reasonably unlikely that the other party will be able to furnish such item(s) prior to May 31, 2002, or (iv) any consent of any third party to the close transactions contemplated hereby (whether or not the necessity of business on April 30which is disclosed herein or in any Schedule hereto) is reasonably necessary to prevent a default under any outstanding material obligation of Seller or the Buyer, 2005 and such consent is not obtainable without material cost or penalty (unless the “Outside Date“); provided, however, that the right party or parties not seeking to terminate this Agreement pursuant agree or agrees to this paragraph (b)(ipay such cost or penalty); or
c) shall not be available to by any party whose failure to perform party, at any of its obligations under this Agreement has been the cause oftime on or after May 31, or resulted in2002, such purchase not occurring before such date;
(ii) if any Governmental Authority 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, however, that to be consummated at the right to terminate this Agreement pursuant to this paragraph (b)(ii) Closing shall not be available to any have been consummated prior thereto, and the party whose failure to comply with Section 6.5 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 parties directing termination shall not then 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 default of any obligations imposed upon the failure of the other such 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or.
Appears in 2 contracts
Sources: Settlement of Debts and Asset Purchase Agreement (Famous Fixins Inc), Settlement of Debts and Asset Purchase Agreement (Famous Fixins Inc)
Termination. This Notwithstanding any other provision of this Agreement, this Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 applicable law) only:
(a) This Agreement may be terminated by mutual written consent action of the parties;
(b) by either Parent Board of Directors of Texas United or GNB at any time prior to the CompanyEffective Time if:
(i) if any court of competent jurisdiction in the purchase of the Shares pursuant to the Offer shall not have occurred on United States or prior to the close of business on April 30, 2005 other United States (the “Outside Date“); provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ifederal or state) 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 Governmental Authority governmental body shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have been final and non-appealable;
(ii) any of the transactions contemplated by this Agreement and such order, decree or ruling are disapproved by any regulatory authority or other action person whose approval is required to consummate any of such transactions; or
(iii) the Merger shall not have become effective on or before the one hundred and fiftieth (150th) day following the date of this Agreement, or such later date as shall have become final been approved in writing by the Boards of Directors of Texas United and nonappealableGNB; provided, however, that the right to terminate under this Agreement pursuant to this paragraph (b)(iiSection 9.1(a)(iii) shall not be available to any party whose failure to comply fulfill any material obligation under this Agreement has been the cause of, or has resulted in, the failure of the Merger to become effective on or before such date;
(b) This Agreement may be terminated by Texas United or GNB if its Board of Directors so determines by vote of a majority of the members of its entire Board, in the event of: (i) a material breach by Texas United or GNB, as the case may be, of any representation or warranty contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party or parties of such breach; or (ii) a material breach by Texas United or GNB, as the case may be, of any of the covenants or agreements contained herein, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the breaching party or parties of such breach.
(c) This Agreement may be terminated by either Texas United or GNB if the approval of the shareholders of GNB or Texas United, as the case may be, contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at the meeting of shareholders of GNB or Texas United, as the case may be, at which they consider the approval of the Agreement.
(d) This Agreement may be terminated by the Board of Directors of GNB if the Average Share Price of Texas United Common Stock (as defined in Section 2.2(c) hereof is less than $18.00 per share. To terminate this Agreement pursuant to this Section 9.1(d), GNB must provide to Texas United written notice of its intent to terminate within two business days following the end of the twenty (20) consecutive trading days ending on and including the tenth trading day preceding the Closing Date (“Termination Notice”). For a period of five business days from the date of receipt of the Termination Notice, Texas United shall have the option, but not the obligation, to increase the aggregate number of shares of Texas United Common Stock into which shares of GNB Stock will be converted at the Effective Time as set forth in Section 2.2 hereof (“Walkaway Counter Offer”). In the event that Texas United elects to make the Walkaway Counter Offer, the Termination Notice previously sent by GNB shall be null and void and of no effect, and GNB shall no longer have the right to terminate the Agreement pursuant to this Section 9.1(d). If Texas United does not elect to make the Walkaway Counter Offer, this Agreement shall terminate.
(e) This Agreement may be terminated at any time prior to the Effective Time with Section 6.5 has caused or primarily resulted in the mutual written consent of Texas United and GNB and the approval of such action by such Governmental Authority;their respective Boards of Directors.
(iiif) This Agreement may be terminated at any time prior to the Closing by the Board of Directors of GNB if prior to the representations and warranties of the other party contained in this AgreementEffective Time, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification GNB shall have received a bona fide Acquisition Proposal (except for the representations and warranties contained as defined in Section 4.6(i9.3(c), for which such qualifiers shall not be disregarded), shall not be true ) and correct, with only such exceptions as, individually or the GNB Board of Directors determines in its good faith judgment and in the aggregateexercise of its fiduciary duties, have not had based as to legal matters on the written advice of independent legal counsel and as to financial matters on the written advice of SAMCO Capital Markets or an investment banking firm of national reputation, that such alternative Acquisition Proposal (if consummated pursuant to its terms) is a Material Adverse EffectSuperior Proposal (as defined in Section 9.3(d)) and that the failure to terminate this Agreement and accept such Superior Proposal would be inconsistent with the proper exercise of such fiduciary duties; provided, however, if such failure to that termination under this clause (ii) shall not be true and correct is curable on or before the Outside Date, then only upon the failure deemed effective until payment 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 DateTermination Fee required by Section 9.3.
(cg) by Parent if before the purchase of the Shares pursuant This Agreement may be terminated at any time prior to the Offer, Closing by the Board of Directors of Texas United if the GNB Board of Directors shall have (i) resolved to accept an Acquisition Proposal, (ii) recommended to the board shareholders of trustees of the Company GNB that they tender their shares in a tender or any committee thereof shall have exchange offer commenced by a third party or (xiii) withdrawn or modified modified, in a any manner that is adverse to Parent Texas United, its recommendation or Subsidiary its approval of this Agreement or recommendation of the Merger or recommended to the other transactions contemplated by this AgreementGNB shareholders acceptance or approval of any alternative Acquisition Proposal, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of do the foregoing actions; orforegoing.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Texas United Bancshares Inc), Merger Agreement (Texas United Bancshares Inc)
Termination. (a) This Agreement may be terminated and the Merger Transactions may be abandoned at any time before the Appointment Time:
(i) by either Parent (by duly authorized action) or the Company (by action duly authorized by the Company Board of Directors) if the Appointment Time shall not have occurred by midnight, New York City time on the Initial Outside Date or Extended Outside Date, as the case may be; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(a)(i) shall not be available to any party whose material breach of any representation, warranty, covenant or agreement 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 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 clause (c) of Annex I is not capable of being satisfied by the Initial Outside Date or Extended Outside Date, as applicable, or (2) 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 Annex I is not 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 such that the conditions to the 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) the Company Board of Directors or any committee thereof shall have effected a Company Change in Recommendation (whether or not in compliance with Section 5.3), (B) the Company 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 have failed to include the Company Recommendation in 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 Rule 14d-2 under the Exchange Act) the Offer within ten (10) business days after the date of this Agreement;
(v) by the Company, in the event that (A)(1) any representation or warranty of Parent or Purchaser set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate in any material respect, or (2) any covenant or agreement of 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 representation or warranty of Parent or Purchaser or of the breach of such covenant or agreement by Parent or Purchaser, as applicable, and (C) if such inaccuracy or breach is 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; or
(vi) 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 before the Effective Time, whether before or after Subsidiary stockholder approval thereof: (i) if a court of competent jurisdiction or other Governmental Entity of competent jurisdiction located within the United States shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to issued a final, non-appealable order, decree or ruling in each case permanently restraining, enjoining or otherwise prohibiting the Offer Transactions; or after the Company Shareholder Approval (if required by applicable law) only:
(aii) by mutual written consent of the parties;
(b) by either Parent or the 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 Company duly authorized by the Company Board 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 Directors and the other party promptly commences an action to cure after receipt Parent Board of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside DateDirectors.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Merger Agreement (Hewlett Packard Co), Merger Agreement (Opsware Inc)
Termination. (a) This Agreement may may, by notice given on or prior to the Closing Date, in the manner hereinafter provided, be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) only:
(a) by mutual written consent of the parties;
(b) by either Parent or the CompanyClosing Date:
(i) by mutual agreement of the Company and Parent;
(ii) by the Company if there has been a Breach by Parent with respect to its representations, warranties or covenants in this Agreement, in each case such that the conditions set forth in Sections 8.1 or 8.2 hereof would not be satisfied, and such misrepresentation, default or breach shall not have been cured within ten (10) days after receipt by Parent of notice specifying particularly such misrepresentation, default or breach;
(iii) by Parent if there has been a Breach by the Company or the Significant Stockholders with respect to any of their respective representations, warranties or covenants in this Agreement, in each case such that the conditions set forth in Sections 7.1 or 7.2 hereof would not be satisfied, and such misrepresentation, default or breach shall not have been cured within ten (10) days after receipt by the Company of notice specifying particularly such misrepresentation, default or breach;
(iv) by the Company or by Parent if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to before 60 days after the close date of business on April 30, 2005 (the “Outside Date“)this Agreement; provided, however, provided that the right Party seeking to terminate this Agreement pursuant to this paragraph (b)(i) shall not be available entitled to any party whose failure to perform any of its obligations under terminate this Agreement has if its breach or violation of any representation, warranty or covenant contained herein shall have been the principal cause of, of the Closing not having occurred on or resulted in, such purchase not occurring before such date;
(iiv) by Parent if any Governmental Authority Written Consents evidencing the Requisite Vote shall not have issued an orderbeen delivered, decree properly completed and executed to approve the Merger, this Agreement and the documents and transactions contemplated hereby within eight (8) business days after the date of this Agreement;
(vi) by the Company or ruling by Parent, if (i) there shall be a final nonappealable order of a federal or taken any other action permanently enjoining, restraining or otherwise prohibiting state court in effect preventing the consummation of the transactions contemplated by this Agreement and such orderAgreement; or (ii) there shall be any action taken, decree or ruling any statute, rule, regulation or other action order enacted, promulgated or issued or deemed applicable to the transactions by any Government Authority which would make the consummation of the transactions illegal; or
(vii) by Parent if, at any time prior to receipt of the Requisite Vote, it shall have become final and nonappealable; provideddetermined there has occurred an effect, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused event 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 aschange which, individually or in the aggregate, have not has 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 would reasonably be expected to be cured within such 20 calendar days and have a Material Adverse Effect on 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 DateCompany.
(cb) by Parent if before In the purchase event of the Shares termination of this Agreement pursuant to the OfferSection 11.1 (a), (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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement shall thereafter become void and have no effect, except that nothing herein will relieve any Party from Liability for any willful breach of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) any representation, warranty, covenant or (ii) the board of trustees of the Company or any committee thereof shall have resolved agreement set forth in this Agreement prior to take any of the foregoing actions; orsuch termination.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant terminate as to the Offer or after the Company Shareholder Approval (if required by applicable law) onlysale and issuance of new Contracts:
(a) by mutual at the option of either the Company or Twentieth Century upon 90 days' advance written consent of notice to the partiesother;
(b) at the option of the Company if shares of the Fund are not available for any reason or if the Company shall reasonably determine in good faith that further investment in shares of the Fund is inappropriate in view of the purposes of the Contracts, provided that reasonable advance notice of election to terminate shall be furnished by either Parent or the Company:;
(ic) at the option of either the Company or Twentieth Century, upon institution of formal proceedings against the broker-dealer or broker-dealers underwriting the Contracts, the Account, the Company, Investors Research or Twentieth Century by the National Association of Securities Dealers, Inc. (the "NASD"), the SEC or any other regulatory body;
(d) at the option of Twentieth Century, if Twentieth Century shall reasonably determine in good faith that the purchase Company is not offering shares of the Shares pursuant Fund in conformity with the terms of this Agreement;
(e) upon termination of the Management Agreement between Twentieth Century and Investors Research, notice of which shall be promptly furnished to the Offer Company; provided, however, that this subsection (e) shall not have occurred on or prior apply if contemporaneously with such termination a new contract of substantially similar terms is entered into between Twentieth Century and Investors Research;
(f) upon the requisite vote of Contract owners having an interest in Twentieth Century to substitute for Twentieth Century's shares the close shares of business on April 30, 2005 (another investment company in accordance with the “Outside Date“)terms of Contracts for which Twentieth Century's shares had been selected to serve as an underlying investment medium; provided, however, that the right Company shall give 60 days' written notice to terminate this Agreement pursuant Twentieth Century of any proposed vote 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 replace the cause of, or resulted in, such purchase not occurring before such dateFund's shares;
(iig) if any Governmental Authority shall have issued an orderupon assignment of this Agreement, decree or ruling or taken any unless made with the written consent of all 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authorityparties hereto;
(iiih) if Twentieth Century's shares are not registered, issued or sold in conformance with Federal or applicable state law or such law precludes the representations and warranties use of Fund shares as the underlying investment medium of Contracts issued or to be issued by the Company, provided that prompt notice shall be given by either party should such situation occur;
(i) at the option of the Company by written notice to the other party contained parries in the event that the Fund ceases to qualify as a Regulated Investment Company under Subchapter M of the Internal Revenue Code or in the event that such Fund fails to meet the diversification requirements specified in Section 4(c) of 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 reasonably believes in good faith that such Fund may fail to so qualify as a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Regulated Investment Company or any committee thereof shall have resolved may fail to take any of the foregoing actions; ormeet such diversification requirements.
Appears in 2 contracts
Sources: Fund Participation Agreement (Aul American Unit Trust), Fund Participation Agreement (Aul American Unit Trust)
Termination. This Agreement may be terminated terminated, and the Merger contemplated hereby may be abandoned abandoned, at any time before prior to the Effective Time, by action taken or authorized by the Board of Directors of the terminating party or parties, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer or after matters presented in connection with the Merger by the stockholders of the Company Shareholder Approval (if required by applicable law) onlyor the stockholders of ACC:
(a) by By mutual written consent of ACC and the partiesCompany, by action of their respective Boards of Directors;
(b) by By either Parent the Company or the Company:
(i) ACC if the purchase of the Shares pursuant to the Offer Merger shall not have occurred on or been consummated prior to May 31, 2013 (such date, the close of business on April 30, 2005 (the “''Outside Date“''); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 7.1(b) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement (including without limitation such party's obligations set forth in Section 5.7) has been the cause of, or resulted in, such purchase not occurring the failure of the Effective Time to occur on or before such datethe Outside Date;
(iic) By either the Company or ACC if any Governmental Authority governmental entity shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Agreement, and such order, decree or decree, ruling or other action shall have become final and nonappealablenonappealable (which order, decree, ruling or other action the parties shall have used their commercially reasonable best efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 5.7);
(d) By written notice of ACC (if ACC is not in material breach of its obligations or its representations and warranties under this Agreement), if there has been a breach by the Company or Merger Sub of any representation, warranty, covenant or agreement contained in this Agreement which (i) would result in a failure of a condition set forth in Section 6.3(a) or 6.3(b) and (ii) cannot be cured prior to the Outside Date; providedprovided that ACC shall have given the Company written notice, howeverdelivered at least twenty (20) days prior to such termination, that the right stating ACC's intention to terminate this Agreement pursuant to this paragraph (b)(iiSection 7.1(d) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in and the basis for such action by such Governmental Authoritytermination;
(iiie) By written notice of the Company (if the Company is not in material breach of its obligations or its representations and warranties under this Agreement), if there has been a breach by ACC of the other party any representation, warranty, covenant or agreement contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification Agreement which (except for the representations and warranties contained i) would result in a failure of a condition set forth in Section 4.6(i), for which such qualifiers shall 6.2(a) or 6.2(b) and (ii) cannot 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 cured prior to be true and correct is curable on or before the Outside Date; provided that the Company shall have given ACC written notice, then only upon delivered at least twenty (20) days prior to such termination, stating the failure of Company's intention to terminate this Agreement pursuant to this Section 7.1(e) and the other party to cure basis for such breach within 20 calendar days after receipt of termination; or
(h) By written notice thereof of either ACC or the Company 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 Company Stockholder Approval shall not have been obtained at the Company Stockholders' Meeting duly convened therefor (or at any committee thereof shall have (x) withdrawn adjournment or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreementpostponement thereof), (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of ACC Stockholder Approval shall not have been obtained at the Company ACC Stockholders' Meeting duly convened therefor (or at any committee thereof shall have resolved to take any of the foregoing actions; oradjournment or postponement thereof).
Appears in 2 contracts
Sources: Merger Agreement (Brazil Interactive Media, Inc.), Merger Agreement (Brazil Interactive Media, Inc.)
Termination. a. This Agreement may be shall remain in effect unless and until terminated and in accordance with the Merger may be abandoned at immediately following sentence. This Agreement shall automatically terminate, without any time before further action on the Effective Time, 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 applicable law) only:
(a) by mutual written consent part of any of the parties;
parties hereto or any other person, if all (bbut not less than all) by either Parent or investment management agreements, investment advisory agreements and sub-advisory agreements between Apollo, on the Company:
(i) if the purchase one hand, and AHL, any of the Shares pursuant Subsidiaries, Reinsurance Counterparties and/or Reinsurance-Related Third Party Managers, on the other hand, have been terminated in accordance with (x) their respective terms and (y) AHL’s bye-laws as in effect from time to the Offer shall not have occurred on or prior to the close of business on April 30, 2005 time (the “Outside Date“)Bye-laws”) (to the extent the Bye-laws are applicable to such a termination) and none of such agreements have been replaced by any similar investment management agreement or investment advisory agreement for the benefit of AHL or any of the Subsidiaries; 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 Offerthat, (i) any payments or obligations due hereunder, including, but not limited to, the board payments or obligations as described in Sections 2, 3, 5, 6 and 7 herein, that accrued, or are otherwise payable or rebatable, with respect to any day prior to the date of trustees such termination of this Agreement (with applicable amounts calculated ratably based on the Company actual number of days in the calendar quarter that preceded such termination of this Agreement) shall be payable by AHL, or any committee thereof shall have rebatable to AHL, as applicable, within 10 business days (xor, if such amount is not determinable within such period, then within 3 business days after such amount is determined) withdrawn or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by such termination of this Agreement, (yii) approved in no event shall any payments or recommended obligations due hereunder, including, but not limited to, the payments or obligations as described in Sections 2, 3, 5, 6 and 7 herein, accrue, or otherwise be payable or rebatable, with respect to any Takeover Proposal day or (z) failed to reaffirm its recommendation period beginning on or after the date of the Merger and the other transactions contemplated by such termination of this Agreement within five business days after the public announcement and (iii) Sections 4 (for so long as ISG manages any Account of a Takeover Proposal Reinsurance Counterparty of AHL or any Subsidiary or acts as a sub-advisor to any Reinsurance-Related Third Party Manager), 7 through 10, and this Section 11 (including the filing defined terms relating thereto), shall survive such termination of a Schedule 13D this Agreement. For purposes of clarification, unless this Agreement is terminated in accordance with the SEC) or immediately preceding sentence, this Agreement shall continue to apply with respect to an Account (ii) the board of trustees and all of the Company other Accounts) even if the ISG/AHL Investment Management Agreement relating to such Account is terminated pursuant to its terms or any committee thereof otherwise.
b. If this Agreement terminates pursuant to Section 11(a) prior to all investment management agreements, investment advisory agreements and sub-advisory agreements between Apollo, on the one hand, and ACRA Entities, on the other hand, having been terminated in accordance with their respective terms, then ISG and AHL shall have resolved use their good faith efforts to take any enter into a replacement fee agreement that addresses the portions of this Agreement that relate to ACRA Entities and the foregoing actions; orACRA Accounts.
Appears in 2 contracts
Sources: Fee Agreement (Athene Holding LTD), Fee Agreement (Athene Holding LTD)
Termination. This Agreement may be terminated and the Offer and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyAcceptance Time:
(a) by mutual written consent agreement of the partiesCompany and Parent;
(b) by either Parent the Company or the CompanyParent, if:
(i) if the purchase of the Shares pursuant to the Offer Acceptance Time shall not have occurred on or before December 31, 2014 (subject to possible extension as provided below, the “End Date”), provided, that if the condition to the Offer set forth in clause (f) of Exhibit B shall not have been satisfied by the End Date (as it may be extended as set forth below), then (unless (A) there shall have been a material uncured breach of, or a material uncured inaccuracy in, a covenant or representation or warranty of Parent or Merger Subsidiary set forth in this Agreement, and (B) as a result of such material uncured breach or inaccuracy, the Company has the immediately exercisable right to validly terminate this Agreement pursuant to Section 9.01(d)(ii) immediately prior to the close of business on April 30, 2005 scheduled End Date) Parent shall be entitled to extend the End Date by a three (3) month period by written notice to the Company (the “Outside Date“End Date may be so extended not more than twice at the election of Parent), it being understood that in no event shall the End Date be extended to a date that is later than the twelve (12) month anniversary of this Agreement; provided, howeverfurther, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 9.01(b)(i) shall not be available to any party whose failure to perform material breach of any provisions of its obligations under this Agreement has been results in the cause of, or resulted in, such purchase not occurring before such datefailure of the Acceptance Time to occur by the End Date;
(ii) if any Governmental Authority of competent jurisdiction shall have issued an orderOrder, decree decree, injunction or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions Offer or the consummation of the Merger as contemplated by this Agreement and such orderOrder, decree or decree, ruling or other action shall have become final and nonappealable, or if there shall be adopted any Applicable Law that makes the Offer or the consummation of the Merger illegal or otherwise prohibited; or
(iii) the Offer shall have expired (without having been extended) or shall have been terminated in accordance with the terms of this Agreement (including Exhibit B) without Merger Subsidiary having accepted shares of Company Common Stock for payment pursuant to the Offer; provided, however, that the right that: (A) a party shall not be permitted to terminate this Agreement pursuant to this paragraph Section 9.01(b)(iii) if: (b)(ii1) the failure of Merger Subsidiary to accept shares of Company Common Stock for payment pursuant to the Offer is attributable to the failure of an Offer Condition to be satisfied; and (2) the failure of such Offer Condition to be satisfied is attributable to a failure, on the part of the party seeking to terminate this Agreement, to perform any covenant in this Agreement required to be performed by such party at or prior to the Acceptance Time; and (B) the Company shall not be available permitted to terminate this Agreement pursuant to this Section 9.01(b)(iii) unless the Company shall have made any payment required to be made to Parent pursuant to Section 10.04;
(c) by Parent:
(i) if an Adverse Recommendation Change shall have occurred (it being understood that the receipt by Parent of an Adverse Recommendation Change Notice shall not, in and of itself, entitle Parent to terminate this Agreement pursuant to this Section 9.01(c)(i));
(ii) if the Company shall have entered into, or publicly announced its intention to enter into, a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.03(b)) relating to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental AuthorityAcquisition Proposal;
(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 Company or any similar standard or qualification (except for the representations of its Representatives shall have willfully and warranties contained in materially breached any of its obligations under 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 Date7.02;
(iv) if the other party Company Board or any committee thereof (A) shall not have rejected any Acquisition Proposal within ten (10) Business Days of the making public thereof (including, for these purposes, by taking no position with respect to the acceptance by the stockholders of the Company of a tender offer or exchange offer, which shall constitute a failure to reject such Acquisition Proposal) or (B) shall have breached failed, pursuant to Rule 14e-2 promulgated under the Exchange Act or failed otherwise, to perform in publicly reconfirm the Board Recommendation within ten (10) Business Days after receipt of a written request from Parent that it do so if such request is made following the making by any material respect Person of an Acquisition Proposal (any of its covenants Section 9.01(c)(i), (ii), (iii) or other agreements contained (iv), a “Triggering Event”); or
(v) in the event (A) of a material breach of any covenant or agreement on the part of the Company set forth in this AgreementAgreement such that the condition set forth in clause (c) of Exhibit B would not be satisfied as of the time of such breach 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 set forth in clause (b) of Exhibit B would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, if that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts prior to the End Date and within thirty (30) days, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.01(c)(v) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or failure is curable on inaccuracy, as applicable, or before (2) the Outside Date, then only upon ceasing by the failure of the other party Company to exercise commercially reasonable efforts to cure such breach within 20 calendar days after receipt of written notice thereof or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.01(c)(v) if such breach or failure could not reasonably be expected to be inaccuracy by the Company is cured within such 20 thirty (30) 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.day period); or
(cd) by the Company, (i) if prior to the Acceptance Time, the Company Board authorizes the Company, in compliance with the terms of this Agreement, including Section 7.03(d), to enter into a binding definitive agreement in respect of a Superior Proposal with a Third Party; provided that the Company shall have paid any amounts due pursuant to Section 10.04 in accordance with the terms, and at the times, specified therein; and provided further that in the event of such termination, the Company substantially concurrently enters into such binding definitive agreement; or (ii) in the event (A) of a material breach of any covenant or agreement on the part of Parent if before or Merger Subsidiary set forth in this Agreement and such failure has a material adverse effect on Merger Subsidiary’s ability to purchase and pay for the purchase shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer or (B) that any of the Shares representations and warranties of Parent and Merger Subsidiary set forth in this Agreement shall have been inaccurate in any material respect and such inaccuracy has a material adverse effect on Merger Subsidiary’s ability to purchase and pay for the shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Subsidiary or such inaccuracies in the representations and warranties of Parent or Merger Subsidiary are curable by Parent or Merger Subsidiary through the exercise of commercially reasonable efforts prior to the End Date and within thirty (i30) days, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.01(d) until the earlier to occur of (1) the board expiration of trustees a thirty (30) calendar day period after delivery of written notice from the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse to Parent of such breach or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreementinaccuracy, (y) approved or recommended any Takeover Proposal as applicable, or (z2) failed Parent or Merger Subsidiary ceasing to reaffirm its recommendation of exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Subsidiary continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Merger and the other transactions contemplated by Company may not terminate this Agreement pursuant to this Section 9.01(d) if such breach or inaccuracy by Parent or Merger Subsidiary is cured within five business days after the public announcement such thirty (30) calendar day period). The party desiring to terminate this Agreement pursuant to this Section 9.01 (other than pursuant to Section 9.01(a)) shall give notice of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved such termination to take any of the foregoing actions; oreach other party hereto.
Appears in 2 contracts
Sources: Merger Agreement (Oracle Corp), Merger Agreement (Micros Systems Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) only:
(a) by mutual written consent of the parties;
(b) by either Parent or the CompanyClosing:
(i) if by mutual consent of UAG and 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 dateStockholders;
(ii) by either UAG or the Stockholders 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 Stockholders (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 Stockholders if any Governmental Authority court of competent jurisdiction in the United States or other United States governmental body shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Agreement, and such order, decree or decree, ruling or other action shall have become final and nonappealablenon-appealable;
(iv) by UAG or Sub if any of the conditions specified in Article 6 hereof have not been met or waived by UAG and Sub at such time as such condition is no longer capable of satisfaction (provided UAG and Sub are not otherwise in material breach of its representations, warranties, covenants or agreements under this Agreement);
(v) by the Stockholders if any of the conditions specified in Article 7 hereof have not been met or waived by the Stockholders at such time as such condition is no longer capable of satisfaction (provided that neither the Stockholders nor the Companies is otherwise in material breach of their or its representations, warranties covenants or agreements under this Agreement); providedor
(vi) by either UAG or the Stockholders if there has been a material breach on the part of the other of any representation, howeverwarranty, that covenant or agreement set forth in this Agreement, which breach (if capable of being cured) has not been cured within ten (10) Business Days following receipt by the right to breaching party of written notice of such breach. If UAG or the Stockholders shall terminate this Agreement pursuant to this paragraph (b)(ii) the provisions hereof, such termination shall not be available effected by notice to any party whose failure to comply with Section 6.5 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 specifying the provision hereof pursuant 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 termination 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 Datemade.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Stock Purchase Agreement (United Auto Group Inc), Stock Purchase Agreement (United Auto Group Inc)
Termination. This Notwithstanding any other provision of this Agreement, this Agreement may be terminated terminated, and the Merger may be abandoned abandoned, at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date:
(a) by By mutual written consent duly authorized by the Boards of Directors of the partiesCompany and Parent;
(b) by By either the Company or Parent or in the Company:
(i) if event that the purchase of the Shares pursuant to the Offer Merger shall not have occurred been consummated on or prior before the sixtieth (60th) calendar day after the date hereof (which date shall be extended to the close ninetieth (90th) calendar day after the date hereof if the Merger shall not have been consummated as a result of business on April 30, 2005 the failure to satisfy the conditions set forth in Section 10.01(a)) (the “Outside End Date“”), 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 11.01(b); provided, however, that if the right Stockholders’ Representative elects to terminate this Agreement pursuant require Parent to this paragraph (b)(i) shall not be available to any party whose failure to perform any seek stockholder approval of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such date;
(ii) if any Governmental Authority 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 prior to the Closing pursuant to Section 8.16 above, then for all purposes of this Agreement the End Date shall be extended until the earlier of (i) the date that is ten (10) business days following the Parent Stockholder Meeting and such order(ii) the date that is one hundred and twenty (120) calendar days after the date hereof;
(c) By either the Company or Parent (provided that the terminating party is not then in breach of any representation, decree or ruling warranty, covenant, or other action shall have become final and nonappealableagreement contained in this Agreement) in the event of a breach by the other party of any representation, warranty, covenant or agreement contained in this Agreement which breach is reasonably likely, in the opinion of the non-breaching party, to permit such party to refuse to consummate the transactions contemplated by this Agreement pursuant to the standards set forth in Section 10.02 or 10.03, as applicable; provided, however, that if such breach in the right representations, warranties, covenants or agreements is curable prior to the End Date through the exercise of commercially reasonable efforts and the breaching party exercises such commercially reasonable efforts to cure such breach, then the non-breaching party may not terminate this Agreement pursuant under this Section 11.01(c) prior to this paragraph the later of (b)(iii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
thirty (iii30) 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 it gives the breaching party receipt of written notice thereof of such breach or if such failure could not reasonably be expected to be cured within such 20 calendar days and (ii) 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 End Date;
(ivd) if By either the other party shall have breached Company or failed to perform Parent 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 any Consent 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation Governmental Authority required for consummation of the Merger and the other transactions contemplated hereby shall have been denied by this Agreement final nonappealable action of such authority or if any action taken by such authority is not appealed within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) time limit for appeal, or (ii) any Law or Order permanently restraining, enjoining or otherwise prohibiting the board consummation of trustees the Merger shall have become final and nonappealable;
(e) By Parent if any of the conditions precedent to the obligations of Parent and Merger Sub (as contained in Section 10.02) to consummate the Merger cannot be satisfied or fulfilled by the End Date;
(f) By the Company if any of the conditions precedent to the obligations of the Company (as contained in Section 10.03) to consummate the Merger cannot be satisfied or any committee thereof shall have resolved fulfilled by the End Date;
(g) By Parent if on the date of this Agreement the Company fails to take any obtain the Requisite Consent or fails to deliver to Parent the Requisite Consent Action evidencing the receipt of the foregoing actionsRequisite Consent;
(h) By either the Company or Parent in the event that Parent submits the transactions contemplated by this Agreement, as amended if applicable, to the holders of Parent Common Stock in accordance with Section 8.16 above and the holders of Parent Common Stock fail to approve the transactions contemplated by this Agreement; or
(i) By the Company (provided that the Company is not then in breach of any representation, warranty, covenant, or other agreement contained in this Agreement) in the event that Parent is unable to deliver to the Company on or before the thirtieth (30th) calendar day after the date hereof a letter signed by CIT Healthcare, LLC stating that CIT Healthcare, LLC and Parent have reached agreement on the terms of a credit agreement necessary for Parent to satisfy the condition set forth in Section 10.02(i) above, that a definitive version of such credit agreement by and between CIT Healthcare, LLC and Parent is complete and that, conditioned upon the consummation of the Merger, CIT Healthcare, Inc. is prepared to execute such credit agreement and fulfill its obligations thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Allion Healthcare Inc), Merger Agreement (Allion Healthcare Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment approval of this Agreement, the Merger and paid for all Shares validly tendered the other Transactions by the respective stockholders of NHP and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyAIMCO:
(a) by the mutual written consent of the partiesNHP and AIMCO;
(b) by either Parent NHP or the Company:
AIMCO, if (i) if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to before 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 Governmental Authority Authority, the consent of which is a condition to the obligations of NHP and AIMCO to consummate the Transactions, shall have determined not to grant its consent and all appeals of such determination shall have been taken and have been unsuccessful or (iii) any court of competent jurisdiction shall have issued an order, judgment or decree or ruling or taken any (other action permanently enjoiningthan a temporary restraining order) restraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Merger and such order, judgment or decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph clause (b)(iii) shall not be available to any party whose failure to comply with Section 6.5 fulfill any obligation under this Agreement has caused been the cause of, or primarily resulted in in, the failure of the Effective Time to occur on or before such action by such Governmental Authoritydate;
(iiic) by NHP, if the representations and warranties there has been a material breach by AIMCO of the other party contained any representation, warranty, covenant or agreement set forth 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 breach has not been cured within ten Business Days following receipt by AIMCO of notice of 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 Effectbreach from NHP; provided, however, that the right to terminate this Agreement pursuant to this SECTION 8.1(c) shall not be available to NHP if NHP, at such failure to be true and correct time, is curable on in material breach of any representation, warranty, covenant 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 agreement set forth in no event later than the Outside Datethis Agreement;
(ivd) by AIMCO, if the other party shall have breached there has been a material breach by NHP of any representation, warranty, covenant or failed to perform in any material respect any of its covenants or other agreements contained agreement set forth in this Agreement, which breach has not been cured within ten Business Days following receipt by NHP of notice of such breach from AIMCO; provided, however, that the right to terminate this Agreement pursuant to this SECTION 8.1(d) shall not be available to AIMCO if AIMCO, at such time, is in material breach of any representation, warranty, covenant or agreement set forth in this Agreement;
(e) by AIMCO or NHP if, at the NHP Meeting (including any adjournment or postponement thereof) called pursuant to SECTION 6.7 hereof, the NHP Stockholder Approval shall not have been obtained;
(f) by AIMCO or NHP if, at the AIMCO Meeting (including any adjournment or postponement thereof) called pursuant to SECTION 6.7 hereof, the AIMCO Stockholder Approval shall not have been obtained;
(g) by NHP if (i) NHP receives an alternative Acquisition Proposal, (ii) NHP is not then in breach of SECTION 6.6 or in breach of any other representation, warranty, covenant or agreement that would give rise to a breach or failure is curable on or before the Outside Date, then only upon the failure of a condition set forth in SECTION 7.3(a) or 7.3(b), (iii) NHP shall have made the other party payment required by SECTION 8.5, (iv) at least three Business Days prior to cure such breach within 20 calendar days after receipt of termination, NHP shall have provided to AIMCO written notice thereof (A) as to the material terms of any such Acquisition Proposal and (B) that the Board of Directors of NHP, in the exercise of its good faith judgment as to fiduciary duties to stockholders under applicable law, after consultation with outside legal counsel, has determined, by action of a majority of the entire Board of Directors of NHP, or if by the Board of Directors with the approval of its Independent Committee, that such breach termination is necessary in order for such Board of Directors to comply with such duties, and (iv) on the date of such termination, the Board of Directors of NHP determines, by action of a majority of the entire Board of Directors of NHP, or failure could not reasonably be expected by the Board of Directors with the approval of its Independent Committee, that such termination continues to be cured within necessary in order for such 20 calendar days Board of Directors to comply with its fiduciary duties to stockholders under applicable law (which determination shall be made in light of any revised proposal made by AIMCO) and NHP concurrently enters into a definitive agreement providing for the other party promptly commences an action to cure after receipt implementation of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Date.Acquisition Proposal; and
(ch) by Parent AIMCO or NHP 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 or the other transactions contemplated Real Estate Acquisition Agreement has not been entered into by this AgreementMay 31, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) 1997, or (ii) either the board of trustees of Stock Purchase Agreement or the Company or any committee thereof shall have resolved to take any of the foregoing actions; orReal Estate Acquisition Agreement is terminated in accordance with its terms.
Appears in 2 contracts
Sources: Merger Agreement (Apartment Investment & Management Co), Merger Agreement (Apartment Investment & Management Co)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, 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 applicable law) only:
(a) The LESSEE shall be responsible for abiding by mutual written consent the terms of this Agreement including all of the parties;Fees due provided herein for the full term specified in this Agreement. The LESSEE may terminate this Agreement at the completion of the term specified in the LEASE SPECIFICATIONS listed in ATTACHMENT A. In such event, the LESSEE shall notify OLI in writing, no later than sixty (60) days prior to the expiration of such term, of its intention to forego renewal of the Agreement and shall return to OLI any security devices, hardware or software that enabled access to or usage of The System under this Agreement.
(b) by either Parent or In the Company:
(i) if event the purchase of the Shares pursuant LESSEE wishes to the Offer shall not have occurred on or terminate this Agreement prior to the close end of business on April the term of this Agreement, the LESSEE must inform OLI in writing of its wish to execute an early termination, and the LESSEE shall pay a sum equal to sixty percent (60%) of the total amount of Fees remaining to be paid during such term, plus one hundred percent (100%) of the savings, to date, for discounted prior payments where said amount was discounted due to the term of the Agreement (with the amount of such savings as determined by OLI). The LESSEE must provide OLI with not less than thirty (30) days’ notice of such early termination of this Agreement. In conjunction with such termination, 2005 the LESSEE returns to OLI any security devices, hardware or software that enabled access to or usage of The System under this Agreement.
(the “Outside Date“); provided, however, that c) Each party hereto shall have the right to terminate this Agreement pursuant upon written notice 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 materially breaches an obligation under this Agreement and, after receiving written notice from the non-breaching party identifying such material breach in any material respect any of its covenants or other agreements contained in this Agreement; providedreasonable detail, however, if a breach or failure is curable on or before the Outside Date, then only upon the failure of the other party fails to cure such material breach within 20 calendar thirty (30) days after receipt from the date of written such notice thereof (or if within fifteen (15) days’ notice in the event such breach or is solely based upon the breaching party’s 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 Datepay any amounts due hereunder).
(cd) by Parent if before Upon the purchase termination 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation the Lease authorizing the LESSEE’s use of The System shall automatically terminate, and all rights and obligations of the Merger and the other transactions contemplated by parties under this Agreement within five business days and arising after the public announcement date of a Takeover Proposal (including such termination shall cease; provided that the filing license set forth in Section 8(c) shall remain in effect with respect to all use of a Schedule 13D with The System by the SECLESSEE’s and its Authorized Users prior to such termination. Notwithstanding the foregoing, the following provisions shall survive the termination of this Agreement: Sections 3(b), 3(c), 7, 8, 10, 11, 12, 14, 16(d) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orand 21.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to adoption of this Agreement by the Offer or after the Company Shareholder Approval (if required by applicable law) onlystockholders of Company:
(a) by mutual written consent of the partiesParent and Company;
(b) by either Parent or the CompanyCompany if:
(i) if any Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order in effect at the purchase time of such termination that permanently enjoins or otherwise prohibits or makes illegal the consummation of the Shares pursuant to the Offer shall not have occurred on Merger 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 Governmental Authority 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 hereby, and such order, decree Law or ruling or other action Order shall have become final final, binding and nonappealable; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 8.1(b)(i) shall not be available to a party if the issuance of such final, binding and nonappealable Law or Order was primarily due to the failure of such party to perform any of its agreements, covenants or obligations under this Agreement or the breach of any representation or warranty of such party whose failure to comply with Section 6.5 has caused or primarily resulted set forth in such action by such Governmental Authority;this Agreement; or
(iiiii) 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 Merger shall not be disregardedhave been consummated on or before January 14, 2018 (the “Outside Date”), 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, either Parent or Company, by written notice to the other party, shall have the right to extend the Outside Date to April 10, 2018 if all of the conditions to Closing set forth in Article VII (other than those conditions that by their nature can only be satisfied at the Closing, but are capable of being satisfied at such failure time) (it being understood that the conditions set forth in Section 7.1(a) shall be deemed to be true and correct is curable on or before the Outside Date, then only satisfied for purposes of this definition upon the failure mailing of the Information Statement) 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;
(ivcondition set forth in Section 7.1(c) if the other party shall are satisfied on, or have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreementbeen waived prior to, January 13, 2018; provided, further, however, that the right to terminate this Agreement pursuant to this Section 8.1(b)(ii) shall not be available to (A) Parent, if a breach by Parent or failure is curable on Merger Sub of any representation, covenant or before agreement of this Agreement has been the Outside Dateprimary cause of, then only upon or resulted in, the failure to consummate the Merger by such date; or (B) Company, if Company’s breach of any representation, covenant or agreement of this Agreement has been the other party primary cause of, or resulted in, the failure to cure consummate the Merger by 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 Datedate.
(c) by either Parent or Company if before the purchase there shall have been a breach of any of the Shares pursuant agreements, covenants or obligations 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 Offerpart of Company, in the case of a termination by Parent, or Parent, in 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 party (or failures of such representations or warranties to be true), would give rise to, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 7.2(a) or (b) or Section 7.3(a) or (b), as the case may be, and which is not cured within the earlier of the Outside Date and thirty (30) days following written notice to Company, in the case of a termination by Parent, or to Parent, in the case of a termination by Company, or by its nature or timing is incapable of being cured during such period; provided, that the terminating party (or Merger Sub, in the case of a termination by Parent) is not then in material breach of any representation, warranty, agreement, covenant or other obligation contained herein which breach or failure to be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would give rise to or constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 7.2(a) or (b) or Section 7.3(a) or (b), as the case may be;
(d) by Parent, if: (i) the board of trustees Company Board shall have effected a Company Adverse Recommendation Change; (ii) Company shall have entered into, or publicly announced its intention to enter into, a Company Acquisition Agreement (other than an Acceptable Confidentiality Agreement); or (iii) Company, the Company Board or the Special Committee shall have publicly announced its intention to do any of the foregoing;
(e) by Company or any committee thereof shall have prior to the No-Shop Period Start Date (or, solely with respect to a Holdover Proposal, the Delayed No-Shop Period Start Date), in order to substantially concurrently enter into a Company Acquisition Agreement with respect to a Superior Proposal that the Company Board formally authorizes in full compliance with the terms of this Agreement; provided that (x) withdrawn prior to or modified in concurrently with, and as a manner adverse to condition to, such termination, Company pays Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, Termination Fee due under Section 8.2 and (y) approved or recommended any Takeover Proposal or Company has complied in all material respects with the requirements of Section 6.8(d) prior to taking action pursuant to this Section 8.1(e); or
(zf) by Company, if (i) all of the conditions to Closing set forth in Section 7.1 and Section 7.2 have been satisfied and continue to be satisfied (other than conditions that, by their nature, are to be satisfied at Closing and which were, at the time of termination, capable of being satisfied), (ii) Parent and Merger Sub have failed to reaffirm its recommendation consummate the Closing on the date the Closing should have occurred pursuant to Section 1.2, (iii) Company has delivered written notice of such failure to Parent, which notice shall irrevocably confirm that (A) the conditions set forth in Section 7.1 and Section 7.3 (other than conditions that, by their nature, are to be satisfied at Closing and which are fully capable of being satisfied at Closing) have been satisfied or waived and (B) Company is ready, willing and able to consummate the Merger, and (iv) Parent and Merger and Sub fail to consummate the other transactions contemplated Closing within three (3) business days of receipt of such notice; provided, that during such three (3) business day period following the delivery by Company of such notice, no party shall be entitled to terminate this Agreement within five business days after the public announcement of a Takeover Proposal pursuant to Section 8.1(b)(ii). The party desiring to terminate this Agreement pursuant to clause (including the filing of a Schedule 13D with the SECb), (c), (d), (e) or (iif) of this Section 8.1 shall give written notice of such termination to the board each other party in accordance with Section 10.5, specifying with particularity the reason for such termination and the provision or provisions of trustees this Section 8.1 pursuant to which such termination is effected. Such termination shall be effective immediately upon delivery of such written notice (except to the Company or any committee thereof extent a party has the right under this Section 8.1 to cure the basis for such termination, then the termination shall have resolved to take any become effective upon the expiration of the foregoing actions; orsuch cure period).
Appears in 2 contracts
Sources: Merger Agreement (Neff Corp), Merger Agreement (H&E Equipment Services, Inc.)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing by:
(a) by mutual written consent of the partiesSeller and Purchaser;
(b) either Seller or Purchaser, at any time if such party itself is not then in material breach of any of its covenants, agreements or other obligations contained in this Agreement, if the other is in material breach or default of any of its covenants, agreements or other obligations herein, which breach has not been waived by either Parent or the Company:terminating party and remains uncured for a period of thirty (30) days after such other party's receipt of written notice of such breach; provided, however, that if such breach cannot reasonably be cured within 30 days and the breaching party is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 7.1(b);
(ic) either Seller or Purchaser, if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to the close of business on April 30before May 15, 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 date2004;
(iid) either Seller or Purchaser, if any a competent Governmental Authority Entity shall have denied a Required Consent that must be issued an orderby it in order to consummate the transactions contemplated hereby or issued a ruling, decree order or ruling injunction, or taken any other action which, in any such case, permanently enjoiningrestrains, restraining enjoins, prohibits or otherwise prohibiting prevents consummation of the transactions contemplated by this Agreement hereby and such denial, ruling, order, decree or ruling injunction or other action shall have become final and nonappealablenon-appealable; provided, however, that (i) the right to terminate this Agreement under this Section 7.1(d) shall not be available to a terminating party if the terminating party has failed to perform in all material respects its obligations under Section 5.3 hereof and such failure has been the cause of, materially contributes to or results in, the issuance by the Governmental Entity of such denial, ruling, order, injunction or other action; and (ii) the party seeking to terminate this Agreement pursuant to this paragraph (b)(iiSection 7.1(d) shall not be available have used its reasonable commercial efforts to any party whose failure to comply remove such denial, ruling, order, injunction or other action in all material respects in accordance with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority5.3 hereof;
(iiie) Seller, if the representations and warranties Federal Trade Commission or Department of Justice, as the case may be, expresses material reservations regarding the approval of Purchaser in connection with the consummation 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 Effecttransactions contemplated hereby; provided, however, that Seller shall have used reasonable commercial best efforts in all material respects in accordance with Section 5.3 hereof to obtain approval by the Federal Trade Commission or Department of Justice, as the case may be, in connection with the consummation of the transactions contemplated hereby;
(f) either Seller or Purchaser (provided that the terminating party is not then in material breach of any representation, warranty, covenant, or other agreement contained herein), if such failure to be true and correct is curable there shall have been a material breach of any of the representations, warranties, agreements or covenants set forth in this Agreement on or before the Outside Date, then only upon the failure part of the other party to cure which has rendered the satisfaction of any conditions contained in Article VI hereof impossible, such violation or breach has not been waived by the terminating party, and the breach has not been cured within 20 calendar 30 days after receipt of following the terminating party's written notice thereof or if of 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 Agreementbreach; provided, however, that if a such breach or failure cannot reasonably be cured within 30 days and the breaching party is curable on or before the Outside Date, then only upon the failure of the other party diligently proceeding to cure such breach within 20 calendar days after receipt of written notice thereof or if such breach or failure could breach, this Agreement may not reasonably be expected terminated pursuant 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.this Section 7.1(f); or
(cg) by Parent Seller, if before Purchaser shall not have within three Business Days following the purchase date on which the satisfaction or waiver of the Shares pursuant conditions set forth in Sections 6.1 and 6.2 hereof occur (other than those conditions which, by their nature, can only be satisfied at Closing) sufficient cash in immediately available funds to pay the Offer, (i) Purchase Price and all other amounts payable by Purchaser at the board of trustees of Closing or otherwise refuses or fails to close 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orhereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (RCN Corp /De/), Asset Purchase Agreement (Susquehanna Media Co)
Termination. This Agreement may be terminated terminated, and the Merger may be abandoned abandoned, at any time before prior to the Effective Time, whether by action taken or authorized by the Board of Directors of the terminating party, either 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 applicable law) onlyany requisite stockholder approval:
(a) by the mutual written consent of the parties;MCBF and MSB; or
(b) by either Parent MCBF or MSB, in the Company:
(i) if the purchase event of the Shares pursuant failure of MSB’s stockholders to approve the Offer shall not have occurred on or prior to Agreement at the close of business on April 30, 2005 (the “Outside Date“)Stockholder Meeting; provided, however, that the right MSB shall only be entitled to terminate this the Agreement pursuant to this paragraph (b)(i) shall not be available to any party whose failure to perform any of clause if it has complied in all material respects with its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such date;Section 5.8; or
(iic) by either MCBF or MSB, if either (i) any approval, consent or waiver of a Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting Entity required to permit consummation of the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealablebeen denied or (ii) any Governmental Entity of competent jurisdiction shall have issued a final, unappealable order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement; providedor
(d) by either MCBF or MSB, however, in the event that the right Merger is not consummated by May 31, 2004, unless the failure to so consummate by such time is due to the failure of the party seeking to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any perform or observe the covenants and agreements of such party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;set forth herein; or
(iiie) if by either MCBF or MSB (provided that the representations and warranties party seeking termination is not then in material breach of any representation, warranty, covenant or other agreement contained herein), in the event of a breach of any covenant or agreement on the part of the other party contained set forth 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 any representation or warranty 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 become untrue, in either case such that the conditions set forth in Sections 6.2(a) and (b) or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement; providedSections 6.3(a) and (b), howeveras the case may be, 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 would not be satisfied and such breach or failure could untrue representation or warranty has not reasonably be expected to been or cannot be cured within thirty (30) days following written notice to the party committing such 20 calendar days and the other party promptly commences an action to cure after receipt of notice and diligently prosecutes breach or making such cure to completion as promptly as practicable but in no event later than the Outside Date.untrue representation or warranty;
(cf) by Parent MCBF, if before the purchase Board of Directors of MSB does not publicly recommend in the Shares pursuant to Proxy Statement-Prospectus that stockholders approve and adopt this Agreement or if, after recommending in 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 or the other transactions contemplated by Proxy Statement-Prospectus that stockholders approve and adopt this Agreement, (y) approved the Board of Directors of MSB withdraws, qualifies or recommended revises such recommendation in any Takeover Proposal or (z) failed respect materially adverse to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actionsMCBF; or
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Monarch Community Bancorp Inc), Merger Agreement (Monarch Community Bancorp Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date:
(a) by mutual written consent of the partiesSeller and the Buyer;
(b) by either Parent the Buyer or the Company:Seller, if any state or federal law, order, rule or regulation is adopted or issued, which has the effect, as supported by the written opinion of outside counsel for such party, of prohibiting the Closing, or by the Buyer or the Seller, if any court of competent jurisdiction in the United States or any state shall have issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and, in either case, if such order, rule, regulation, judgment or decree shall have become final and nonappealable;
(ic) by the Buyer or the Seller, by written notice to the other party, if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to before sixty (60) days after the close of business on April 30, 2005 date hereof (the “Outside "Initial Termination Date“"); provided, however, that the right to terminate the Agreement under this Agreement pursuant to this paragraph (b)(iSection 8.1(c) shall not be available to any party whose failure failure, or whose Affiliate's failure, to perform fulfill any of its obligations obligation under this Agreement has been shall have proximately contributed to the cause of, failure of the Closing to occur on or resulted in, such purchase not occurring before such date; and provided, further, that if on the Initial Termination Date the conditions to the Closing set forth in Sections 7.1(b), 7.2(e) and/or 7.3(e) shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, then the Initial Termination Date shall be extended to one hundred twenty (120) days after the date hereof;
(iid) if by the Buyer if, at the Closing, any Governmental Authority shall have issued an order, decree breach or ruling or taken breaches of 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 AgreementSeller's representations or warranties, disregarding all qualifications and exceptions contained therein relating covenants or agreements result, or are reasonably likely 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 asresult, individually or in the aggregate, in a Company Material Adverse Effect and such breach or breaches shall not have been cured by the Seller or in respect of which the Seller shall not had have agreed to indemnify the Buyer (pursuant to which indemnity agreement, all Indemnifiable Losses relating to, resulting from or arising out of such breach or breaches shall be Buyer Indemnifiable Losses subject to the Seller's indemnification obligations under Article IX but shall not be limited by, or taken into account in determining whether Buyer Indemnifiable Losses exceed, the Indemnity Cap or be limited by the Indemnity Period). For the avoidance of doubt, if at the Closing there are any breaches of the Seller's representations and warranties that do not result, or are not reasonably likely to result, individually or in the aggregate, in a Company Material Adverse Effect; provided, however, if such failure to be true and correct is curable on or before the Outside Date, then only upon following the failure Closing all Indemnifiable losses relating to, resulting from or arising out of such breaches, to the extent uncured by the Seller, shall be Buyer Indemnifiable Losses subject to the Seller's indemnification obligations under Article IX, recognizing that such indemnification obligations are always subject to the limitations and restrictions contained in Articles IX and X.
(e) by the Seller if, at the Closing any breach or breaches of any of the other party to cure such breach within 20 calendar days after receipt of written notice thereof Buyer's representations 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 warranties, covenants or other agreements contained result, or are reasonably like to result, individually or in this Agreement; providedthe aggregate, however, if in 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 Buyer Material Adverse Effect and such breach or failure could breaches shall not have been cured by the Buyer or in respect of which the Buyer shall not have agreed to indemnity the Seller (pursuant to which indemnity agreement all Indemnifiable Losses relating to, resulting from or arising out of such breach or breaches shall be Seller Indemnifiable Losses, subject to the Buyer's indemnification obligations under Article IX but shall not be limited by, or taken into account in determining whether Seller Indemnifiable Losses exceed, the Indemnity Cap or be limited by the Indemnity Period). For the avoidance of doubt, if at the Closing there are any breaches of the Buyer's representations and warranties that do not result, or are not reasonably likely to result, individually or in the aggregate, in a Buyer Material Adverse Effect, then following the Closing all Indemnifiable Losses relating to, resulting from or arising out of such breaches, to the extent uncured by the Buyer, shall be expected Seller Indemnifiable Losses subject to the Buyer's indemnification obligations under Article IX, recognizing that such indemnification obligations are always subject to the limitations and restrictions contained in Articles IX and X.
(f) by the Buyer if one or more supplements to or amendments of any sections of the Seller Disclosure Schedule made by the Seller pursuant to Section 6.13, individually or in the aggregate, materially and adversely affects the benefits to be cured within such 20 calendar days and obtained by 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 or the other transactions contemplated by Buyer under this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or.
Appears in 2 contracts
Sources: LLC Purchase Agreement (Dqe Inc), LLC Purchase Agreement (Southwest Water Co)
Termination. This Notwithstanding any other provision of this Agreement, this Agreement may be terminated and the Merger may be Transaction abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(a) by mutual written consent of Parent, TPB and the parties;Shareholder Representative (on behalf of the Transaction Shareholders); or
(b) by either Parent, if the Estimated Closing NBV presented on the Pre-Closing Date Balance Sheet is less than the Baseline NBV, in accordance with Section 2.04(a)(ii); or
(c) by Parent or the Company:Shareholder Representative in the event of an inaccuracy of any representation or warranty contained in this Agreement that cannot be or has not been cured within ten (10) days after the giving of written notice to the breaching Party of such inaccuracy, and it is reasonably likely, in the opinion of the non-breaching Party, that the satisfaction of the conditions set forth in Sections 8.02(a) or Section 8.03(a), as applicable, will be impossible as a result of such inaccuracy; or
(d) by Parent or the 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 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, agreement or other obligation contained in this Agreement) if any consent or approval of any Regulatory Authority required for consummation of the Transaction shall have been denied by final non-appealable action of such authority or if any action taken by such Regulatory Authority is not appealed within the time limit for appeal; or
(f) by Parent if, notwithstanding any 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 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 Shareholder Representative if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to before 270 days following the close date 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 if 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 consummate the Transaction 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 date is 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) caused by Parent if before the purchase of the Shares pursuant to the Offer, (i) the board a delay in receipt of trustees any Consents 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) Regulatory Authorities or (ii) any breach of this Agreement by the board of trustees of Party electing to terminate pursuant to this Section 9.01(g); or
(h) by Parent or the Company or any committee thereof shall have resolved to take Shareholder Representative if any of the foregoing actions; orconditions precedent to the 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 may be abandoned at any time before prior to ----------- the Effective Time, 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 applicable law) onlyClosing:
(a) by mutual written consent of the partiesAventis and ViroPharma;
(b) by either Parent Aventis or the CompanyViroPharma:
(i) if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to the close expiration of business on April 30, 2005 the one hundred fifteen (115) day period following the “Outside Date“)date of the Triggering Event; provided, however, provided that the right to terminate this Agreement pursuant to this paragraph (b)(i) clause shall not be available to any a party whose failure to fulfill an obligation under this Agreement results in the failure of the Closing to occur;
(ii) if there shall be any statute, law, regulation or rule that makes consummating the transactions contemplated hereby illegal or if any court or other Governmental Entity of competent jurisdiction shall have issued judgment, order, decree or ruling, or shall have taken such other action restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby and such judgment, order, decree or ruling shall have become final and non-appealable;
(iii) if the Copromotion and Codevelopment Agreement shall have terminated; or
(iv) the United States Federal Trade Commission ("FTC") and/or the United States Department of Justice shall seek a preliminary injunction under the HSR Act against ViroPharma and Aventis to enjoin the transactions contemplated by this Agreement or the Copromotion and Codevelopment Agreement; or
(c) by Aventis:
(i) if ViroPharma shall have (A) failed to perform any of its material obligations under this Agreement has been the cause ofcontained herein, or resulted in(B) breached any of its material representations or warranties contained herein, provided that Aventis gives ViroPharma written notice of such purchase failure to perform or breach and ViroPharma does not occurring before cure such datefailure to perform or breach within thirty (30) days after its receipt of such written notice;
(ii) if any Governmental Authority of the conditions set forth in Section 6.1 or 6.3 (other than 6.3(a)) shall become impossible to fulfill (other than as a result of any breach by Aventis of the terms of this Agreement) and shall not have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting been waived in accordance with the transactions contemplated by terms of this Agreement and such order, decree or ruling Agreement; or
(iii) if the Common Stock shall no longer be listed for trading on the Nasdaq National Market or other action shall have become final and nonappealablenational securities exchange or automated quotation system; provided, provided however, that the right to Aventis may not terminate this Agreement pursuant to this paragraph Section 8.1(c)(iii): (b)(iiA) prior to the date of the Triggering Event; and (B) on or after the date of the Triggering Event, if ViroPharma shall not be available to become listed for trading on the Nasdaq National Market or other national securities exchange or automated quotation system at any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;time during the ninety (90) day period after the date of the Triggering Event.
(iiid) by ViroPharma:
(i) if the Aventis shall have (A) failed to perform any of its material obligations contained herein, or (B) breached any of its material 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)herein, 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 provided that ViroPharma gives Aventis written notice of such failure to be true perform or breach and correct is curable on or before the Outside Date, then only upon the failure of the other party to Aventis does not cure such failure to perform or breach within 20 calendar thirty (30) days after its receipt of such 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;notice; or
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take if any of the foregoing actions; orconditions set forth in Section 6.2 or 6.3 shall become impossible to fulfill (other than as a result of any breach by ViroPharma of the terms of this Agreement) and shall not have been waived in accordance with the terms of this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Viropharma Inc), Copromotion and Codevelopment Agreement (Viropharma Inc)
Termination. This Agreement may be terminated and the Merger Mergers contemplated hereby may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment notwithstanding approval by the stockholders of BioLite and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyBioKey:
(a) by mutual written consent of the partiesParent, each Merger Sub, BioLite and BioKey;
(b) by either Parent Parent, BioLite, or BioKey if any court of competent jurisdiction or other Governmental Body located or having jurisdiction within the Company:United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Mergers and such order, decree, ruling or other action is or shall have become final and nonappealable;
(ic) by Parent, BioLite, or BioKey prior to the Effective Time, if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on April 30before July 31, 2005 2018 (the “Outside Termination Date“); provided, provided that, the Termination Date may be extended upon the written consent of the Parties (which, for the avoidance of doubt, will not require any shareholder approval) provided further, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 9.1(c) shall not be available to the party seeking to terminate if any action of such party whose (or, in the case of Parent, either Merger Sub) or the failure of such party (or, in the case of Parent, either Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such purchase not occurring before such dateaction or failure to perform constitutes a breach of this Agreement;
(iid) by BioLite if any Governmental Authority there shall have issued an orderbeen a breach of any representation, decree warranty, covenant or ruling agreement on the part of Parent, BioKey or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by either Merger Sub contained in this Agreement such that a condition set forth in Section 8.1 or 8.3 would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) fifteen (15) days following notice of such breach to Parent or BioKey, as applicable, and such order, decree or ruling or other action (B) the Termination Date; provided that BioLite shall not have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii9.1(d) if the representations and warranties BioLite is then in material breach 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, ;
(e) by BioKey if there shall have been a breach of any representation, warranty, covenant or failure is curable agreement on the part of Parent, BioLite or before the Outside Dateeither Merger Sub contained in this Agreement such that a condition set forth in Section 8.1 or 8.4 would not be satisfied and, then only upon the failure of the other party to cure in either such case, such breach within 20 calendar shall not have been cured prior to the earlier of (A) fifteen (15) days after receipt following notice of written notice thereof or if such breach to Parent or failure could BioLite, as applicable, and (B) the Termination Date; provided that BioKey shall not reasonably be expected have the right to be cured within such 20 calendar days and the other party promptly commences an action terminate this Agreement pursuant to cure after receipt this Section 9.1(d) if BioKey is then in material breach of notice and diligently prosecutes such cure to completion as promptly as practicable but any of its covenants or agreements contained in no event later than the Outside Date.this Agreement;
(cf) by Parent if before there shall have been a breach of any representation, warranty, covenant or agreement on the purchase part of BioLite or BioKey contained in this Agreement such that a condition set forth in Section 8.1 or 8.2 would not be satisfied and, in either such case, such breach shall not have been cured prior to the Shares earlier of (A) fifteen (15) days following notice of such breach to BioLite or BioKey, as applicable, and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(f) if Parent or either Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement;
(g) by BioLite in accordance with the Offer, terms and subject to the conditions of Section 7.4; or
(h) by BioKey in accordance with the terms and subject to the conditions of Section 7.5;
(i) by Parent in the board of trustees of the Company event a BioLite Adverse Recommendation Change 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orBioKey Adverse Recommendation Change has occurred.
Appears in 2 contracts
Sources: Merger Agreement (American BriVision (Holding) Corp), Agreement and Plan of Merger (American BriVision (Holding) Corp)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 applicable law) only:
(a) by mutual written consent of the partiesLincoln and Jefferson-Pilot in a written instrument;
(b) by either Parent Lincoln or Jefferson-Pilot, upon written notice to the Company:
(i) other party, if the purchase a Governmental Entity of competent jurisdiction which must grant a Requisite Regulatory Approval has denied approval of the Shares pursuant to the Offer shall not have occurred on Merger and such denial has become final and unappealable; 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 Governmental Authority Entity of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Merger, and such order, decree or decree, ruling or other action shall have has become final and nonappealableunappealable; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 7.1(b) shall not be available to any party whose failure to comply with Section 6.5 5.3 or any other provision of this Agreement has caused been the cause of, or primarily resulted in in, such action by such Governmental Authorityaction;
(iiic) by either Lincoln or Jefferson-Pilot, upon written notice to the other party, 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 Merger 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 been consummated on or before the Outside Date, then only upon the failure first anniversary of the other party to cure such breach within 20 calendar days after receipt date 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 that the right to terminate this Agreement under this Section 7.1(c) shall not be available to any party whose failure to comply with any provision of this Agreement has been the cause of, or failure is curable on or before the Outside Dateresulted in, then only upon the failure of the Effective Time to occur on or before such date;
(d) by Lincoln, upon written notice to Jefferson-Pilot, if (i) the Board of Directors of Jefferson-Pilot fails to recommend approval of this Agreement at the Jefferson-Pilot Shareholders Meeting in accordance with Section 5.1(b) or withdraws, modifies or qualifies (or proposes to withdraw, modify or qualify) such recommendation in any manner adverse to Lincoln or to the consummation of the Merger or Jefferson-Pilot takes any other action or makes any other statement in connection with the Jefferson-Pilot Shareholders Meeting that is inconsistent with such recommendation (any such action in this clause (i), a “Change in Jefferson-Pilot Recommendation”) or resolves to take any such action; or (ii) Jefferson-Pilot breaches its obligations under this Agreement by reason of a failure to call the Jefferson-Pilot Shareholders Meeting in accordance with Section 5.1(b) or a failure to prepare and mail to its shareholders the Joint Proxy Statement / Prospectus in accordance with Section 5.1(a);
(e) by Jefferson-Pilot, upon written notice to Lincoln, if (i) the Board of Directors of Lincoln fails to recommend approval of this Agreement at the Lincoln Shareholders Meeting in accordance with Section 5.1(c) or withdraws, modifies or qualifies (or proposes to withdraw, modify or qualify) such recommendation in any manner adverse to Jefferson-Pilot or to the consummation of the Merger or Lincoln takes any other action or makes any other statement in connection with the Lincoln Shareholders Meeting that is inconsistent with such recommendation (any such action in this clause (i), a “Change in Lincoln Recommendation”) or resolves to take any such action; or (ii) Lincoln breaches its obligations under this Agreement by reason of a failure to call the Lincoln Shareholders Meeting in accordance with Section 5.1(c) or a failure to prepare and mail to its shareholders the Joint Proxy Statement / Prospectus in accordance with Section 5.1(a);
(f) by either Lincoln or Jefferson-Pilot, upon written notice to the other party, if there shall have been a breach by the other party to cure of any of the covenants or agreements or any of the representations or warranties set forth in this Agreement on the part of such other party, which breach, either individually or in the aggregate, would result in, if occurring or continuing on the Closing Date, the failure of the condition set forth in Section 6.2(a) or (b) or Section 6.3(a) or (b), as the case may be, and which breach has not been cured within 20 calendar 60 days after receipt of following written notice thereof or if such breach or failure could to the breaching party or, by its nature, cannot 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.time period; and
(cg) by Parent either Lincoln or Jefferson-Pilot, if before the purchase of Required Lincoln Vote or Required Jefferson-Pilot Vote shall not have been obtained upon a vote taken thereon at the Shares pursuant to duly convened Lincoln Shareholders Meeting or Jefferson-Pilot Shareholders Meeting, as 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orcase may be.
Appears in 2 contracts
Sources: Merger Agreement (Jefferson Pilot Corp), Merger Agreement (Lincoln National Corp)
Termination. This Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 Stockholder Approval is obtained (if required by applicable law) onlyexcept as otherwise expressly noted), as follows:
(a) by mutual written consent of each of Parent and the partiesCompany;
(b) by either Parent or the Company, if:
(i) if the purchase of the Shares pursuant to the Offer Merger shall not have occurred been consummated on or prior to before 5:00 p.m. (New York time) on the close first anniversary of business on April 30, 2005 the date of this Agreement (the “Outside Termination Date”); provided that if, on the Termination Date, any of the conditions to the Closing set forth in Section 6.1(d) or Section 6.1(e) (in the case of clause (i) thereof, to the extent any such Restraint is in respect of an Antitrust Law) shall not have been fulfilled but all other conditions to the Closing either have been fulfilled or would be fulfilled if the Closing were to occur on such date, then the Termination Date shall automatically, without any action on the part of the parties hereto, be extended to the eighteen-month anniversary of the date of this Agreement, and such date shall become the “)Termination Date” for purposes of this Agreement; provided, howeverfurther, that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 7.1(b)(i) shall not be available to any party whose failure to perform if a material breach by such party of any of its obligations under this Agreement has been the principal cause of, of or principally resulted in, such purchase not occurring in the failure of the Closing to have occurred on or before such datethe Termination Date;
(ii) if (A) prior to the Effective Time, any Governmental Authority of competent jurisdiction shall have issued an orderor 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, decree or ruling or taken any other action permanently enjoining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Merger, and in the case of such orderan Order, decree or ruling or other action such Order shall have become final and nonappealablenon-appealable, or (B) any authorization or consent from a Governmental Authority required to be obtained pursuant to Section 6.1(d) shall have been denied and such denial shall have become final and non-appealable; providedprovided that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a party if a material breach by such party of its obligations under Section 5.4 has been the principal cause of or principally resulted in the issuance of such Order or the denial of such Consent; or
(iii) 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;
(c) by the Company if:
(i) Parent or Merger Sub shall have breached or failed to perform any of their respective representations, howeverwarranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in Section 6.3(a) or Section 6.3(b) and (B) is not 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 by Parent or Merger Sub on or before the earlier of (x) the Termination Date and (y) the date that is thirty (30) calendar days following the Company’s delivery of written notice to Parent of such breach or failure to perform; provided that the Company shall not have the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii7.1(c)(i) if the representations and warranties Company is then in material breach of the other party contained any of its obligations under this Agreement so as to result 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 a condition set forth in Section 6.2(b); or
(ii) at any time prior to cure such breach within 20 calendar days after receipt of written notice thereof the 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 subject to the applicable terms and conditions of, Section 5.6(d); provided that prior to or if substantially concurrently with such failure could not reasonably be expected termination, the Company pays or causes to be cured within such 20 calendar days and paid to Parent 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;Company Termination Fee; or
(ivd) if by Parent if:
(i) the other party Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained set forth in this Agreement; provided, however, if a which breach or failure to perform (A) would result in the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (B) is curable not capable of being cured by the Company by the Termination Date or, if capable of being cured, shall not have been cured by the Company on or before the Outside Date, then only upon earlier of (x) the failure of Termination Date and (y) the other party to cure such breach within 20 date that is thirty (30) calendar days after receipt following Parent’s delivery of written notice thereof or if to the Company of such breach or failure could to perform; provided that Parent shall not reasonably be expected have the right to be cured within such 20 calendar days and terminate this Agreement pursuant to this Section 7.1(d)(i) if Parent or Merger Sub is then in material breach of any of its obligations under this Agreement so as to result in the other party promptly commences an action to cure after receipt failure of notice and diligently prosecutes such cure to completion as promptly as practicable but a condition set forth in no event later than the Outside Date.Section 6.3(b); or
(cii) by Parent if before the purchase of the Shares pursuant at any time prior to the Offer, (i) the board of trustees receipt of the Company Stockholder Approval, (A) the Company Board shall have made a Company Adverse Recommendation Change, (B) the Company or any committee thereof the Company Board shall have failed to include in the Proxy Statement the Company Recommendation or (C) the Company or the Company Board, as applicable, shall have (xI) withdrawn materially violated or modified in a manner adverse to Parent or Subsidiary breached any of its approval or recommendation of the Merger or the other transactions contemplated by this Agreementobligations under Section 5.6(a), (y) approved or recommended any Takeover Proposal or (zII) failed to publicly reaffirm its recommendation the Company Recommendation within ten (10) Business Days of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement receipt of a Takeover Proposal (including written request by Parent to provide such reaffirmation following receipt by the filing Company of a Schedule 13D Company Acquisition Proposal that is publicly announced and not withdrawn (which request by Parent may only be given once with respect to each such Company Acquisition Proposal; provided, that Parent may make another written request to which this clause (II) shall apply in the SECevent of any publicly disclosed change to the price or other material terms of such Company Acquisition Proposal) or (iiIII) failed to recommend against any Company Acquisition Proposal that is a tender or exchange offer subject to Regulation 14D under the board Exchange Act (in a Solicitation/Recommendation Statement on Schedule 14D-9, if such statement is required to be filed or is otherwise filed), within ten (10) Business Days after the commencement (within the meaning of trustees Rule 14d-2 under the Exchange Act) of the Company such tender or any committee thereof shall have resolved to take any of the foregoing actions; orexchange offer.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (United Technologies Corp /De/)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing as follows:
(a) by mutual written consent of the partiesMICT and Intermediate;
(b) by written notice by either Parent MICT or the Company:
(i) Intermediate if the purchase any of the Shares pursuant conditions to the Offer shall Closing set forth in Article VI have not have occurred on been satisfied or prior to the close of business on April 30waived by May 20, 2005 2020 (the “Outside Date“”); provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date.
(c) by written notice by any of MICT or Intermediate if a Governmental Authority of competent jurisdiction or self-regulatory organization which regulate securities markets (including, for the avoidance of doubt, Nasdaq) shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 7.1(c) shall not be available to a Party if the failure by such Party or its Affiliates to comply with any party whose failure to perform any provision of its obligations under this Agreement has been the a substantial cause of, or substantially resulted in, such purchase not occurring before action by such dateGovernmental Authority;
(iid) by written notice by Intermediate, if (i) there has been a material breach by MICT or its representations, warranties, covenants or agreements contained in this Agreement, or if any Governmental Authority shall have issued an order, decree representation 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 warranty of MICT shall have become final materially untrue or materially inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.2(a) or Section 6.2(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and nonappealable(ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided by Intermediate or (B) the Outside Date; provided, however, provided that Intermediate shall not have the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 7.1(d) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted if at such time Intermediate is in such action by such Governmental Authoritymaterial uncured breach of this Agreement;
(iiie) by written notice by MICT, if the representations and warranties (i) there has been a breach by Intermediate of the other party any of its representations, warranties, covenants or agreements contained in this Agreement, disregarding all qualifications or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and exceptions contained therein relating (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided by MICT or (B) the Outside Date; provided that MICT shall not have the right to materiality or terminate this Agreement pursuant to this Section 7.1(e) if at such time MICT is in material uncured breach of this Agreement;
(f) by written notice by Intermediate, at any time in the event that MICT has entered into binding agreement concerning a transaction that constitutes a Superior Proposal;
(g) by written notice by MICT, at any time in the event that Intermediate has entered into binding agreement concerning a transaction that constitutes a Superior Proposal;
(h) by written notice by MICT, if there shall have been a Material Adverse Effect or any similar standard or qualification with respect to Intermediate, following the date of this Agreement which is uncured and continuing;
(except for the representations and warranties contained in Section 4.6(i), for which such qualifiers i) by written notice by Intermediate if there shall not be disregarded), shall not be true and correct, with only such exceptions as, individually or in the aggregate, have not had been a Material Adverse Effect; provided, however, if such failure Effect with respect to be true MICT following the date of this Agreement which is uncured 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 Datecontinuing;
(ivj) if by written notice by Intermediate, in the other party shall have breached event that Sunrise Securities LLC or failed to perform in any material respect any affiliate thereof seeks and obtains from a court of its covenants competent jurisdiction or other agreements contained in this Agreement; provided, however, if Governmental Authority a breach permanent injunction or failure is curable on or before other Order that has become final and non-appealable preventing the Outside Date, then only upon the failure consummation 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (MICT, Inc.)
Termination. This Agreement may be terminated and prior to the Merger Effective Time or such other time as may be abandoned at expressly stipulated in any time before of the Effective Time, 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 applicable law) onlysubsections below:
(a) by mutual written consent of the partiesOfferor and Augusta;
(b) by either Parent the Offeror by written notice to Augusta if any condition contained in Section 2.2 has not been satisfied or waived by the CompanyOfferor, in its sole discretion, at or before the Latest Mailing Time, except where failure to satisfy such condition is, in whole or in part, a result of a default by the Offeror of its obligations pursuant to this Agreement;
(c) by the Offeror by written notice to Augusta at any time if:
(i) Augusta is in default of any covenant or obligation in Section 2.5, Section 6.1, Section 6.2 or Section 7.5;
(ii) Augusta has breached any other covenant or obligation under this Agreement except for breaches that neither individually nor in the aggregate, result or could reasonably be expected to result, in a Material Adverse Change; or
(iii) any representation or warranty of Augusta:
(A) that is qualified by reference to a Material Adverse Change shall be untrue or incorrect in any respect; or
(B) that is not qualified by reference to a Material Adverse Change shall be untrue or incorrect unless the failure to be true or correct has neither individually nor in the aggregate with other such representations being untrue or incorrect caused or reasonably may be expected to cause, a Material Adverse Change; provided that in each case, such right of termination shall not be available with respect to any breach or failure that is capable of being cured and such breach or failure has been cured by the earlier of the date which is five (5) business days from the date of written notice of such breach or failure and the business day prior to the Expiry Date;
(d) by the Offeror by written notice to Augusta if the purchase Augusta Board of Directors fails to publicly recommend the Offer as referred to in Section 2.2(a)(iv) or reaffirm its approval of the Shares pursuant to Offer within three (3) business days of any written request by the Offeror (or, in the event that the Offer shall be scheduled to expire within such three (3) business day period, prior to the scheduled expiry of the Offer);
(e) by the Offeror by written notice to Augusta if the Augusta Board of Directors or any committee thereof withdraws, amends or modifies in any manner adverse to the Offeror or the Augusta Board of Directors fails to publicly recommend or reaffirm its approval of the Offer and recommendation that Shareholder tender all of the Augusta Shares under the Offer within three (3) business days of (a) the public announcement of any Acquisition Proposal which the Augusta Board of Directors has determined is not have occurred a Superior Proposal or (b) the written request by the Offeror that the Augusta Board of Directors make such a recommendation or reaffirmation;
(f) by the Offeror by written notice to Augusta if Augusta fails to take any action required under Section 2.5 of this Agreement with respect to the Shareholder Rights Plan to defer the Separation Time (as defined in the Shareholder Rights Plan), waive the application of the Shareholder Rights Plan to the Contemplated Transactions or to allow the timely completion of any of the Contemplated Transactions;
(g) by Augusta by written notice to the Offeror at any time if any representation or warranty of the Offeror under this Agreement:
(i) that is qualified by reference to an Offeror Material Adverse Change shall be untrue or incorrect in any respect; or
(ii) that is not qualified by reference to an Offeror Material Adverse Change shall be untrue or incorrect unless the failure to be true or correct has neither individually nor in the aggregate with other such representations being untrue or incorrect caused or reasonably may be expected to cause, an Offeror Material Adverse Change;
(h) by Augusta by written notice to the Offeror if: (A) the Offeror has not mailed the Notice of Variation and Extension by the Latest Mailing Time except where such failure is attributable, in whole or in part, to a default by Augusta; or (B) the Offer (or any amendment thereto other than as permitted hereunder or any amendment thereof that has been mutually agreed to by the Parties) does not conform in all material respects with this Agreement or any amendment thereof that has been mutually agreed to by the Parties and such non conformity is not cured within five (5) business days from the date of written notice to that effect from Augusta;
(i) by Augusta by written notice to the Offeror in order to accept, approve, recommend or enter into a binding written agreement with respect to a Superior Proposal (other than a confidentiality agreement permitted by Section 6.1(d)), subject to compliance with Section 6.2 and Section 6.3;
(j) by either Party by written notice to the other of them if the Effective Time does not occur on or prior to the close of business on April 30, 2005 (the “Outside Date“); provided, however, provided that the right failure of the Effective Time to so occur is not attributable, in whole or in part, to a breach of a representation, warranty or covenant by the Party terminating this Agreement and provided further that Augusta only may terminate the Agreement pursuant to this Section 8.1(j) if the Offeror has not waived the unsatisfied conditions and publicly announced its intention to take up and pay for Augusta Shares that have been deposited pursuant to the Offer;
(k) by either Party by written notice to the other of them if the Offer terminates, expires or is withdrawn at the Expiry Time without the Offeror taking up and paying for any of the Augusta Shares as a result of the failure of any condition to the Offer to be satisfied or waived, unless the failure of such condition shall be attributable, in whole or in part, to the failure of the Party seeking to terminate this Agreement pursuant to this paragraph (b)(i) shall not be available to any party whose failure to perform any of its the obligations required to be performed by it under this Agreement has been the cause of, or resulted in, such purchase not occurring before such date;Agreement; or
(iil) by either Party by written notice to the other of them if any Law in force in Canada or United States (other than a judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings or awards of any Governmental Authority shall have issued an order, decree resulting from action inconsistent with this Agreement) makes the completion of the Offer or ruling or taken any other action permanently enjoining, restraining the Contemplated Transactions illegal 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 Dateprohibited.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Support Agreement (HudBay Minerals Inc.), Support Agreement (Augusta Resource CORP)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to receipt of the Offer or after Required Company Vote or, if required, the Company Bearing Shareholder Approval (if required by applicable law) only:except as otherwise expressly noted):
(a) by mutual written consent of Bearing and the partiesCompany, by action of their respective boards of directors;
(b) by written notice by either Parent the Company or the CompanyBearing if:
(i) if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on April 30before December 31, 2005 2017 (the “Outside Termination Date“”) or if any of the conditions to the Closing set forth in Article 5 have not been satisfied or waived by the Termination Date; provided that the Termination Date shall be automatically extended for a period of sixty (60) days in the event that the failure of the Closing to have occurred by the initial Termination Date results primarily by the failure of any of the conditions set forth in Sections 5.1(d), 5.1(e), or 5.1(f) ; provided, howeverand provided further, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 6.1(b)(i) shall not be available to any party Party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the primary cause of, of the failure of the Effective Time to occur on or resulted in, before the Termination Date and such purchase not occurring before such dateaction or failure to perform constitutes a breach of this Agreement;
(ii) if any Governmental Authority Entity of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement Agreement, and such order, decree or decree, ruling or other action shall have become final and nonappealablenon-appealable; provided that the Party seeking to terminate this Agreement pursuant to this Section 6.1(b)(ii) shall have used its reasonable best efforts to remove such restraint or prohibition as required by this Agreement; and provided, howeverfurther, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 6.1(b)(ii) shall not be available to any party Party whose material breach of any provision of this Agreement results in the imposition of such order, decree or ruling or the failure of such order, decree or ruling to comply with Section 6.5 has caused be resisted, resolved or primarily resulted in such action by such Governmental Authoritylifted;
(iii) if the representations Company Stockholders’ Meeting shall have been conducted 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 Required Company Vote 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 Effectbeen obtained; 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;or
(iv) if to the other party extent that the Bearing Shareholder Approval is required, Bearing shall have conducted a meeting of its stockholders and such Bearing Shareholder Approval shall not have been obtained.
(c) by written notice by Bearing, if:
(i) the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement; provided, however, if a which breach or failure to perform (A) is curable on or before not cured by the Outside Date, then only upon Company within thirty (30) days following receipt by the failure of the other party to cure such breach within 20 calendar days after receipt Company of written notice thereof or if of such breach or failure could to perform from Bearing (or, if earlier the Termination Date), and (B) would result in a failure of any condition set forth in Sections 5.1 or 5.2 (treating the Closing Date for purposes thereof as the date of this Agreement, or if later, the date of such breach); provided that Bearing’s right to terminate this Agreement pursuant to this Section 6.1(c)(i) shall not be available if Bearing or Sub is then in material breach of any of its representations, warranties, covenants or agreements hereunder that would result in the conditions to Closing set forth in Sections 5.1 or 5.3 not being satisfied (treating the Closing Date for purposes thereof as the date of this Agreement, or if later, the date of such breach);
(ii) (x) the Company Board fails to include the Company Board Recommendation in the final Proxy Statement/Prospectus or (y) the Company Board shall have changed the Company Board Recommendation to not support this Agreement and the transactions contemplated hereby;
(iii) if (x) all of the conditions contained in Section 5.1 and Section 5.3 have been satisfied or waived by the Company (other than those conditions that by their nature are to be satisfied at the Closing (but subject to their satisfaction or waiver by the Company at the Closing)) and (y) the Company fails to complete the Closing within three (3) Business Days following the date the Closing should have occurred pursuant to Section 1.2;
(iv) if there shall have been a Company Material Adverse Effect following the date of this Agreement which is uncured and continuing;
(v) within forty-five (45) days after the date of this Agreement if Bearing is not reasonably be expected to be cured within satisfied with the results of such 20 calendar days and due diligence investigation of 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.Company; or
(cd) by Parent if before written notice by the purchase of the Shares pursuant to the OfferCompany, if:
(i) the board Bearing or Sub shall have breached or failed to perform in any respect any of trustees their respective representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform (A) is not cured within thirty (30) days following receipt by Bearing of written notice of such breach or failure to perform from the Company (or, if earlier, the Termination Date), and (B) would result in a failure of any condition set forth in Sections 5.1 or 5.3 (treating the Closing Date for purposes thereof as the date of this Agreement, or if later, the date of such breach); provided, that the Company’s right to terminate this Agreement pursuant to this Section 6.1(d)(i) shall not be available if the Company is then in material breach of any committee of its representations, warranties, covenants or agreements hereunder that would result in the conditions to Closing set forth in Sections 5.1 or 5.2 not being satisfied (treating the Closing Date for purposes thereof as the date of this Agreement, or if later, the date of such breach);
(ii) (A) the Bearing Board shall have failed to publicly reaffirm the Bearing Board Recommendation within two (2) Business Days after the Company so requests in writing;
(iii) if (x) withdrawn or modified in a manner adverse to Parent or Subsidiary its approval or recommendation all of the Merger conditions contained in Section 5.1 and Section 5.2 have been satisfied or waived by Bearing (other than those conditions that by their nature are to be satisfied at the other transactions contemplated Closing (but subject to their satisfaction or waiver by this Agreement, Bearing at the Closing)) and (y) approved or recommended any Takeover Proposal or Bearing and Sub fail to complete the Closing within three (z3) failed Business Days following the date the Closing should have occurred pursuant to reaffirm its recommendation Section 1.2;
(iv) if there shall have been a Bearing Material Adverse Effect following the date of the Merger and the other transactions contemplated by this Agreement which is uncured and continuing; or
(v) within forty-five business (45) days after the public announcement date of a Takeover Proposal (including this Agreement if the filing of a Schedule 13D Company is not reasonably satisfied with the SEC) or (ii) the board results of trustees such due diligence investigation of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orBearing.
Appears in 2 contracts
Sources: Merger Agreement (Bearing Resources Ltd.), Merger Agreement (Li3 Energy, Inc.)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 receipt of the Company Shareholder Approval (if required by applicable law) onlyStockholder Approval:
(a) by mutual written consent of Parent, Merger Sub and the partiesCompany, duly authorized by each of their respective Boards of Directors;
(b) by either Parent or the Company:
(i) if the purchase of the Shares pursuant to the Offer Acceptance Date shall not have occurred on or prior before the date that is six (6) months following the date of this Agreement; provided that if Parent does not finance any significant portion of the transactions contemplated hereby issuing subscription receipts representing the right to the close receive common shares of business on April 30Parent, 2005 such six month period shall be deemed to be nine (9) months (the “Outside Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.01(b)(i) shall not be available to any party whose failure to perform any material breach of its obligations under a representation, warranty or covenant in this Agreement has been the a principal cause of, or resulted in, such purchase not occurring substantially contributed to the failure of the Acceptance Date to occur on or before such datethe Outside Date;
(ii) if any Governmental Authority Entity of competent jurisdiction shall have issued an order, decree or ruling Order or taken any other action permanently enjoining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Offer or the Merger, and such order, decree Order or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate under this Agreement pursuant to this paragraph (b)(iiSection 8.01(b)(ii) shall not be available to any party whose failure material breach of a representation, warranty or covenant in this Agreement has been a principal cause of, or substantially contributed to comply with Section 6.5 has caused such Order or primarily resulted in such action by such Governmental Authorityaction;
(iiic) by Parent, if prior to the representations and warranties Acceptance Date, the Company shall have breached or failed to perform any of the other party contained its representations, warranties, covenants or agreements set forth in this Agreement, disregarding all qualifications which breach or failure to perform (i) would give rise to the failure of a condition set forth in paragraph (b) or (c) of clause (iv) of Annex A and exceptions contained therein relating (ii) is incapable of being cured, or is not cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to materiality perform from Parent;
(d) by the Company, if prior to the Acceptance Date, Parent or Merger Sub shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would result in (A) any of the representations or warranties of Parent or Merger Sub set forth in this Agreement (without giving effect to any Parent Material Adverse Effect or any similar standard or qualification qualifier therein) not being true and correct as of such time (except for to the extent such representations and warranties contained expressly relate to an earlier date, in Section 4.6(iwhich case only as of such earlier date), for which such qualifiers shall not be disregarded), shall not be true and correct, with only such exceptions asexcept as would not, individually or in the aggregate, have not had a Parent Material Adverse Effect; providedEffect or (B) a failure by Parent or Merger Sub to perform in all material respects any obligation, however, if such failure covenant or agreement required to be true performed by it under this Agreement prior to such time, and correct (ii) is curable on incapable of being cured, or before the Outside Dateis not cured, then only upon the failure of the other party to cure such breach by Parent or Merger Sub, as applicable, within 20 thirty (30) calendar days after following 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 perform from 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.Company;
(ce) by Parent Parent, if before prior to the purchase Acceptance Date (i) a Company Adverse Recommendation Change shall have occurred or (ii) the Board of Directors of the Shares pursuant Company shall have (A) taken a position contemplated by Rule 14e-2 of the Exchange Act with respect to any Takeover Proposal other than recommending rejection of such Takeover Proposal (it being understood that the foregoing shall not be deemed to apply to a “stop, look and listen” communication by the Board of Directors to the extent permitted by Section 5.05(d)) or (B) failed to publicly reaffirm its adoption and recommendation of this Agreement, 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 or the other transactions contemplated by this Agreement, in the case of this clause (yB), within seven (7) approved or recommended any Takeover Proposal or (z) failed Business Days of receipt of a written request by Parent to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of provide such reaffirmation following a Takeover Proposal (including which request may only be made once with respect to such Takeover Proposal absent further material changes in such Takeover Proposal);
(f) by the filing Company, if prior to the Acceptance Date, the Board of a Schedule 13D Directors of the Company shall approve, subject to complying with the SECterms of this Agreement, a Superior Proposal in accordance with Section 5.05; provided, however, that the Company may not terminate pursuant to this Section 8.01(f) or unless (i) the Company shall have been in compliance in all material respects with Section 5.05, (ii) the board Board of trustees Directors of the Company authorizes the Company, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and the Company notifies Parent in writing that it intends to enter into such an agreement, attaching the most current version of such agreement to such notice (including any subsequent material amendments or modifications available as of such time), (iii) during the period commencing on the date of receipt of the Company’s notice pursuant to Section 8.01(f)(ii) and ending on midnight, New York time, at the end of the fourth (4th) Business Day following the date of the receipt of the notice pursuant to Section 8.01(f)(ii) (the “Negotiation Period”) (it being understood and agreed that any committee thereof material amendment or modification to the terms of such Superior Proposal shall require a new notice of Superior Proposal and the Negotiation Period for such material amendment or modification shall commence on the date of receipt of the new notice and end on midnight, New York time, at the end of the second (2nd) Business Day following the date of the receipt of such new notice), (A) the Company shall have resolved offered to take any negotiate with (and, if accepted, negotiated with), and shall have instructed its financial and legal advisors to offer to negotiate with (and if accepted, negotiated with), Parent to attempt to make such adjustments in the terms and conditions of this Agreement as will enable the Company to proceed with this Agreement and (B) the Board of Directors of the foregoing actionsCompany shall have determined in good faith, after consultation with its independent financial adviser and outside legal counsel and, after considering the results of such negotiations and any changes to the terms and conditions of this Agreement offered by Parent and Merger Sub, if any (including the certainty of the terms offered by Parent or lack thereof), that the Superior Proposal giving rise to the Company’s notice (including any subsequent amendments or modifications) continues to be a Superior Proposal, (iv) such termination is within five (5) Business Days following the Negotiation Period, if any, and (v) no termination pursuant to this Section 8.01(f) shall be effective unless the Company shall simultaneously make the payment of the Termination Fee required by Section 6.06, and make timely payment of Expenses required by Section 6.06, together with a written acknowledgement from each other party to the Superior Proposal that it is aware of the amounts due Parent under Section 6.06 and that such party waives any right it may have to contest any such amounts payable under Section 6.06; or
(g) by Parent, if the Minimum Tender Condition shall not have been satisfied by the later of (i) twenty (20) Business Days following the initial scheduled Expiration Date of the Offer and (ii) fifteen (15) Business Days following the announcement by Offeror that the HSR Condition and the condition in clause (iii) of Annex A have been satisfied or waived; provided, however, that, if upon the expiration of the fifteen (15) Business Day period in clause (ii) above, a Takeover Proposal shall have been publicly announced and not withdrawn, such period shall be extended for an additional twenty (20)
Appears in 2 contracts
Sources: Merger Agreement (Agrium Inc), Merger Agreement (Uap Holding Corp)
Termination. This Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlySecond Closing Date:
(a) by the mutual written consent agreement of the partiesSeller and Purchaser;
(b) by either Parent or the Company:
(i) Purchaser if the purchase of the Shares pursuant to the Offer shall First Closing has not have occurred on or prior to the close of business on April 30, 2005 fifth (5th) day after the date hereof (the “Outside First Termination Date”) or the Second Closing has not occurred on or prior to the sixtieth (60th) day after the First Closing Date (the “Second Termination Date”, and with the First Termination Date, each a “Termination Date”); provided that Purchaser is not at such time in breach in any material respect of any of its representations or obligations hereunder;
(c) by Seller if the First Closing has not occurred on or prior to the First Termination Date or the Second Closing has not occurred on or prior to the Second Termination Date, provided that Seller is not at such time in breach in any material respect of any of its representations or obligations hereunder;
(d) by either Party if there has been a breach by the other Party of any representation, warranty, covenant or agreement set forth in this Agreement and the effect of such breach would be to cause the conditions to the terminating Party’s obligations to consummate the Closing not to be capable of being satisfied, and such breach is not cured or is not reasonably capable of being cured within 10 days of receiving written notice of such breach or alleged breach from the terminating Party, it being understood and agreed that this Agreement may not be terminated pursuant to this Section 6.9(d) during such 10-day period or following such10-day period if such breach is cured during such 10-day period (provided, however, that such 10-day period shall not extend the applicable Termination Date); or
(e) by either Party if there shall be in effect a final, non-appealable law, rule, regulation, order, judgment or decree (including federal and state securities laws) (“Order”) of a federal, state, local or foreign government, governmental authority, regulatory or administrative agency, governmental department, board, bureau, agency or instrumentality, or court or tribunal of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; it being agreed that the Parties shall promptly appeal any adverse determination which is appealable (and pursue such appeal with reasonable diligence); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 6.9(e) shall not be available to any party whose a Party if such Order was primarily due to the failure of such Party 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Securities Purchase Agreement (Royal Energy Resources, Inc.), Securities Purchase Agreement (Royal Energy Resources, Inc.)
Termination. This Agreement may be terminated shall terminate automatically and without further action upon the earliest to occur of: (i) the valid termination of the Merger may be abandoned at any time before the Effective TimeAgreement in accordance with its terms, 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 (ii) the Company Shareholder Approval Merger Effective Time (if required by applicable lawfollowing the consummation of the Rollover), (iii) only:
(a) by mutual any amendment of the Merger Agreement, without the prior written consent of the parties;
(b) by either Parent or Stockholders, that reduces the Company:
(i) if the purchase amount of the Shares pursuant to Merger Consideration or changes 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties form of the other party contained in this AgreementMerger Consideration (such amendment, disregarding all qualifications and exceptions contained therein relating to materiality an “Adverse Amendment”) 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 written consent of the Stockholders, Parent and the Company (such date, the “Termination Date”); provided that the provisions set forth in Sections 2.3, and 12 through 26 shall have breached or failed to perform in any material respect any survive the termination of its covenants or other agreements contained in this Agreement; provided, howeverfurther, if a breach that Sections 2.4, 2.6 and 2.7 shall survive the termination of this Agreement pursuant to the foregoing clause (ii); provided, further, that Section 4.5 and the provisions and obligations incorporated by reference in Section 4.5 shall survive to the extent that, and only for so long as, the corresponding provisions referenced therein survive under the terms of the Interim Investors Agreement; and provided further that the termination of this Agreement shall not prevent any party hereto from seeking any remedies (at law or failure is curable in equity) against (x) any other party hereto for that party’s Willful Breach of this Agreement that may have occurred on or before the Outside Date, then only upon the failure such termination or (y) against any of the Stockholders for such Stockholder’s material breach of Sections 2.1(a), 4.3(b) and 4.5 (including, for the avoidance of doubt, any material breach of any of the provisions of the Interim Investors Agreement incorporated by reference in Section 4.5) (any material breach contemplated by this clause (y), a “Material Rollover Breach”). For the purpose hereof, “Willful Breach” means a material breach of this Agreement (other party to cure such breach within 20 calendar days after receipt than a Material Rollover Breach) that is a consequence of written notice thereof a willful or if such breach deliberate act or failure could not to act by a Party that knows or would reasonably be expected to have known that the taking of such act or failure to act would, or would reasonably be cured within such 20 calendar days and the other party promptly commences an action to cure after receipt expected to, cause a breach 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or.
Appears in 2 contracts
Sources: Support Agreement (Focus Financial Partners Inc.), Merger Agreement (Focus Financial Partners Inc.)
Termination. This Notwithstanding any other provision of this Agreement, and notwithstanding receipt of the approval by the stockholders of both BYBK and OLB of the Merger, this Agreement may be terminated and the Merger may be abandoned on or at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing Date:
(a) by By the mutual written consent agreement of the partiesBYBK and OLB;
(b) By either BYBK or OLB (provided that the terminating Party is not then in material breach of any representation, warranty, covenant or other agreement contained herein in a manner that would entitle the other Party not to consummate the Contemplated Transactions) in the event of a material breach of any representation, warranty, covenant or other agreement of the other Party contained in this Agreement such that (i) with respect to a representation or warranty, the condition set forth in the second clause of Section 6.1(b) or Section 6.2(b), as the case may be, would not be satisfied, and (ii) with respect to a covenant or other agreement, the condition set forth in the first clause of Section 6.1(b) or Section 6.2(b), as the case may be, would not be satisfied, and in each case such breach cannot be, or shall not have been, remedied within 30 days after receipt by such Party of written notice specifying the nature of such breach and requesting that it be remedied or which, by its nature, cannot be cured prior to the Closing; provided, that if such breach cannot reasonably be cured within such 30-day period but may reasonably be cured within 60 days, and such cure is being diligently pursued, no such termination shall occur prior to the expiration of such 60-day period;
(c) By either Parent BYBK or OLB if the Closing Date shall not have occurred prior to April 30, 2018 (except that if the Closing Date shall not have occurred by April 30, 2018 because of a failure to obtain any required approval or consent of a Regulatory Authority, such date shall be June 30, 2018 unless the conditions of any such required regulatory approval or consent cannot be satisfied by June 30, 2018), except that if the Closing Date shall not have occurred by such date because of a material breach of this Agreement by a Party, such breaching Party shall not be entitled to terminate this Agreement in accordance with this provision;
(d) By either BYBK or OLB in the event any Regulatory Authority whose approval or consent is required for consummation of the Contemplated Transactions shall issue a definitive written denial of such approval or consent and any appeals and requests for reconsideration have also received a definitive written denial or an application therefor has been permanently withdrawn at the request of a Regulatory Authority;
(e) By either BYBK or OLB if any Regulatory Authority whose approval or consent is required for consummation of the Contemplated Transactions grants such consent or approval but such approval or consent contains or would result in the imposition of a Burdensome Condition and there is no meaningful possibility that such consent or approval could be revised prior to June 30, 2018 so as not to contain or result in a Burdensome Condition;
(f) By either BYBK or OLB if the holders of OLB Common Stock or the Companyholders of BYBK Common Stock vote on, but fail to approve, the Merger at the OLB Common Stockholders’ Meeting or the BYBK Common Stockholders’ Meeting, respectively;
(g) By OLB if BYBK or any BYBK Subsidiary enters into any agreement, agreement in principle, letter of intent or similar instrument with respect to any Superior Proposal or approves or resolves to approve any agreement, agreement in principle, letter of intent or similar instrument with respect to a Superior Proposal;
(h) By BYBK if at any time after the date of this Agreement and prior to obtaining the approval of the Merger by the holders of BYBK Common Stock at the BYBK Common Stockholders’ Meeting, BYBK receives a Superior Proposal; provided, however, that BYBK shall not terminate this Agreement pursuant to the foregoing clause unless:
(i) BYBK shall have complied in all material respects with Section 5.7(a)(ii) of this Agreement;
(ii) BYBK concurrently pays the BYBK Termination Fee payable pursuant to Section 8.1(b); and
(iii) the board of directors of BYBK concurrently approves, and BYBK concurrently enters into, a definitive agreement with respect to such Superior Proposal;
(i) By BYBK if OLB or any OLB Subsidiary enters into any definitive term sheet, letter of intent, agreement or similar type of agreement with a view to being acquired by, or effecting a business combination, as a result of which OLB is not the surviving Entity or OLB’s directors, as of the date of this Agreement, do not comprise the majority of the surviving Entity’s board of directors, with any person other than BYBK, and the BYBK board of directors determines that, after considering the advice of counsel and the BYBK Advisers, such transaction is not in the best interests of the BYBK Common Stockholders; provided, however, that BYBK must exercise the termination option under this Section 7.1(i) within 30 calendar days after the date on which OLB is required to file a Current Report on Form 8-K with the SEC regarding events triggering the termination option;
(j) By OLB if the purchase BYBK board of directors withdraws, changes or modifies its recommendation to its stockholders in any manner adverse to OLB regarding this Agreement or the Merger, or the BYBK board of directors authorizes, recommends or publicly proposes, or publicly announces an intention to authorize, recommend or propose, an agreement to enter into an Acquisition Proposal that constitutes a Superior Proposal;
(k) By BYBK if the OLB board of directors withdraws, changes or modifies its recommendation to its stockholders in any manner adverse to BYBK regarding this Agreement or the Merger;
(l) By either BYBK or OLB if any Law permanently restraining, enjoining or otherwise prohibiting the consummation of the Shares Contemplated Transactions shall have become final and nonappealable, provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(l) shall have used its reasonable best efforts to contest, appeal and remove such Law; or
(m) By BYBK if, at any time during the Offer shall not have occurred on or prior to five-day period commencing with the close of business on April 30, 2005 fifth Trading Day immediately preceding the Effective Date (the “Outside Determination Date”), both of the following conditions are satisfied:
(i) The number obtained by dividing the average of the daily closing prices for the shares of OLB Common Stock for the 20 consecutive full trading days on which such shares are actually traded on NASDAQ (the “Average Closing Price”) by the Starting Price (the “OLB Ratio”) shall be less than 0.90; and
(ii) the OLB Ratio shall be less than 0.85 of the quotient of (x) the Final Index Price divided by (y) the Index Price on the Starting Date (each as defined below) (the “Index Ratio”); provided, however, that the if BYBK elects to exercise its termination right to terminate this Agreement pursuant to this paragraph Section 7.1(m), it shall give prompt written notice to OLB (b)(iand provided that such notice of election to terminate may be withdrawn at any time within the aforementioned five-day period). During the five-day period commencing with receipt of such notice, OLB shall have the option to increase the Merger Consideration by (A) shall increasing the Exchange Ratio (calculated to the nearest ten-thousandth) or (B) provided that such payment will not be available result in the Merger failing to constitute a reorganization within the meaning of Section 368(a) of the IRC, making a cash payment of all or part of the increase so that, in either case, the value of the Per Share Consideration (calculated on the basis of the Closing Price) equals the lesser of:
(i) the product of the Starting Price, 0.90 and the Exchange Ratio (as in effect immediately prior to any party whose failure increase in the Exchange Ratio pursuant to perform any of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such date;Section 7.1(m)); and
(ii) if an amount equal to (A) the product of the Index Ratio, 0.85, the Exchange Ratio (as in effect immediately prior to any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting increase in the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement Exchange Ratio pursuant to this paragraph Section 7.1(m)), and the Average Closing Price, divided by (b)(iiB) the OLB Ratio. If OLB so elects within such five-day period, it shall not be available give prompt written notice to BYBK of such election and the revised Exchange Ratio whereupon no termination shall have occurred pursuant to this Section 7.1(m) and this Agreement shall remain in effect in accordance with its terms, provided that any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party contained references in this Agreement, disregarding all qualifications and exceptions contained therein relating Agreement to materiality or Material Adverse Effect or any similar standard or qualification (except for the representations and warranties contained in “Exchange Ratio” shall thereafter be deemed to refer to the Exchange Ratio as increased pursuant to this Section 4.6(i7.1(m). For purposes of this Section 7.1(m), 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 following terms 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; ormeanings indicated:
Appears in 2 contracts
Sources: Merger Agreement (Old Line Bancshares Inc), Merger Agreement (Bay Bancorp, Inc.)
Termination. This Agreement The Executive's employment hereunder may be terminated and under the Merger may be abandoned at any time before the Effective Time, 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 applicable law) onlyfollowing circumstances:
(a) by mutual written consent The Company shall have the right to terminate the employment of the parties;
Executive under this Agreement for disability in the event the Executive suffers an injury, or physical or mental illness or incapacity of such character as to substantially disable him from performing his duties hereunder for a period of more than one hundred eighty (b180) by either Parent or consecutive days upon the Company:
Company giving at last thirty (i30) if the purchase days written notice 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“)termination; provided, however, that if the right Executive is eligible to receive disability payments pursuant to a disability insurance policy or policies paid for by the Company, the Executive shall assign such benefits to the Company for all periods as to which he is receiving payment under this Agreement.
(b) This Agreement shall terminate upon the death of Executive.
(c) The Company may terminate this Agreement at any time for “Cause” because of (i) his being convicted of criminal charges or violating such rules and regulations of the Securities and Exchange Commission as may result in criminal action or material fines against the Company; (ii) Executive’s material breach of any term of this Agreement; or (iii) the willful engaging by the Executive in misconduct which is materially injurious to the Company, monetarily or otherwise; provided, in the case or (ii) or (iii), however, that the Company shall not terminate this Agreement pursuant to this paragraph (b)(iSection 7(c) unless the Company shall first have delivered to the Executive a notice which specifically identifies such breach or misconduct, specifies reasonable corrective action and the Executive shall not be available to have cured the breach or corrected the misconduct within fifteen (15) days after receipt of such notice.
(d) The Executive may terminate his employment for “Good Reason” on five days written notice if:
(i) he is assigned, without his express written consent, any party whose failure to perform any duties inconsistent with his positions, duties, responsibilities, authority and status with the Company as of its obligations under this Agreement has been the cause ofdate hereof, or resulted ina change in his reporting responsibilities or titles as in effect as of the date hereof, such purchase not occurring before such date;except in connection with the termination of his employment by him without Good Reason; or
(ii) if any Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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 his compensation 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 Datereduced.
(cd) Upon termination of Executive’s employment by Parent if before Executive or by the purchase of the Shares pursuant Company, for any reason or for no reason, Executive shall deliver promptly to the OfferCompany all records, (i) manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, data, tables, and calculations, and copies thereof, in whatever medium, which are the board of trustees property of the Company or its affiliates or which relate in any committee thereof shall have (x) withdrawn relevant, meaningful way to the business, products, practices, techniques, customers, suppliers, functions or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees operations of the Company or its affiliates, and all other property and Confidential Information of the Company or its affiliates, including, but not limited to, all documents which in whole or in part contain any committee thereof shall have resolved to take Confidential Information of the Company or its affiliates, which in any of the foregoing actions; orthese cases are in his possession or under his control.
Appears in 2 contracts
Sources: Employment Agreement (Nexalin Technology, Inc.), Employment Agreement (Nexalin Technology, Inc.)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to notwithstanding approval thereof by the Offer or after shareholders of the Company Shareholder Approval (if required by applicable law) onlyor Parent:
(a) by mutual written consent duly authorized by the Boards of Directors of Parent and the parties;Company; or
(b) by either Parent or the Company:
(i) Company if the purchase of the Shares pursuant to the Offer Merger shall not have occurred on or prior to the close of business on April 30been consummated by July 31, 2005 2000 (the “Outside Date“); provided, however, provided that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 7.1(b) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, of or resulted in, such purchase not occurring in the failure of the Merger to occur on or before such date;); or
(iic) by either Parent or the Company if any Governmental Authority a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an a non-appealable final order, decree or ruling or taken any other action having the effect of permanently enjoiningrestraining, restraining enjoining 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, however, Merger (provided that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 7.1(c) shall not be available to any party whose failure who has not complied with its obligations under Section 5.7 and such noncompliance materially contributed to comply with Section 6.5 has caused the issuance of any such order, decree or primarily resulted in ruling or the taking of such action by such Governmental Authority;action); or
(iiid) by Parent or the Company if the representations and warranties any representation or warranty of the Company, or Parent and Merger Sub, respectively, set forth in this Agreement shall be untrue when made, such that the conditions set forth in Sections 6.2(a) or 6.3(a), as the case may be, would not be satisfied (a "TERMINATING MISREPRESENTATION"); PROVIDED, HOWEVER, that, if such Terminating Misrepresentation is curable by the Company or Parent, as the case may be, through the exercise of its commercially reasonable efforts and for so long as the Company or Parent, as the case may be, continues to exercise such reasonable efforts, neither Parent nor the Company, respectively, may terminate this Agreement under this Section 7.1(d); or
(e) by Parent if any representation or warranty of the Company shall have become untrue such that the condition set forth in Section 6.2(a) would not be satisfied (a "COMPANY TERMINATING CHANGE"), or by the Company if any representation or warranty of Parent and Merger Sub shall have become untrue such that the condition set forth in Section 6.3(a) would not be satisfied (a "PARENT TERMINATING CHANGE" and together with a Company Terminating Change, a "TERMINATING CHANGE"), in either case other party contained than by reason of a Terminating Breach (as hereinafter defined); PROVIDED, HOWEVER, that if any such Terminating Change is curable by the Company or Parent, as the case may be, through the exercise of its commercially reasonable efforts, and for so long as the Company or Parent, as the case may be, continues to exercise such commercially reasonable efforts, neither Parent nor the Company, respectively, may terminate this Agreement under this Section 7.1(e); or
(f) by Parent or the Company upon a breach of any covenant or agreement on the part of the Company or Parent, respectively, set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality such that the conditions set forth in Sections 6.2(b) or Material Adverse Effect or any similar standard or qualification (except for the representations and warranties contained in Section 4.6(i6.3(b), for which such qualifiers shall as the case may be, would not be disregardedsatisfied (a "TERMINATING BREACH"); PROVIDED, shall not be true and correctHOWEVER, with only such exceptions as, individually or in the aggregate, have not had a Material Adverse Effect; provided, howeverthat, if such failure to be true and correct Terminating Breach 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 Parent, as the case may be, through the exercise of its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger commercially reasonable efforts and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of for so long as the Company or any committee thereof shall have resolved Parent, as the case may be, continues to take any of exercise such commercially reasonable efforts, neither Parent nor the foregoing actions; orCompany, respectively, may terminate this Agreement under this Section 7.1(f).
Appears in 2 contracts
Sources: Merger Agreement (Aarow Environmental Group Inc), Merger Agreement (Precis Smart Card Systems Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at (notwithstanding any time before approval of the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to Merger by the Offer or after Stockholders of the Company Shareholder Approval (if required by applicable law) only:Company):
(a) by mutual written consent of the partiesBoards of Directors of the Company and Parent at any time prior to the Effective Time;
(b) by either Parent or the Company:
(i) Company if the purchase of the Shares pursuant to the Offer Merger shall not have occurred on or prior to the close of business on April 30been consummated by March 29, 2005 2002 (the “Outside Date“); provided, however, provided that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 7.1(b) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been resulted in the cause offailure to consummate the Merger on or before March 29, 2002);
(c) by Parent or the Company at any time prior to the Effective Time if there shall be enacted after the date hereof any law that makes consummation of the Merger illegal, or resulted inany court of competent jurisdiction shall have issued a final and non-appealable permanent injunction prohibiting the Merger;
(d) by Parent if (i) any of the Company's representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such purchase that the condition set forth in Section 5.1 would not occurring before be satisfied or (ii) any of the Company's covenants contained in this Agreement shall have been breached such datethat the condition set forth in Section 5.2 would not be satisfied; PROVIDED, HOWEVER, that if an inaccuracy in any of the Company's representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company is curable by the Company, and the Company is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement under this Section 7.1(d) on account of such inaccuracy or breach until March 28, 2002;
(e) by the Company if (i) any of Parent's representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 6.3 would not be satisfied or (ii) if any Governmental Authority of Parent's covenants contained in this Agreement shall have issued been breached such that the condition set forth in Section 6.4 would not be satisfied; PROVIDED, HOWEVER, that if an order, decree or ruling or taken inaccuracy in any other action permanently enjoining, restraining or otherwise prohibiting of Parent's representations and warranties as of a date subsequent to the transactions contemplated by date of this Agreement or a breach of a covenant (other than the covenants contained in Section 4.15) by Parent is curable by Parent, and Parent is continuing to exercise all reasonable efforts to cure such orderinaccuracy or breach, decree then the Company may not terminate this Agreement under this Section 7.1(e) on account of such inaccuracy or ruling or other action breach until March 28, 2002; PROVIDED, FURTHER, that with respect to the covenants contained in Section 4.15, the Company shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii7.1(e) 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 Parent 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orsecure Alternative
Appears in 2 contracts
Sources: Merger Agreement (American Coin Merchandising Inc), Merger Agreement (American Coin Merchandising Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer or after matters presented in connection with the Merger by the stockholders of the Company Shareholder Approval (if required by applicable law) onlyor Parent:
(a) by mutual written consent of the partiesCompany and Parent, or by mutual action of their respective Boards of Directors;
(b) by either the Company or Parent or the Company:
(i) if there has been a material breach of any representation, warranty, covenant or agreement on the purchase part of the Shares pursuant 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 breach, provided that the failure to provide such notice shall not be deemed to be a waiver of any breach, or (ii) if any permanent injunction or other order of a court or other competent authority preventing the Offer consummation of the Merger shall have become final and non-appealable, provided that Parent and Company shall have used all commercially reasonable efforts to cause any such injunction or order to be vacated or lifted;
(c) by either the Company or Parent, so long as such party has not breached its obligations hereunder, if the Merger shall not have occurred been consummated on or before March 31, 1996, unless the Offer has expired and shares of common stock were purchased thereto prior to the close of business on April 30March 31, 2005 (the “Outside Date“)1996, in which event not earlier than 120 days from such expiration date; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.1(c) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, of or resulted in, such purchase not occurring in the failure of the Merger to occur on or before such date;
(iid) by the Company if any Governmental Authority shall have issued an orderAcquisition Proposal has been made and, decree or ruling or taken any other action permanently enjoiningin the good faith judgment of the Board of Directors of the Company, restraining or otherwise prohibiting based upon the transactions contemplated by this Agreement and advice of counsel, the Board of Directors of the Company determines in good faith that as a result of such order, decree or ruling or other action shall have become final and nonappealableAcquisition Proposal termination is required under applicable law in the exercise of the Board of Directors' fiduciary duties; provided, however, that the right to terminate if this Agreement is terminated pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 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(i9.1(d), the Company shall reimburse Parent and Sub for which such qualifiers shall all of its fees (including, without limitation, legal fees) and expenses in connection with the transactions contemplated hereby (but not be disregardedin excess of $1,000,000), shall not be true plus all fees (including, without limitation, legal fees) incurred by Parent and correct, Sub in connection with only such exceptions as, individually or in the aggregate, have not had a Material Adverse Effect; provided, howeverenforcing their rights hereunder and, if within 12 months of such failure to be true and correct is curable on termination, the Company shall thereafter consummate or before approve any Acquisition Proposal, the Outside Date, then only Company shall pay Parent the sum of $1,500,000 promptly upon the failure consummation of such transaction, in each case not as a penalty or forfeiture but to compensate Parent adequately for its time, effort, expense and loss of opportunity in connection with 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 or the other transactions contemplated by this Agreement.
(e) by the Company, (y) approved or recommended any Takeover Proposal or (z) if Sub shall have failed to reaffirm its recommendation of commence the Merger and the other transactions contemplated by this Agreement Offer within five business days after following the date of the initial public announcement of a Takeover Proposal the Offer;
(including f) by Parent, if the filing of a Schedule 13D with the SEC) Offer terminates, is withdrawn, abandoned or (ii) the board of trustees expires by reason of the Company or failure to satisfy any committee thereof condition set forth in Exhibit A hereto; or
(g) by the Company, if the Offer shall have resolved expired or have been withdrawn, abandoned or terminated without any shares of Company Common Stock being purchased by Sub thereunder on or prior to take any of the foregoing actions; orExpiration Date as it may be extended pursuant to Section 1.2 hereof.
Appears in 2 contracts
Sources: Merger Agreement (G I Holdings Inc), Merger Agreement (U S Intec Inc)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(a) by the mutual written consent of Wireless and the parties;Signing Company Stockholders; or
(b) by either Parent Wireless, or by the Company:
Signing Company Stockholders , if: (i) if the purchase of the Shares pursuant a material breach shall exist with respect to the Offer written representations and warranties made by the other party; (ii) the other party shall take any action prohibited by this Agreement, if such actions shall or may have a material adverse effect on Company or on Wireless, and/or the transactions contemplated hereby, and shall not fully remedy same within ten (10) days after written notice thereof to such party; (iii) the other party shall not have occurred on furnished, upon reasonable notice therefore, such certificates and documents required in connection with the transactions contemplated hereby and matters incidental thereto as it or he shall have agreed to furnish, and it is reasonably unlikely that the other party will be able to furnish such item(s) prior to the close Outside Closing Date specified below; or (iv) any consent of business any third party to the transactions contemplated hereby (whether or not the necessity of which is disclosed herein or in any Schedule hereto) is reasonably necessary to prevent a default under any outstanding material obligation of either party hereto and such consent is not obtainable without material cost or penalty (unless the party not seeking to terminate this Agreement agrees or agree to pay such cost or penalty); or
(c) by either Wireless or the Signing Company Stockholders, at any time on April 30or after March 22, 2005 2002 (the “Outside Date“"OUTSIDE CLOSING DATE"), if the transactions contemplated hereby shall not have been consummated prior thereto; provided, however, that the right party seeking to terminate effect such termination of this Agreement shall not then be in breach or default of any material representation, warranty, covenant, agreement or obligation imposed upon such party by this Agreement; or
(d) by the Signing Company Stockholders in the event that its due diligence investigation of Wireless shall reveal that Wireless (i) owns or leases any tangible assets in excess of $25,000 in the aggregate, or (ii) has any business operations as at the Closing Date, or (iii) has any liabilities, obligations, contracts, commitments or contingencies of any kind, which could reasonable be expected to expose Wireless or Company to any cost, claim, expense, damage or liability in excess of $100,000 in the aggregate from and after the Closing Date, or (iv) is subject to any claim, deficiency, legal or administrative proceeding or threats thereof which could reasonably be expected to result in litigation and liability to Wireless or Company from and after the Closing Date of $100,000 or more (whether individually or in the aggregate); or
(e) by the Signing Stockholders or the Company in the event that the holders of a majority of the outstanding shares of each of the Company Series A Preferred Stock do not consent in writing to this Agreement, the Merger and the transactions contemplated hereby.
(f) In the event of termination of this Agreement pursuant to this paragraph (b)(i) Section 7.09, prompt written notice shall not be available given by the terminating party to any the other party, and, unless the 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 Governmental Authority 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, however, that the right seeking to terminate this Agreement pursuant shall have no right to do so, neither party to this paragraph (b)(ii) Agreement shall not be available have any further liability to the other. In the event that this Agreement is terminated prior to March 15, 2002 for any party whose failure to comply with Section 6.5 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 Agreementreason, 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 each party shall have breached or failed to perform pay its own expenses incurred in any material respect any of its covenants or other agreements contained in connection with 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 Datetransaction.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Guidon John), Agreement and Plan of Merger (Wireless Synergies Inc)
Termination. This Notwithstanding anything herein to the contrary, this Agreement may be terminated and the Merger Mergers may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after Merger I Effective Time (notwithstanding any adoption of this Agreement by the stockholders of the Company Shareholder Approval (if required or any approval of the matters constituting the Parent Proposal by applicable law) only:the shareholders of Parent):
(a) by the mutual written consent of Parent and the partiesCompany in a written instrument;
(b) by either the Company or Parent or upon written notice to the Companyother, if:
(i) if the purchase of the Shares pursuant to the Offer Mergers shall not have occurred been consummated on or prior to the close of business on April before September 30, 2005 2007 (the “Outside Termination Date“”); provided, however, however that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 7.1(b)(i) shall not be available to any a party whose failure to perform fulfill any of its obligations material obligation under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of the Mergers to have been consummated on or before such date;
(ii) if any Governmental Authority Entity shall have issued an a statute, rule, order, decree or ruling regulation or taken any other action action, in each case permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement Mergers or making consummation of the Mergers illegal and such statute, rule, order, decree or ruling decree, regulation or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 7.1(b)(ii) shall not be available to any party whose failure to comply with Section 6.5 fulfill any material obligation under this Agreement has caused been the cause of or primarily resulted in such action by or who is then in material breach of Section 5.5 with respect to such Governmental Authorityaction;
(iii) if the representations and warranties stockholders of the Company fail to adopt this Agreement because of the failure to obtain the Company Required Vote at the Company Special Meeting; or
(iv) the Parent Proposal shall not have been approved because of the failure to obtain the Parent Required Vote at the Parent Special Meeting;
(c) by the Company, upon written notice to Parent, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other party agreements contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality which breach 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 perform (i) would give rise to the failure of a condition set forth in Sections 6.2(a) or 6.2(b), or would materially impair or delay or otherwise have a material adverse effect on Parent’s ability to consummate the other party transactions contemplated hereby, and (ii) is incapable of being cured by Parent prior to cure such breach the Termination Date or is not cured by Parent within 20 calendar 30 days after following receipt of written notice thereof from the Company of such breach 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 Dateperform;
(ivd) by Parent, upon written notice to the Company, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Sections 6.3(a) or 6.3(b), or would materially impair or delay or otherwise have a material adverse effect on the Company’s ability to consummate the transactions contemplated hereby, and (ii) is incapable of being cured by the Company prior to the Termination Date or is not cured by the Company within 30 days following receipt of written notice from Parent of such breach or failure to perform;
(e) by Parent, upon written notice to the Company, (i) if the other party Company shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement; providedSection 5.3, 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of if a Company Adverse Recommendation Change shall have occurred or the Company Board or any committee thereof shall have resolved to take make a Company Adverse Recommendation Change;
(f) by the Company, upon written notice to the Parent, (i) if Parent shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in Section 5.3, or (ii) if a Parent Adverse Recommendation Change shall have occurred or the foregoing actionsBoard of Directors of Parent or any committee thereof shall have resolved to make a Parent Adverse Recommendation Change;
(g) by the Company, prior to obtaining the Company Required Vote at the Company Special Meeting, if the Company receives a bona fide Acquisition Proposal not solicited in violation of Section 5.3 that the Company Board determines in good faith is a Superior Proposal; provided that the Company shall not exercise its right to terminate this Agreement pursuant to this Section 7.1(g) unless (i) the Company has provided a written notice to Parent (a “Company Notice of Superior Proposal”) advising Parent that the Company has received a Superior Proposal (it being understood that neither the delivery of a Company Notice of a Superior Proposal nor any subsequent public announcement thereof in itself shall entitle Parent to terminate this Agreement pursuant to Sections 7.1(d) and 7.1(e)) that it intends to accept, together with a copy of the proposal documents unless previously provided hereunder and a summary of the terms and conditions of such proposal; (ii) Parent does not, within four Business Days following its receipt of the Company Notice of Superior Proposal, make an offer that, as determined by the Company Board with respect to the holders of Company Common Stock, in good faith after consultation with its respective outside legal counsel and financial advisors, results in the applicable Acquisition Proposal no longer being a Superior Proposal (provided that, during such four Business Day period, the Company shall negotiate in good faith with Parent, to the extent Parent wishes to negotiate, to enable Parent to make such offer) (it being understood and agreed that, prior to any termination pursuant to Section 7.1(g) taking effect, any amendment to the price or any other material term of a Superior Proposal (such amended Superior Proposal, a “Modified Superior Proposal”) shall require a new Notice of Superior Proposal and a new four (4) Business Day period with respect to such Modified Superior Proposal) and (iii) simultaneously with, and as a condition to, its termination pursuant to this Section 7.1(g), the Company shall pay to Parent the Company Termination Fee provided under Section 8.1(g); and (h) by Parent, prior to obtaining the Parent Required Vote at the Parent Special Meeting, if Parent receives a bona fide Acquisition Proposal not solicited in violation of Section 5.3 that the Parent Board determines in good faith is a Superior Proposal; provided that Parent shall not exercise its right to terminate this Agreement pursuant to this Section 7.1(h) unless (i) Parent has provided a written notice to the Company (a “Parent Notice of Superior Proposal”) advising the Company that Parent has received a Superior Proposal (it being understood that neither delivery of a Parent Notice of a Superior Proposal nor any subsequent public announcement thereof in itself shall entitle the Company to terminate this Agreement pursuant to Sections 7.1(c) and 7.1(f)) that it intends to accept, together with a copy of the proposal documents unless previously provided hereunder and a summary of the terms and conditions of such Proposal, (ii) the Company does not, within four Business Days following its receipt of the Parent Notice of Superior Proposal, make a counterproposal that, as determined by the Parent Board with respect to the holders of Parent Common Stock, in good faith after consultation with its respective outside legal counsel and financial advisors, results in the Acquisition Proposal no longer being a Superior Proposal (provided that, during such four Business Day period, Parent shall negotiate in good faith with the Company, to the extent that Company wishes to negotiate, to enable the Company to make such a counterproposal) (it being understood and agreed that, prior to any termination pursuant to Section 7.1(h) taking effect, any Modified Superior Proposal shall require a new Parent Notice of Superior Proposal and a new four Business Day period with respect to such Modified Superior Proposal); and (iii) simultaneously with, and as a condition to, its termination pursuant to this Section 7.1(h), Parent shall pay to the Company the Parent Termination Fee provided under Section 8.1(h).
(i) by the Company, upon written notice of termination pursuant to this Section 7.1 to Parent, if all conditions in Sections 6.1 and 6.3 (other than the condition set forth in Section 6.3(e)) have been satisfied or, in the case of any opinions or certificates to be delivered on the Closing Date, could be satisfied, and Parent has failed to irrevocably waive the condition set forth in Section 6.3(e) within five Business Days after receipt of a written notice from the Company certifying that all conditions in Sections 6.3(a), (b) and (d) have been satisfied (or, are capable of satisfaction at Closing) and that the Company is prepared to close.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Houston Exploration Co)
Termination. 8.1 This Agreement and the transactions contemplated hereby may be terminated and abandoned by the Merger mutual agreement of the ▇▇▇▇▇▇▇▇▇ Trust and the Janus Trust.
8.2 Either the ▇▇▇▇▇▇▇▇▇ Trust or the Janus Trust may be abandoned at any time before the Effective Time, whether before its option terminate this Agreement at or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) only:
(a) by mutual written consent of the parties;
(b) by either Parent or the CompanyClosing Date because:
(i) if of a material breach by the purchase other party of any representation, warranty or agreement contained herein to be performed at or prior the Closing Date;
(ii) a condition herein expressed to be precedent to the obligations of the Shares pursuant terminating party has not been met and it reasonably appears that it will not or cannot be met prior to the Offer Closing Date;
(iii) there shall be a final, non-appealable order of a federal or state court in effect preventing consummation of the transactions contemplated hereby; or there shall be any final action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the transactions contemplated hereby by any governmental entity which would make consummation of the transactions contemplated hereby illegal; or
(iv) the closing has not have occurred on or prior to the close of business on April 30December 31, 2005 2017 (the “Outside Date“); provided, however, provided that the right to terminate this Agreement pursuant to this paragraph (b)(i8.2(iv) shall not be available to any party whose failure to perform fulfill any of its obligations under this Agreement has been the cause of, of or resulted in, such purchase not occurring in the failure of the Closing to occur on or before such date;).
(ii) if any Governmental Authority shall have issued an order8.3 In the event that the Board of Trustees of the ▇▇▇▇▇▇▇▇▇ Trust or the Board of Trustees of the Janus Trust reasonably determines, 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, howeverafter consultation with outside counsel, that the right failure to terminate this Agreement would constitute a breach of the fiduciary duties of such Board of Trustees (such fiduciary duty to be interpreted in accordance with the laws of the state in which such trust is organized), such party may terminate this Agreement with the written consent of the other party, which consent shall not be unreasonably withheld. The party seeking termination pursuant to this paragraph (b)(ii) 8.3 shall provide written notice to the other party of the determination by the Board of Trustees of the party seeking termination and the facts and circumstances that form the basis for such determination.
8.4 In the event of termination of this Agreement pursuant to the provisions hereof, the same shall become void and have no further effect, and there shall not be available to any party whose failure to comply with Section 6.5 has caused liability on the part of any Fund, the Sole Shareholder or primarily resulted each of their respective directors, trustees, officers, agents or shareholders in such action by such Governmental Authority;
(iii) if the representations and warranties respect 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D other than with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved respect to take any of the foregoing actions; orArticle 13.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Henderson Global Funds), Agreement and Plan of Reorganization (Janus Investment Fund)
Termination. This Agreement may be terminated and the Merger Transactions may be abandoned at any time before prior to the Effective TimeClosing, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to obtaining the Offer or after the Company Shareholder Approval (if required by applicable law) only:Stratex Requisite Vote,
(a) by mutual written consent of the partiesH▇▇▇▇▇ and Stratex;
(b) by either Parent H▇▇▇▇▇ or the Company:
Stratex: if (i) if the purchase of Contribution Transaction and the Shares pursuant to the Offer Merger shall not have occurred on or prior to the close of business on April 30been consummated by March 31, 2005 2007 (the “Outside Termination 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 Governmental Authority the vote on the adoption of this Agreement by the stockholders of Stratex shall have issued an orderbeen completed at the Stratex Stockholders Meeting (after any postponement or adjournment thereof) and the Stratex Requisite Vote shall not have been obtained, decree or ruling or taken (iii) any other action Order permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement Contribution Transaction or the Merger exists and such order, decree or ruling or other action Order shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 11.1(b) shall not be available to any party whose failure that has breached its obligations under this Agreement in any manner that shall have proximately contributed to comply with the occurrence of the event which gave rise to the termination right under this Section 6.5 has caused or primarily resulted in such action by such Governmental Authority11.1(b);
(iiic) by H▇▇▇▇▇, if (i) the representations and warranties Stratex Board shall have made, or agreed to make, a Change In Recommendation or failed to reconfirm its recommendation of the other party contained this Agreement within five (5) Business Days after a written request by H▇▇▇▇▇ to do so, (ii) there has been a breach of any representation, warranty, covenant or agreement made by Stratex in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard such representation or qualification warranty shall have become untrue or incorrect on any date subsequent to the date of this Agreement, in each case in a manner that would cause the condition in Section 10.2(a) or 10.2(b), as the case may be, not to be satisfied (assuming, except for cure purposes, any such subsequent date was the representations Closing Date) and warranties contained in Section 4.6(i)such breach or failure to be true or correct is not curable or, for which such qualifiers if curable, is not cured within 30 days after written notice thereof is given by H▇▇▇▇▇ to Stratex, (iii) a vote on the adoption of this Agreement by the stockholders of Stratex shall not be disregarded)have been taken and completed by February 28, 2007 or (iv) Stratex shall not be true and correct, with only such exceptions as, individually have materially breached any of its obligations under Section 9.1 or in the aggregate, have not had a Material Adverse EffectSection 9.2; provided, however, that notwithstanding the foregoing H▇▇▇▇▇ may not terminate this Agreement pursuant to Section 11.1(c) or Section 11.1(c) after the Stratex Requisite Vote has been obtained;
(d) by Stratex, if there has been a breach of any representation, warranty, covenant or agreement made by H▇▇▇▇▇ in this Agreement, or any such representation or warranty shall have become untrue or incorrect on any date subsequent to the date of this Agreement, in each case in a manner that would cause the conditions in Section 10.3(a) or Section 10.3(b), as the case may be, not to be satisfied (assuming, except for cure purposes, any such subsequent date was the Closing Date) and such breach or failure to be true and correct is not curable on or before the Outside Dateor, then only upon the failure of the other party to cure such breach if curable, is not cured within 20 calendar 30 days after receipt of written notice thereof or if such failure could not reasonably be expected is given by Stratex 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;H▇▇▇▇▇; or
(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.
(ce) by Parent if before the purchase of the Shares pursuant Stratex, at any time prior to the Offertime the Stratex Requisite Vote has been obtained, in order for Stratex to enter into a definitive agreement with respect to a Superior Proposal if (i) the board of trustees Stratex has not materially breached any 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 terms of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board Stratex Board has authorized Stratex to enter into a definitive agreement for such Superior Proposal, (iii) Stratex has complied with Section 9.1 and (iv) prior to the termination of trustees of the Company or any committee thereof this Agreement pursuant to this Section 11.1(e), Stratex shall have resolved irrevocably paid to take any H▇▇▇▇▇ the Termination Fee payable pursuant to Section 11.2(d) by wire transfer of the foregoing actions; orimmediately available funds.
Appears in 2 contracts
Sources: Merger Agreement (Harris Corp /De/), Merger Agreement (Stratex Networks Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to adoption of this Agreement by the Offer or after stockholders of the Company Shareholder Approval (if required by applicable law) onlyCompany:
(a) by mutual written consent of the partiesCompany and Newco;
(b) by either Parent Newco or the Company:Company if any court of competent jurisdiction in the United States or other Governmental Entity shall have issued an order, decree or ruling, or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(ic) by Newco or the Company if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on April 30before August 31, 2005 1999 (the “Outside "Termination Date“"); provided, however, provided that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 7.1(c) shall not be available to any party whose breach of any obligation under this Agreement has been the cause of or resulted in the failure of the Effective Time to perform occur on or before such date;
(d) by Newco, if (i) any of the representations and warranties of the Company contained in this Agreement shall fail to be true and correct in any material respect when made or have since become, and at the time of termination remain, untrue or incorrect in any material respect, or (ii) the Company shall have breached or failed to comply in any material respect with any of its obligations under this Agreement (other than as a result of a breach by Newco of any of its obligations under this Agreement) and such failure or breach with respect to any such representation, warranty or obligation shall continue unremedied for ten days after the Company has been received written notice from Newco of the cause of, occurrence of such failure or resulted in, breach (provided that in no event shall such purchase not occurring before such dateten-day period extend beyond the Termination Date);
(iie) by the Company if (i) any Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if of the representations and warranties of the other party Newco 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 Agreement 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 fail to be true and correct is curable on in any material respect when made or before have since become, and at the Outside Datetime of termination remain, then only upon the failure of the other party to cure such breach within 20 calendar days after receipt of written notice thereof untrue 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 incorrect in no event later than the Outside Date;
any material respect, or (ivii) if the other party Newco shall have breached or failed to perform comply in any material respect with any of its covenants or obligations under this Agreement (other agreements contained in than as a result of a breach by the Company of any of its obligations under this Agreement; provided) and such failure or breach with respect to any such representation, however, if a breach warranty or failure is curable on or before obligation shall continue unremedied for ten days after Newco has received written notice from the Outside Date, then only upon the failure Company of the other party to cure occurrence of such failure or 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 (provided that in no event later than shall such ten-day period extend beyond the Outside Termination Date.);
(cf) by Parent Newco if before the purchase Board of the Shares pursuant to the Offer, (i) the board of trustees Directors of the Company or any committee thereof shall have (x) withdrawn or modified modified, in a any manner which is materially adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this AgreementNewco, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation or approval of the Merger this Agreement and the other transactions contemplated Merger;
(g) by this Agreement within five business days after the public announcement Company, if in the exercise of a Takeover Proposal (including its good faith judgment as to fiduciary duties to its stockholders imposed by law, as advised by outside counsel, the filing Board of a Schedule 13D with the SEC) or (ii) the board of trustees Directors of the Company determines that such termination is required by reason of a Company Acquisition Proposal being made; provided that the Company shall notify Newco promptly of its intention to terminate this Agreement or enter into a definitive agreement with respect to any Company Acquisition Proposal, and provided further that the Company may not effect such termination pursuant to this Section 7.1(g) unless the Company has contemporaneously with such termination tendered payment to Newco, or its designee, of the Company Termination Fee pursuant to Section 5.3; and
(h) by Newco or the Company if the Company fails to obtain the Company Stockholder Approval at the Stockholder Meeting (or any committee thereof shall have resolved to take any of the foregoing actions; oradjournment thereof).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Concentra Managed Care Inc), Merger Agreement (Concentra Managed Care Inc)
Termination. This Notwithstanding any contrary provision hereof, this Agreement may be terminated and by written notice given prior to or at the Merger may be abandoned at any time before the Effective Time, 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 applicable law) onlyClosing:
(aA) by mutual written consent of Purchaser, on the partiesone hand, and Sellers and the Shareholder, on the other hand;
(bB) by either Parent Purchaser if Sellers (or any of them) shall, despite the satisfaction of the conditions to Sellers' obligations to consummate the transactions contemplated hereby (including, without limitation, any mutual conditions stated in Section 7.1), fail or refuse to consummate the transactions contemplated hereby;
(C) by any Seller if Purchaser shall, despite the satisfaction of the conditions to Purchaser's obligation to consummate the transactions contemplated hereby (including, without limitation, any mutual conditions stated in Section 7.1), fail or refuse to consummate the transactions contemplated hereby;
(D) by Purchaser if the results of its due diligence review contemplated by Section 5.1 are not reasonably satisfactory to Purchaser (and Purchaser would not also be permitted to terminate this Agreement pursuant to Section 9.1(E));
(E) by Purchaser, if Sellers (or any of them) shall breach any of their representations, warranties or obligations hereunder and such breach, individually or together with all other such breaches, has caused or constitutes a Material Adverse Effect with respect to Ronco, Popeil Inc. or RP or the Company:
(i) if the purchase of the Shares pursuant to the Offer Included Assets, in each case taken as a whole, and shall not have occurred been cured such that no Material Adverse Effect is continuing or waived and such Sellers shall not have provided reasonable assurance that such breach shall be cured such that no Material Adverse Effect shall be continuing as of the Closing Date;
(F) by Purchaser, on the one hand, or prior to any Seller, on the close other hand, if the transactions contemplated hereby shall not have been consummated, other than through failure of business on April 30, 2005 (the “Outside Date“); provided, however, that the right Party seeking to terminate this Agreement pursuant to this paragraph Section 9.1(F) to fulfill its obligations hereunder, on or before January 18th (b)(i) the "Termination Date"). (For the sake of clarification, if the consummation of the transactions contemplated hereby shall not have occurred on or before the Termination Date as a result of the failure of Purchaser's closing condition stated in Section 7.2(C) to be available satisfied, such failure shall not, of itself, constitute a failure of Sellers (or any of them) to any party whose failure to perform fulfill their obligations hereunder.);
(G) by Sellers, if Purchaser shall breach any of its representations, warranties or obligations under this Agreement hereunder and such breach, individually or together with all other such breaches, has caused or constitutes a Material Adverse Effect with respect to Purchaser and shall not have been cured such that no Material Adverse Effect is continuing or waived and Purchaser shall not have provided reasonable assurance that such breach shall be cured such that no Material Adverse Effect shall be continuing as of the cause of, or resulted in, such purchase not occurring before such dateClosing Date;
(iiH) by either Purchaser, on the one hand, or any Seller, on the other hand, if any Governmental Authority shall have issued an orderEntity takes any action or enacts, decree promulgates or ruling issues or taken any other action permanently enjoining, restraining or otherwise prohibiting deems applicable to the transactions contemplated hereby any statute, rule, regulation or order which would make consummation of the transactions contemplated hereby illegal;
(I) by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the right any Seller upon receipt of a written notice from Purchaser pursuant to Section 7.2(C) (so long as Purchaser is not entitled to terminate this Agreement pursuant to this paragraph (b)(iiSection 9.1(E) shall not be available to any party whose failure to comply with Section 6.5 has caused as a result of the matter or primarily resulted matters specified in such action by such Governmental Authoritynotice);
(iiiJ) by Purchaser, if at any time after 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 date hereof there has occurred a Material Adverse Effect; provided, however, if such failure Change with respect 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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actionsSellers; orand
(K) by any Seller, if at any time after the date hereof a Material Adverse Change has occurred with respect to the Purchaser.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Fi Tek Vii Inc), Asset Purchase Agreement (Ronco Corp)
Termination. This Agreement may be terminated and the Merger transactions contemplated by this Agreement may be abandoned at any time before prior to the Effective Time, Closing (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 approval of this Agreement by the Company Shareholder Approval (if required by applicable law) onlyShareholders), as follows:
(a) by mutual written consent agreement of DIMON and the partiesCompany;
(b) by either Parent of the Company or the CompanyDIMON:
(i) if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to the close of business on April before June 30, 2005 (or September 30, 2005 if the “Outside Date“only condition remaining unfulfilled on June 30, 2005 is any required approval by any Governmental Entity or the expiration of any waiting period); provided, however, that the right to terminate this Agreement pursuant to this paragraph clause (b)(ii) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of the Effective Time to occur on or before such date;
(ii) if any Governmental Authority Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use commercially reasonable efforts to lift), in each case permanently enjoiningrestraining, restraining enjoining 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authoritynon-appealable;
(iii) if if, at the representations and warranties Company Shareholders Meeting (including any adjournment or postponement thereof) called pursuant to Section 5.4(a) hereof, the requisite vote 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 Company Shareholders 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 Effectbeen obtained; 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;or
(iv) if, at the DIMON Shareholders Meeting (including any adjournment or postponement thereof) called pursuant to Section 5.4(b) hereof, the requisite vote of the DIMON Shareholders shall not have been obtained.
(c) by the Company:
(a) if the other party Company, after receipt of advice of outside legal counsel to the Company as to whether such action is necessary in order for the Board of Directors of the Company to comply with its duties under applicable Law, subject to complying with the terms of this Agreement, determines to enter into a binding written agreement concerning a transaction that constitutes a Company Superior Proposal and the Company notifies DIMON in writing that it intends to enter into such an agreement, attaching the most current version of such agreement to such notice, (b) DIMON does not make, within fifteen business days of receipt of the Company’s written notification of its intention to enter into a binding agreement for a Company Superior Proposal, an offer to enter into an amendment to this Agreement such that the Board of Directors of the Company determines, in good faith after consultation with its financial advisors, that this Agreement as so amended is at least as favorable, from a financial point of view, to the shareholders of the Company as the Company Superior Proposal and (c) the Company prior to such termination pays to DIMON in immediately available funds any fees required to be paid pursuant to Section 8.3. The Company agrees (A) that it will not enter into a binding agreement referred to in clause (a) above until at least the sixteenth business day after it has provided the notice to DIMON required thereby and (B) to notify DIMON promptly if its intention to enter into a written agreement referred to in its notification shall change at any time after giving such notification;
(ii) if DIMON shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement; provided, howeverwhich breach cannot be or has not been cured, if a breach or failure is curable on or before the Outside Datein all material respects, then only upon the failure of the other party to cure such breach within 20 calendar 30 days after receipt the giving of written notice thereof or if such breach or failure could not reasonably be expected to be cured within such 20 calendar days and DIMON by 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.Company; or
(ciii) by Parent if before the purchase of the Shares pursuant if, at any time prior to the OfferEffective Time, (i) the board Board of trustees Directors of the Company or any committee thereof DIMON shall have (x) withdrawn or adversely modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger this Agreement or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm reconfirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of written request by the Company or any committee thereof shall have resolved to take any of the foregoing actions; ordo so.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Dimon Inc), Agreement and Plan of Reorganization (Standard Commercial Corp)
Termination. This Notwithstanding anything herein to the contrary, this Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, 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 Midstream Unitholder Approval (if required by applicable law) onlyof this Agreement:
(a) by By the mutual written consent of the parties;CEQP and Midstream in a written instrument.
(b) by By either Parent CEQP or Midstream upon written notice to the Companyother, if:
(i) if the purchase of the Shares pursuant to the Offer shall Merger has not have occurred been consummated on or prior to the close of business on April 30before December 31, 2005 2015 (the “Outside Termination Date“”); provided that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to a party whose failure to fulfill any material obligation under this Agreement or other material breach of this Agreement has been the primary cause of, or resulted in, the failure of the Merger to have been consummated on or before such date;
(ii) any Regulatory Authority has issued a statute, rule, order, decree or regulation or taken any other action, in each case permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger or any of the Merger Transactions or making the Merger or any of the Merger Transactions illegal and such statute, rule, order, decree, regulation or other action shall have become final and nonappealable (provided that the terminating party is not then in breach of Section 6.1);
(iii) Midstream fails to obtain the Midstream Unitholder Approval at the Meeting; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.1(b)(iii) shall not be available to any party whose Midstream where the failure to perform any obtain the Midstream Unitholder Approval shall have been caused by the action or failure to act of its obligations under Midstream and such action or failure to act constitutes a material breach by Midstream of this Agreement has been the cause of, or resulted in, such purchase not occurring before such dateAgreement;
(iiiv) if there has been a material breach of or any Governmental Authority shall have issued an order, decree material inaccuracy in any of the representations or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by warranties set forth in this Agreement on the part of any of the other parties (treating CEQP and Equity GP as one party for the purposes of this Section 8.1 and treating Midstream and Midstream GP as one party for the purposes of this Section 8.1), which breach is not cured within 30 days following receipt by the breaching party of written notice of such orderbreach from the terminating party, decree or ruling which breach, by its nature, cannot be cured prior to the Termination Date (provided in any such case that the terminating party is not then in material breach of any representation, warranty, covenant or other action shall have become final and nonappealableagreement contained herein); provided, however, that no party shall have the right to terminate this Agreement pursuant to this paragraph Section 8.1(b)(iv) unless the breach of a 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 7.4 (b)(iiin the case of a breach of representation or warranty by CEQP or Equity GP) shall or Section 7.5 (in the case of a breach of representation or warranty by Midstream or Midstream GP); or
(v) if there has been a material breach of any of the covenants or agreements set forth in this Agreement on the part of any other party, which breach has not been cured within 30 days following receipt by the breaching party of written notice of such breach from the terminating party, or which breach, by its nature, cannot be available cured prior to the Termination Date (provided in any such case that the terminating party whose failure to comply with Section 6.5 has caused is not then in material breach of any representation, warranty, covenant or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party agreement 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(iherein), 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 that no event later than the Outside Date;
(iv) if the other party shall have breached or failed the right to perform in any material respect any terminate this Agreement pursuant to this Section 8.1(b)(v) unless the breach of its covenants or agreements, together with all other such breaches, would entitle the party receiving the benefit of such covenants or agreements contained not to consummate the transactions contemplated by this Agreement under Section 7.4 (in this Agreement; provided, however, if the case of a breach of covenants or failure is curable on agreements by CEQP or before Equity GP) or Section 7.5 (in the Outside Date, then only upon the failure case of the other party to cure such a breach within 20 calendar days after receipt of written notice thereof covenants or if such breach agreements by Midstream 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 DateMidstream GP).
(c) by Parent if before By CEQP, upon written notice to Midstream, in the purchase of event that a Midstream Change in Recommendation has occurred.
(d) By Midstream, upon written notice to CEQP, in the Shares pursuant to the Offer, event that (i) the board of trustees of the Company or any committee thereof shall have (x) withdrawn or modified a Midstream Change in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this AgreementRecommendation has occurred, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) Midstream has not knowingly and intentionally materially breached Section 6.7 and (iii) Midstream has paid CEQP’s Expenses pursuant to Section 9.1(b) and Section 9.1(e).
(e) By CEQP, at any time prior to obtaining the board of trustees of Midstream Unitholder Approval, upon written notice to Midstream, in the Company or any committee thereof shall have resolved event that the CEQP GP Board determines to take any of abandon the foregoing actions; ortransactions contemplated herein.
Appears in 2 contracts
Sources: Merger Agreement (Crestwood Midstream Partners LP), Merger Agreement
Termination. This Agreement may be terminated and the Merger and transactions contemplated by this Agreement may be abandoned at any time before prior to the Effective Time, Time (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 approval of this Agreement by the Company Shareholder Approval (if required by applicable law) onlyStockholders), as follows:
(a) by mutual written consent of the partiesCompany and Parent;
(b) by either of Parent or the Company:
(i1) if the purchase of Stockholders do not approve the Shares pursuant to Merger by the Offer shall not have occurred on requisite vote at the Company's Special Meeting (including any adjournment or prior to the close of business on April 30, 2005 postponement thereof) (the “Outside Date“); provided, however, that the right to Company may not terminate this Agreement pursuant to this paragraph Section 8.1(b)(1) unless following the Special Meeting it has given Parent at least twenty-four (b)(i24) shall not be available hours prior written notice of Company's intention to any party whose failure terminate pursuant to perform any of its obligations under this Agreement has been the cause of, or resulted in, such purchase not occurring before such dateSection 8.1(b)(1));
(ii2) if any Governmental Authority Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which permanently enjoiningrestrains, restraining enjoins or otherwise prohibiting prohibits consummation of the transactions contemplated by this Agreement Merger and such order, decree or decree, ruling or other action shall have become final and nonappealablenon-appealable;
(3) if there shall be any Law enacted, promulgated or issued and deemed applicable to the Merger by any Governmental Entity which would make consummation of the Merger illegal; or
(4) if the Merger shall not have been consummated by September 26, 2003; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iiSection 8.1(b)(4) shall not be available to any party whose failure, or whose Affiliate's failure to comply with Section 6.5 fulfill any obligation under this Agreement has caused been the cause of, or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party contained in this Agreementin, 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 Effective Time to cure occur on or before 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;date.
(ivc) if by the other party Company if:
(1) Parent or Merger Sub shall have breached or failed to perform in any material respect any of its their respective representations, warranties, covenants or other agreements contained in this Agreement, which breach (A) cannot be or has not been cured, in all material respects, within 20 business days after the giving of written notice to Parent or Merger Sub, as applicable, and (B) would result in the failure to satisfy a condition set forth in Section 7.2; or
(2) if the Average Share Value ending on and including the day two (2) trading days before the Closing Date is less than $37.00; provided, however, if a breach or failure is curable that the Company may not terminate this Agreement pursuant to this Section 8.1(c)(2) unless it gives Parent written notice no later than 12:00 Noon Eastern Time on or the day prior to the Closing Date of its intention to so terminate and, provided, further, that in such case Parent shall have the right, exercisable in its sole discretion by written notice delivered prior to 12:00 Noon Eastern Time on the Closing Date, to irrevocably agree that, notwithstanding the provisions of the Collar, the Exchange Ratio shall equal $7.55 divided by the Average Share Value ending on and including the day two (2) trading days before the Outside Closing Date, then only upon in which case this Agreement shall not be so terminated and the failure of Company shall have no further right to terminate this Agreement pursuant to this Section 8.1(c)(2).
(d) by Parent if:
(1) the Company shall have breached in any material respect any representation, warranty, covenant or other party to cure such agreement contained in this Agreement, which breach (A) cannot be or has not been cured, in all material respects, within 20 calendar business days after receipt the giving of written notice thereof or if such breach or to the Company and (B) would result in the 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 satisfy a condition set forth in no event later than the Outside Date.Section 7.3;
(c) by Parent if before the purchase of the Shares pursuant to the Offer, (i2) the board Board of trustees Directors of the Company (A) withholds or any committee thereof shall have withdraws its recommendation of the Merger or, (xB) withdrawn or modified modifies its recommendation of the Merger in a manner adverse to Parent Parent;
(3) a tender offer or Subsidiary its approval exchange offer for ten percent (10%) or recommendation more of the Merger outstanding shares of Company Common Stock shall have been commenced or a registration statement with respect thereto shall have been filed (other than by Parent of an affiliate thereof) and the other transactions contemplated by this AgreementBoard of Directors of Company shall, notwithstanding its obligations hereunder, have (yA) approved recommended that the Stockholders tender their shares in such tender or recommended any Takeover Proposal exchange offer or (zB) publicly announced its intention to take no position with respect to such tender offer;
(4) the Company is in material breach of any of the provisions of Section 6.13;
(5) an Acquisition Proposal shall have been announced or otherwise become publicly known and the Board of Directors of Company shall have (A) failed to reaffirm its recommendation recommend against acceptance of such by the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal Stockholders (including by taking no position, or indicating its inability to take a position, with respect to the filing acceptance by the Stockholders of an Acquisition Proposal involving a Schedule 13D with the SECtender offer or exchange offer) or (iiB) failed to reconfirm, publicly, by means of a press release or other comparable written disclosure, upon written request of Parent, its approval and recommendation of this Agreement and the board transactions contemplated hereby, in each case within ten (10) business days thereafter; or
(6) if the Average Share Value ending on and including the day two (2) trading days before the Closing Date is more than $65.00; provided, however, that Parent may not terminate this Agreement pursuant to this Section 8.1(d)(6) unless it gives the Company written notice no later than 12:00 Noon Eastern Time on the day prior to the Closing Date of trustees its intention to so terminate and, provided, further, that in such case the Company shall have the right, exercisable in its sole discretion by written notice delivered prior to 12:00 Noon Eastern Time on the Closing Date, to irrevocably agree that, notwithstanding the provisions of the Company or any committee thereof Collar, the Exchange Ratio shall equal $8.95 divided by the Average Share Value ending on and including the day two (2) trading days before the Closing Date, in which case this Agreement shall not be so terminated and Parent shall have resolved no further right to take any of the foregoing actions; orterminate this Agreement pursuant to this Section 8.1(d)(6).
Appears in 2 contracts
Sources: Merger Agreement (Career Education Corp), Merger Agreement (Whitman Education Group Inc)
Termination. This Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Merger contemplated herein may be abandoned at any time before prior to the Effective Time, 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 applicable law) onlystockholder approval thereof:
(a) by By the mutual written consent of the parties;Board of Directors of Parent and the Board of Directors of the Company.
(b) by By either Parent of the Board of Directors of the Company or the CompanyBoard of Directors of Parent:
(i) if the purchase of the Shares pursuant to the Offer Merger shall not have occurred been consummated on or prior to the close of business on April 30before December 31, 2005 (the “Outside Date“)1999; provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.1(b)(i) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of the Merger to have been consummated on or before such date;; and provided, further, that such date shall be extended to March 31, 2000 if on December 31, 1999 (x) any Parent Required Statutory Approval or Company Required Statutory Approval has not been obtained but is being diligently pursued and (y) all other conditions to the consummation of the transactions contemplated hereby are then capable of being satisfied; or
(ii) if any Governmental Authority shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), in each case, permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree or decree, ruling or other action shall have become final and nonappealablenon-appealable; or
(iii) if any required approval of the stockholders of Parent for the issuance of shares of Parent Common Stock pursuant to the Merger shall not have been obtained at a duly held meeting of stockholders or at any adjournment thereof; provided, however, that the right to terminate under this Agreement pursuant to this paragraph (b)(iiSection 8.1(b)(iii) shall not be available to any party whose failure to comply with Section 6.5 fulfill any obligations under this Agreement has caused been the cause of, or primarily resulted in in, the failure of such action by such Governmental Authority;approval to have been obtained; or
(iiiiv) if the representations and warranties any required approval of the other party contained in stockholders of the Company of the Merger and 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 Agreement shall not be disregarded), shall not be true and correct, with only such exceptions as, individually have been obtained at a duly held meeting of stockholders or in the aggregate, have not had a Material Adverse Effectat any adjournment thereof; provided, however, if such that the right to terminate under this Section 8.1(b)(iv) shall not be available to any party whose failure to be true and correct is curable on fulfill any obligations under this Agreement has been the cause of, or before the Outside Dateresulted in, then only upon the failure of the other party such approval 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 Datebeen obtained.
(c) by Parent if before By the purchase Board of the Shares pursuant to the Offer, Directors of Parent:
(i) if, prior to the board Effective Time, the Board of trustees Directors of the Company Parent (or any committee thereof thereof) shall have (x) withdrawn withdrawn, or modified or changed in a manner adverse to Parent or Subsidiary the Company, its approval or recommendation of the issuance of shares of Parent Common Stock pursuant to the Merger or in order to approve and permit Parent to execute a definitive agreement providing for a Superior Proposal; provided that (A) at least 5 business days prior to terminating this Agreement pursuant to this Section 8.1(c)(i) Parent has provided the other Company with written notice advising the Company that the Board of Directors of Parent has received a Superior Proposal that it intends to accept, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal and (B) Parent shall have caused its financial and legal advisors to negotiate in good faith with the Company to make such adjustments in the terms and conditions of this Agreement as would enable Parent to proceed with the transactions contemplated by herein on such adjusted terms; and further provided that simultaneously with any termination of this Agreement pursuant to this Section 8.1(c)(i), Parent shall pay to the Company the Termination Fee (as defined in Section 8.3(b) hereof); and further provided that Parent may not terminate this Agreement pursuant to this Section 8.1(c)(i) if Parent is in material breach of this Agreement; or
(ii) if, prior to the Effective Time, the Company breaches or fails in any material respect to perform or comply with any of its material covenants and agreements contained herein or breaches its representations and warranties in any material respect, which breach cannot be or has not been cured within 30 days after the giving of written notice by Parent to the Company and which breach of a covenant, representation or warranty could reasonably be expected to result in a Company Material Adverse Effect; provided that Parent may not terminate this Agreement pursuant to this Section 8.1(c)(ii) if Parent is in material breach of this Agreement;
(yd) approved By the Board of Directors of the Company:
(i) if, prior to the Effective Time, the Board of Directors of Parent (or any committee thereof) shall have (A) recommended any Takeover a Parent Acquisition Proposal or offer (zB) failed withdrawn, modified or changed in a manner adverse to reaffirm the Company its approval or recommendation of the Merger and issuance of shares of Parent Common Stock pursuant to the Merger, (C) taken a position in accordance with the last sentence of Section 6.2(a) adverse to the Company, (D) executed an agreement in principle (or similar agreement) or definitive agreement providing for a tender offer or exchange offer for any shares of capital stock of Parent, or a merger, consolidation or other transactions contemplated by business combination with a Person other than the Company, or (E) resolved to do any of the foregoing; provided that the Company may not terminate this Agreement within five business days after pursuant to this Section 8.1(d)(i) if the public announcement Company is in material breach of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or this Agreement;
(ii) if Parent breaches its agreements contained in the board first two sentences of trustees of Section 6.2(a) or breaches in any material respect its agreements contained in Section 6.2(a) other than the first two sentences thereof; provided that the Company may not terminate this Agreement pursuant to this Section 8.1(d)(ii) if the Company is in material breach of this Agreement; or
(iii) if, prior to the Effective Time, Parent breaches or fails in any committee thereof shall have resolved material respect to take perform or comply with any of the foregoing actions; orits material covenants or agreements contained herein (other than Section 6.2(a)) or breaches its representations and warranties in any material respect,
Appears in 2 contracts
Sources: Merger Agreement (Morgan Associates Inc), Merger Agreement (Kinder Richard D)
Termination. This Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Merger Mergers contemplated herein may be abandoned at any time before prior to the TiVo Effective Time, 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 TiVo Stockholder Approval and/or the Company Shareholder Approval (if required by applicable law) onlyRovi Stockholder Approval:
(a) by By the mutual written consent of the parties;Rovi and TiVo.
(b) by By either Parent of TiVo or the CompanyRovi:
(i) if any Governmental Entity in the purchase of United States shall have issued an Order permanently restraining, enjoining or otherwise prohibiting the Shares Transactions and such Order shall have become final and non-appealable; provided, that the Principal Party seeking to terminate this Agreement pursuant to the Offer this Section shall have used its reasonable best efforts to contest, appeal and remove such Order in accordance with Section 5.9, and shall not have occurred on breached any representations, warranties, covenants or prior to other agreements contained in this Agreement that resulted in or caused the close issuance of business on April 30such Order;
(ii) if the Transactions shall not have been consummated by October 14, 2005 2016 (the “Outside Date“”); provided, however, that if the conditions set forth in Section 6.1(c), Section 6.1(e) or Section 6.2(e) shall not have been satisfied or duly waived by all Parties entitled to the benefit of such condition by the fifth (5th) Business Day prior to the Outside Date, either Rovi or TiVo may, by written notice delivered to the other Principal Party, extend the Outside Date from time to time to a date not later than three (3) months from its originally scheduled expiry (in which case any references to the Outside Date herein shall mean the Outside Date as extended); provided, further, that the right to terminate this Agreement pursuant to this paragraph (b)(iSection 7.1(b)(ii) shall not be available to any party whose TiVo or Rovi if its action or failure to perform act constitutes a material breach or violation of any of its covenants, agreements or other obligations under this Agreement has been the cause of, hereunder and such material breach or violation caused or resulted in, such purchase not occurring before such datein (1) the failure to satisfy the conditions to the obligations of the terminating Party to consummate the Merger set forth in Article VI prior to the Outside Date (as the same may be extended) or (2) the failure of the Closing to occur by the Outside Date (as the same may be extended);
(iiiii) if the Rovi Stockholders Meeting (following any Governmental Authority and all adjournments and postponements) shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting finally concluded and the transactions contemplated by this Agreement and such order, decree or ruling or other action Rovi Stockholder Approval shall not have become final and nonappealablebeen obtained; provided, however, that Rovi may not terminate this Agreement pursuant to this Section 7.1(b)(iii) if Rovi has breached in any material respect its obligations under Section 5.3(c) of this Agreement in a manner that caused or resulted in the failure of the Rovi Stockholder Approval to be obtained; or
(iv) if the TiVo Stockholders Meeting (following any and all adjournments and postponements) shall have finally concluded and the TiVo Stockholder Approval shall not have been obtained; provided, however, that TiVo may not terminate this Agreement pursuant to this Section 7.1(b)(iv) if TiVo has breached in any material respect its obligations under Section 5.3(b) of this Agreement in a manner that caused or resulted in the failure of the TiVo Stockholder Approval to be obtained.
(c) By TiVo:
(i) if (A) the Rovi Board or any committee makes, prior to the Rovi Stockholders Meeting, a Rovi Adverse Recommendation Change, (B) the Rovi Board or any committee thereof shall have failed to include the Rovi Recommendation in the Joint Proxy Statement/Prospectus distributed to its stockholders, (C) a tender offer or exchange offer is commenced and the Rovi Board shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the commencement of such tender offer or exchange offer, (D) the Rovi Board or any committee thereof shall have refused to affirm publicly the Rovi Recommendation following any reasonable written request by TiVo to provide such reaffirmation (including in the event of a Takeover Proposal (other than pursuant to a commenced tender offer or exchange offer) having been publicly disclosed) prior to the earlier of (x) ten (10) calendar days following such request and (y) five (5) Business Days prior to the Rovi Stockholders Meeting (provided, in the case of clause (y), that if such request is made less than eight (8) Business Days prior to such meeting, then, notwithstanding the foregoing, the Rovi Board or any committee thereof shall have four (4) Business Days to respond to such request for reaffirmation), it being further agreed that no such request for such affirmation shall be made except once per Takeover Proposal or material modification of such Takeover Proposal that, in the reasonable judgment of TiVo, calls into question whether the Rovi Stockholder Approval will be obtained or (E) the Rovi Board formally resolves to take or publicly announces an intention to take any of the foregoing actions; provided, that the right to terminate this Agreement pursuant to foregoing clauses (A) through (E) which arises following the commencement or announcement of a Takeover Proposal shall expire if not exercised prior to the tenth (10th) Business Day following the date on which a right to terminate under this paragraph Section 7.1(c)(i) first arose or the Rovi Stockholder Approval shall have already been obtained;
(b)(iiii) prior to the receipt of the Rovi Stockholder Approval, if Rovi shall not be available in Willful Breach of its obligations pursuant to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority5.4;
(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 Rovi shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Sections 6.3(a) or 6.3(b) (assuming that the date of such determination is the Closing Date) and (ii) is incapable of being cured by Rovi by the Outside Date (as the same may be extended); provided, however, TiVo shall not have a right to terminate this Agreement pursuant to this Section 7.1(c)(iii) if it is then in breach of any representations, warranties, covenants or other agreements contained in this Agreement; provided, however, if Agreement that would result in a breach or failure is curable on or before the Outside Date, then only upon the failure of a condition set forth in Section 6.1 or Section 6.2; or
(iv) prior to 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 DateTiVo Stockholder Approval, so that TiVo may enter into a definitive agreement providing for a Superior Proposal.
(cd) by Parent if before the purchase of the Shares pursuant to the Offer, By Rovi:
(i) if (A) the board of trustees of TiVo Board or any committee makes, prior to the Company TiVo Stockholders Meeting, a TiVo Adverse Recommendation Change, (B) the TiVo Board or any committee thereof shall have failed to include the TiVo Recommendation in the Joint Proxy Statement/Prospectus distributed to its stockholders, (xC) withdrawn a tender offer or modified in a manner adverse exchange offer is commenced and the TiVo Board shall have failed to Parent recommend against acceptance of such tender offer or Subsidiary exchange offer by its approval or recommendation stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Merger Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten (10) Business Days of the other transactions contemplated by this Agreementcommencement of such tender offer or exchange offer, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (iiD) the board of trustees of the Company TiVo Board or any committee thereof shall have resolved refused to affirm publicly the TiVo Recommendation following any reasonable written request by Rovi to provide such reaffirmation (including in the event of a Takeover Proposal (other than pursuant to a commenced tender offer or exchange offer) having been publicly disclosed) prior to the earlier of (x) ten (10) calendar days following such request and (y) five (5) Business Days prior to the TiVo Stockholders Meeting (provided, in the case of clause (y), that if such request is made less than eight (8) Business Days prior to such meeting, then, notwithstanding the foregoing, the TiVo Board or any committee thereof shall have four (4) Business Days to respond to such request for reaffirmation), it being further agreed that no such request for such affirmation shall be made except once per Takeover Proposal or material modification of such Takeover Proposal that, in the reasonable judgment of Rovi, calls into question whether the TiVo Stockholder Approval will be obtained or (E) the TiVo Board formally resolves to take or publicly announces an intention to take any of the foregoing actions; provided, that the right to terminate this Agreement pursuant to foregoing clauses (A) through (E) which arises following the commencement or announcement of a Takeover Proposal shall expire if not exercised prior to the tenth (10th) Business Day following the date on which a right to terminate under this Section 7.1(d)(i) first arose or the TiVo Stockholder Approval shall have already been obtained.
(ii) prior to the receipt of the TiVo Stockholder Approval, if TiVo shall be in Willful Breach of its obligations pursuant to Section 5.4; or
(iii) if TiVo shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Sections 6.2(a) or 6.2(b) (assuming that the date of such determination is the Closing Date) and (ii) is incapable of being cured by TiVo by the Outside Date (as the same may be extended); provided, however, that Rovi shall not have a right to terminate this Agreement pursuant to this Section 7.1(d)(iii) if it is then in breach of any representations, warranties, covenants or other agreements contained in this Agreement that would result in a failure of a condition set forth in Section 6.1 or Section 6.3; or
(iv) prior to the receipt of the Rovi Stockholder Approval, so that Rovi may enter into a definitive agreement providing for a Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Tivo Inc), Agreement and Plan of Merger (Rovi Corp)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after Closing as follows (the Company Shareholder Approval (if required by applicable law) only:actual date on which this Agreement is terminated being referred to herein as the "TERMINATION DATE"):
(a) at any time on or prior to the Closing Date, by mutual written consent of the partiesSellers and Buyer;
(b) at the election of Sellers, if any one or more of the conditions to the obligations of Sellers to close as set forth in Section 6.2 has not been fulfilled prior to the Outside Date;
(c) at the election of Buyer, if any one or more of the conditions to the obligations of Buyer to close as set forth in Section 6.1 has not been fulfilled prior to the Outside Date;
(d) at the election of Sellers, if either (i) Buyer has materially breached any representation, warranty, covenant or agreement contained in this Agreement, which breach cannot be or is not cured prior to the Outside Date or (ii) the Closing has not occurred within five (5) business days of the waiver or satisfaction of the conditions set forth in Section 6.1, through no fault of Sellers;
(e) at the election of Buyer, if Sellers have breached any representation, warranty, covenant or agreement contained in this Agreement, which breach cannot be or is not cured prior to the Outside Date, unless such breach would not have a Material Adverse Effect;
(f) by either Parent Buyer or Sellers, if any Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action restraining, enjoining or otherwise prohibiting the CompanyTransactions (which the party seeking to terminate this Agreement shall have used all reasonable efforts to have lifted or reversed) and such Order shall have become final and nonappealable; or
(g) by either Buyer or Sellers, upon the entry of an order of the Court authorizing the sale of the Business to a Person other than Buyer or another entity designated by Buyer;
(h) by either Buyer or Sellers if:
(iA) if the purchase of the Shares pursuant to the Offer shall Closing has not have occurred on or before September 30, 2000, unless extended by written notice delivered by Buyer or Sellers at least five (5) Business Days prior to the close of business on April 30, 2005 such date (the “Outside Date“)"OUTSIDE DATE") and agreed to by the other party, time being of the essence; providedprovided that, howeverin the event that a filing in respect of the Transactions is required under the HSR Act, that the right neither Buyer nor Seller shall be permitted to terminate this Agreement pursuant to this paragraph (b)(iSection 7.2(h)(A) shall not be available unless a Governmental Authority prohibits the consummation of the Transactions or requires a material change to any party whose failure the Transactions in order to perform any of its obligations under this Agreement has been comply with the cause of, or resulted in, such purchase not occurring before such dateHSR Act;
(iiB) if any Governmental Authority shall have issued an order, decree the Case is dismissed 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, however, that the right converted to terminate this Agreement a Chapter 7 bankruptcy pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authorityprovisions of the Bankruptcy Code;
(iiiC) 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 Interim Order has 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 been entered on or before the Outside DateAugust 14, 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;2000; or
(ivD) 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 Sale Order has not been entered on or before the Outside DateSeptember 15, 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 Date2000.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Pad & Paper Co), Asset Purchase Agreement (American Pad & Paper Co)
Termination. This Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant or, subject to the Offer terms of this Agreement, after receipt of the Buyer Stockholder Approval or after the Company Shareholder Approval (if required by applicable law) onlyCFC Stockholder Approval, as follows:
(a) by mutual written consent of the partiesBuyer and CFC;
(b) by either Parent Buyer or CFC, if any Governmental Entity has issued an order or taken any other action permanently enjoining, restraining, or otherwise prohibiting the Company:
(iconsummation of the Merger, and such order or other action is final and non-appealable. The right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the Party seeking to terminate if the purchase failure of the Shares pursuant such Party to the Offer shall not have occurred on perform any of its obligations under this Agreement required to be performed at or prior to the close Effective Time has been the cause of business the issuance of such an order or the taking of such an action;
(c) by either Buyer or CFC, if the Merger does not occur on April 30, 2005 or before the first anniversary of the date of this Agreement (the “Outside End Date“”); provided, however, that (i) the End Date may be extended by mutual written consent of the Parties, and (ii) if on the End Date, any of the conditions to Closing set forth in Sections 7.1(c) or 7.1(e) shall not have been satisfied but all other conditions to Closing set forth in Article VII shall be satisfied or capable of being satisfied, then the End Date shall be extended an additional 30 days if either Party notifies the other Party in writing on or prior to the End Date of its election to extend the End Date; provided, further, that the right to extend the End Date and the right to terminate this Agreement pursuant to this paragraph (b)(iSection 8.1(c) shall not be available to any party whose the Party seeking to extend or terminate if the failure of such Party to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, of the failure of the Effective Time to occur on or resulted in, such purchase not occurring before such datethe End Date;
(d) by either Buyer or CFC, if (i) the Buyer Stockholder Meeting (including any adjournments thereof) shall have concluded and been finally adjourned and the Buyer Stockholder Approval shall not have been obtained or (ii) if the CFC Stockholder Meeting (including any Governmental Authority adjournments) shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting concluded and been finally adjourned and the transactions contemplated by this Agreement and such order, decree or ruling or other action CFC Stockholder Approval shall not have become final and nonappealable; provided, however, that the been obtained. The right to terminate this Agreement pursuant to this paragraph (b)(iiSection 8.1(d) shall not be available to the Party seeking to terminate if the failure of such Party to perform any party whose failure of its obligations under this Agreement required to comply with Section 6.5 be performed at or prior to the Buyer Stockholder Meeting or the CFC Stockholder Meeting, as applicable, has caused been the cause of the Buyer Stockholder Approval or primarily resulted in such action by such Governmental Authoritythe CFC Stockholder Approval, as applicable, not having been obtained;
(iiie) 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, howeverby CFC, 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 Buyer shall have breached or failed to perform in any material respect any of its covenants representations, warranties, covenants, or other agreements contained in this Agreement; provided, however, if a which breach or failure is curable on to perform (i) would result in a failure of a condition set forth in Section 7.1 or before Section 7.2 and (ii)(A) cannot be cured by the Outside End Date or (B) if capable of being cured by the End Date, then only upon the failure of the other party to cure such breach shall not have been cured within 20 calendar 30 days after following receipt of written notice thereof (which notice shall specify in reasonable detail the nature of such breach or failure and CFC’s intention to terminate this Agreement if such breach or failure could is not reasonably be expected cured) from CFC of such breach or failure; provided, that CFC shall not have a right 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 terminate this Agreement pursuant to the Offerthis Section 8.1(e) if it is then in breach of any representation, (i) the board of trustees of the Company warranty, covenant, or any committee thereof shall have (x) withdrawn or modified other agreement contained in this Agreement that would result in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement failure of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) condition set forth in Section 7.1 or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orSection 7.3;
Appears in 2 contracts
Sources: Merger Agreement (Carolina Financial Corp), Merger Agreement (Carolina Financial Corp)
Termination. (a) This Agreement may be terminated and the Merger transactions contemplated herein may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(ai) by the Company or the Purchaser, if the Closing has not occurred by December 31, 1997;
(ii) by mutual written consent of the partiesCompany and the Purchaser;
(biii) by the Company, if there has been a material misrepresentation or breach of warranty on the part of the Purchaser in the representations and warranties contained herein or a material breach of covenants on the part of the Purchaser and the same has not been cured within 30 days after notice thereof;
(iv) by the Purchaser, if there has been a material misrepresentation or breach of warranty on the part of the Company in the representations and warranties contained herein or a material breach of covenants on the part of the Company and the same has not been cured within 30 days after notice thereof;
(v) by the Purchaser, in accordance with Section 4.6, if the terms of the Additional Commitment Letter are materially and adversely different from those contained in the August 6th Commitment Letter; or
(vi) by either Parent the Purchaser or the 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 Governmental Authority Entity shall have issued an a final order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Asset Acquisition or the transactions contemplated by this Agreement and such order, decree or decree, ruling or other action shall have become final and nonappealable; provided, howeverprovided that the party seeking to terminate shall have used its best efforts to appeal such order, that decree, ruling or other action.
(b) Notwithstanding anything herein to the contrary, the right to terminate this Agreement pursuant to under this paragraph (b)(ii) Section 8.1 shall not be available to any party whose to the extent the failure of such party to comply with Section 6.5 fulfill any of its obligations under this Agreement has caused been the cause of, or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party contained in this Agreementin, 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 Closing 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 occur on or before the Outside Datesuch date (as a result, then only upon the for example, of an action or failure to act causing a 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 Datea condition precedent).
(c) by Parent if before the purchase of the Shares A party terminating this Agreement pursuant to this Section 8.1 shall give written notice thereof the Offerother party hereto, (i) whereupon this Agreement shall terminate and be of no further force and effect, the board of trustees transactions contemplated hereby shall be abandoned without further action by any party and there shall be no liability on the part of the Company or the Purchaser, except as provided in Section 9.7 hereof and except for any committee thereof liability for any willful breach hereof; provided however that the provisions of Sections 5.1, 7.1 and 7.2 shall have (x) withdrawn or modified in a manner adverse to Parent or Subsidiary its approval or recommendation of the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended survive any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orsuch termination.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Chilmark Partners LLC), Stock Purchase Agreement (Nutramax Products Inc /De/)
Termination. This Agreement may be terminated and the Merger may be abandoned at At any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer or after matters presented in connection with the Company Shareholder Approval (if required Merger by applicable law) onlythe shareholders of Omega and/or Online, this Agreement may be terminated:
(a) by mutual written written, executed consent of the partiesOmega and Online;
(b) by either Parent Omega or the Company:
(i) Online, if the purchase of the Shares pursuant to the Offer Closing shall not have occurred on or prior to the close of business on April 30before July 31, 2005 2000 (the “Outside Date“); provided, however, provided that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 8.1(b) shall not be available to any party whose action or failure to perform any of its obligations under this Agreement act has been the cause of, of or resulted in, such purchase not occurring in the failure of the Merger to occur on or before such datedate and such action or failure to act constitutes a material breach of this Agreement);
(iic) by Omega, if (i) Online shall breach any Governmental Authority shall have issued of its representations, warranties, covenants or obligations hereunder to an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting extent that would cause the transactions contemplated by this Agreement condition set forth in Section 7.3(a) not to be satisfied and such order, decree or ruling or other action breach shall not have become final and nonappealable; provided, however, been cured within twenty (20) business days following receipt by Online of written notice of such breach (provided that the right to terminate this Agreement pursuant to this paragraph (b)(ii) by Omega shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted Omega where Omega is at that time in such action by such Governmental Authority;
(iii) if the representations and warranties material breach 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 (ii) 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 Board of the other party to cure such breach within 20 calendar days after receipt Directors 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 Online 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 its recommendation of this Agreement or the Merger or any transaction contemplated hereby in a manner adverse to Parent Omega or Subsidiary shall have resolved to do any of the foregoing, (iii) Online shall have failed to comply in any material respect with the Online Option Agreement or with Section 5.4 or Section 6.2 of this Agreement, or (iv) the Board of Directors of Online shall have recommended, endorsed, accepted or agreed to a Takeover Proposal or shall have resolved to do so;
(d) by Online, if (i) Omega shall breach any of its representations, warranties, covenants or obligations hereunder to an extent that would cause the condition set forth in Section 7.2(a) not to be satisfied and such breach shall not have been cured within twenty (20) business days following receipt by Omega of written notice of such breach (provided that the right to terminate this Agreement by Online shall not be available to Online where Online is at that time in material breach of this Agreement), (ii) the Board of Directors of Omega shall have withdrawn or modified its recommendation of this Agreement or the Merger or any transaction contemplated hereby in a manner adverse to Online or shall have resolved to do any of the foregoing, or (iii) Omega shall have failed to comply in any material respect with the Omega Option Agreement or with Section 5.4 or Section 6.2 of this Agreement;
(e) by Omega, if a Trigger Event (as defined in Section 8.3(d)) or Takeover Proposal shall have occurred in connection with Online and Online's Board of Directors, in connection therewith, does not within five (5) business days of such occurrence (i) reconfirm its approval or and recommendation of the Merger or and this Agreement and the other transactions contemplated by this Agreement, hereby and (yii) approved or recommended any reject such Takeover Proposal or Trigger Event;
(zf) failed by Omega, if (i) a Takeover Proposal shall have occurred in connection with Omega and, in connection therewith, Omega's Board of Directors in compliance with the procedure set forth in Section 5.4 determines in good faith that such Takeover Proposal is a Superior Proposal and that it is required by its fiduciary duty to reaffirm accept such Takeover Proposal and advises Online in writing thereof or (ii) a Trigger Event shall have occurred in connection with Omega and Omega's Board of Directors, in connection therewith determines, within five (5) business days of such occurrence, acting in good faith that it is required by its fiduciary duty to withdraw its recommendation of the Merger and the other transactions contemplated in either case Omega terminates this Agreement;
(g) by this Agreement within five business days after the public announcement of Online, if a Takeover Proposal shall have occurred in connection with Online and, in connection therewith, Online's Board of Directors in compliance with the procedures set forth in Section 5.4 determines in good faith that such Takeover Proposal is a Superior Proposal and that it is required by its fiduciary duty to accept such Takeover Proposal and advises Omega in writing thereof; or
(including the filing h) by either Omega or Online if any permanent injunction or other order of a Schedule 13D with court or other competent authority preventing the SEC) or (ii) the board of trustees consummation of the Company or any committee thereof Merger shall have resolved to take any of the foregoing actions; orbecome final and nonappealable.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Onlinetradinginc Com Corp), Agreement and Plan of Merger and Reorganization (Onlinetradinginc Com Corp)
Termination. This Subject to Section 10.2 hereof, this Agreement may be terminated and the Merger may be Transaction abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyClosing:
(a) by mutual written consent agreement of the partiesPurchaser and Shareholder Representative;
(b) by either Parent Purchaser or the Company:
(i) Shareholder Representative if the purchase of the Shares pursuant to the Offer Closing Date shall not have occurred on or prior to the close of business on April 30by October 1, 2005 (2011 the “Outside Drop-Dead Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 10.1(b) shall not be available to any party whose action or failure to perform act has been a principal cause of or resulted in the failure of the Closing to occur on or before such date and such action or failure to act constitutes breach of this Agreement and provided, further, that Purchaser shall have the right to extend the Drop Dead Date for an additional period to the extent necessary for the Company to satisfy the condition set forth in Section 7.2(e) (except in circumstances contemplated by subsection (c) hereof);
(c) by either Purchaser or the Shareholder Representative if any Governmental Entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction, order or other legal restraint which is in effect and which has the effect of making the Transaction illegal;
(d) by Purchaser if there shall be any action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Transaction by any Governmental Entity, which would constitute an Action of Divestiture;
(e) by Purchaser if it is not in material breach of its obligations under this Agreement and there has been a material breach of any representation, warranty, covenant or agreement of the cause of, Company or resulted in, such purchase not occurring before such date;
(ii) if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by Shareholders contained in this Agreement such that the conditions set forth in Section 7.2(a) or Section 7.2(b) hereof would not be satisfied and such order, decree or ruling or other action shall have become final and nonappealablebreach has not been cured within twenty (20) days after written notice thereof to the Shareholder Representative; provided, however, that no cure period shall be required for a breach which by its nature cannot be cured; or
(f) by the right to terminate Shareholder Representative if neither the Company nor the Shareholders are in material breach of their respective obligations under this Agreement pursuant to this paragraph (b)(ii) shall not be available to and there has been a breach of any party whose failure to comply with Section 6.5 has caused representation, warranty, covenant or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties agreement of the other party Purchaser 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 Agreement such that the representations and warranties contained conditions set forth in Section 4.6(i), for which such qualifiers shall 7.3(a) hereof would not be disregarded), shall satisfied and such breach has not be true and correct, with only such exceptions as, individually or in the aggregate, have not had a Material Adverse Effectbeen cured within twenty (20) days after written notice thereof to Purchaser; provided, however, if such failure to that no cure period shall 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 required for 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 which by its nature cannot 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 Datecured.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Taleo Corp)
Termination. (a) This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required by applicable law) only:
(a) Closing Date by mutual written consent of the parties;Sellers and the Buyer.
(b) This Agreement may be terminated by either Parent the Sellers or the Company:
(i) Buyer if the purchase of the Shares pursuant to the Offer Closing contemplated hereby shall have not have occurred on or prior to before the close first anniversary of business on April 30, 2005 the date of this Agreement (the “Outside "Termination Date“"); provided, however, provided that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 11.1(b)(i) shall not be available to any party whose failure to perform fulfill any of its obligations obligation under this Agreement has been the cause of, or resulted in, such purchase not occurring the failure of either Closing to occur on or before such date;; and provided, further, that if on the first anniversary of the date of this Agreement the conditions to the Closings set forth in either Section 8.1(c) or Section 9.1(c) shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, then the Termination Date shall be the day which is eighteen months from the date of this Agreement.
(c) This Agreement may be terminated by either the Sellers or the Buyer if (i) any governmental or regulatory body, the consent of which is a condition to the obligations of the Sellers and the Buyer to consummate the Closing shall have determined not to grant its or their consent and all appeals of such determination shall have been taken and have been unsuccessful, (ii) if one or more courts of competent jurisdiction in the United States or any Governmental Authority State shall have issued an order, judgment or decree or ruling or taken any other action permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting the transactions contemplated by this Agreement Closing, and such order, judgment or decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused nonappealable or primarily resulted in such action by such Governmental Authority;
(iii) if any statute, rule or regulation shall have been enacted by any State or Federal government or governmental agency in the representations and warranties United States which prohibits the consummation of the other party Closing.
(d) This Agreement may be terminated by the Buyer, if there has been a material violation or breach by the Sellers of any agreement, representation or warranty contained in this Agreement, disregarding all qualifications Agreement which has rendered the satisfaction of any condition to the obligations of the Buyer to effect the Closing impossible and exceptions contained therein relating to materiality such violation or Material Adverse Effect or any similar standard or qualification breach has not been waived by the Buyer.
(except for e) This Agreement may be terminated by 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, howeverSellers, if such failure to be true and correct is curable on there has been a material violation or before breach by the Outside DateBuyer of any agreement, then only upon the failure of the other party to cure such breach within 20 calendar days after receipt of written notice thereof representation 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 warranty contained in this Agreement; provided, however, if a breach or failure is curable on or before Agreement which has rendered the Outside Date, then only upon satisfaction of any condition to the failure obligations of the other party Sellers to cure effect the Closing impossible and such violation or breach within 20 calendar days after receipt of written notice thereof or if such breach or failure could has not reasonably be expected to be cured within such 20 calendar days and been waived by 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 DateSellers.
(cf) This Agreement may be terminated by Parent if before the purchase either 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 Sellers or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D Buyer in accordance with the SECprovisions of Section 7.11(b) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orc).
Appears in 2 contracts
Sources: Asset Purchase Agreement (New England Electric System), Asset Purchase Agreement (Pg&e Corp)
Termination. This Agreement may be terminated and the Merger may be Combination abandoned at any time before prior to the Effective Time, by action taken or authorized by the Board of Directors of the terminating party or parties, and except as provided below, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer or after matters presented in connection with the Merger by the stockholders of the Company Shareholder Approval (if required by applicable law) onlyor Parent:
(a) by By mutual written consent of Parent and the partiesCompany, by action of their respective Boards of Directors;
(b) by By either the Company or Parent or the Company:
(i) if the purchase of the Shares pursuant to the Offer Effective Time shall not have occurred on or prior to before the close 12 month anniversary of business on April 30, 2005 the date of this Agreement (the “Outside Termination Date“”); provided, however, that the right to terminate this Agreement pursuant to under this paragraph (b)(iSection 9.1(b) shall not be available to any party whose failure to perform breach of any provision of its obligations under this Agreement has been the primary cause of, of the failure of the Effective Time to occur on or resulted in, such purchase not occurring before such datethe Termination Date;
(iic) By either the Company or Parent if any Governmental Authority Entity shall have issued an order, decree or ruling or taken any other action action, that has the effect, in each case, of permanently enjoiningrestraining, restraining enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement Agreement, and such order, decree or decree, ruling or other action shall have become final and nonappealablenon-appealable; provided that the party hereto seeking to terminate this Agreement pursuant to this Section 9.1(c) shall have used its reasonable best efforts to remove such restraint or prohibition as required by this Agreement; and provided, howeverfurther, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 9.1(c) shall not be available to any party hereto whose breach of any provision of this Agreement results in the imposition of such order, decree or ruling or the failure of such order, decree or ruling to comply with Section 6.5 has caused be resisted, resolved or primarily resulted in such action by such Governmental Authoritylifted;
(d) By either the Company or Parent if (i) the approval by the stockholders of the Company required for the consummation of the Merger shall not have been obtained by reason of the failure to obtain the Required Company Vote at the Company Stockholders Meeting (or any adjournment or postponement thereof) or (ii) the approval by the stockholders of Parent required for the Parent Share Issuance and the Parent Charter Amendment shall not have been obtained by reason of the failure to obtain the Required Parent Vote at the Parent Stockholders Meeting (or any adjournment or postponement thereof); provided, that the right to terminate this Agreement pursuant to this Section 9.1(d) shall not be available to any party hereto whose breach of Section 7.1(c) or Section 7.1(f), as applicable, resulted in the failure of the requisite vote to be obtained;
(e) By Parent prior to the Company Stockholders Meeting, if (i) there shall have been a Company Change of Recommendation or the Company Board of Directors shall have approved or recommended a Company Superior Proposal (or the Company Board of Directors resolves to do any of the foregoing), (ii) the Company or any of its Subsidiaries shall have entered into any definitive acquisition agreement, merger agreement or similar definitive agreement to consummate a Company Alternative Acquisition Proposal, whether or not permitted by Section 7.4 or (iii) the Company shall be in Intentional Breach of its obligations pursuant to Section 7.4;
(f) By the Company, prior to receipt of the Required Company Vote, if the Company Board of Directors shall have authorized the Company to enter into an Alternative Acquisition Agreement with respect to a Company Superior Proposal in compliance with the applicable provisions of Section 7.4(f); provided that, substantially concurrently with and as a condition to such termination, the Company enters into such Alternative Acquisition Agreement and pays (or causes to be paid) to Parent the Company Termination Fee plus any Enforcement Expenses as specified in Section 9.2(e);
(g) By the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent, Merger Sub 1 or Merger Sub 2 contained in this Agreement such that the conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied and (i) such breach is not reasonably capable of being cured, or (ii) if such breach is reasonably capable of being cured, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach and (B) the Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 9.1(g) if the representations and warranties Company is then in material breach of the other party any of its representations, warranties, covenants or agreements 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;
(ivh) 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 the conditions set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied and (i) such breach is not reasonably capable of being cured or (ii) if such breach is reasonably capable of being cured, such breach shall not have been cured prior to the other party earlier of (A) 30 days following notice of such breach and (B) the Termination Date; provided that Parent shall not have breached the right to terminate this Agreement pursuant to this Section 9.1(h) if Parent, Merger Sub 1 or failed to perform Merger Sub 2 is then in any material respect breach of any of its representations, warranties, 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.or
(c) by Parent if before the purchase of the Shares pursuant to the Offer, (i) the board of trustees of By the Company or any committee thereof prior to the Parent Stockholders Meeting, if (i) there shall have (x) withdrawn or modified in been a manner adverse to Parent or Subsidiary its approval or recommendation Change of the Merger Recommendation or the other transactions contemplated by this Agreement, (y) Parent Board of Directors shall have approved or recommended a Parent Superior Proposal (or the Parent Board of Directors resolves to do any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or foregoing), (ii) the board of trustees of the Company Parent or any committee thereof of its Subsidiaries shall have resolved entered into any definitive acquisition agreement, merger agreement or similar definitive agreement to take any consummate a Parent Alternative Acquisition Proposal, whether or not permitted by Section 7.5, or (iii) Parent shall be in Intentional Breach of the foregoing actions; orits obligations pursuant to Section 7.5.
Appears in 2 contracts
Sources: Merger Agreement (Take Two Interactive Software Inc), Merger Agreement (Zynga Inc)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to approval of the Offer or after stockholders of the Company Shareholder Approval (if required by applicable law) onlydescribed herein:
(a) by mutual written consent of Parent and the partiesCompany;
(b) by either Parent or the 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) Company if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iiic) 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;by Parent if
(ivi) if the other party Company shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement; provided, however, which breach or failure to perform is incapable of being cured or has not been cured within five (5) days after the giving of written notice thereof to the Company (but not later than the expiration of the twenty (20) business day period provided for the Offer under SECTION 1.1(b) hereof);
(ii) any representation or warranty of the Company shall not have been true and correct in all material respects when made;
(iii) any representation or warranty of the Company shall cease to be true and correct in all material respects at any later date as if made on such date (other than representations and warranties made as of a specified date) other than as a result of a breach or failure to perform by the Company of any of its covenants or agreements under this Agreement; PROVIDED, HOWEVER, that such representation or warranty is curable on incapable of being cured or before the Outside Date, then only upon the failure of the other party to cure such breach has not been cured within 20 calendar five (5) days after receipt the giving of written notice thereof or if such breach or failure could to the Company (but 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.
expiration of the twenty (c20) by business day period provided for the Offer under SECTION 1.1(b) hereof); PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant to this SECTION 7.1(c) shall not be available to Parent if before the purchase Purchaser or any other affiliate of the Shares Parent shall acquire shares of Company Common Stock pursuant to the Offer;
(d) by Parent if, whether or not permitted to do so by this Agreement, (i) the board Board of trustees Directors of the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse to Parent or Subsidiary Purchaser its approval or recommendation of the Merger Offer or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or Company Proposals; (ii) the board Board of trustees Directors of the Company or any committee thereof shall have approved or recommended to the stockholders of the Company any Company Takeover Proposal or Alternative Transaction; (iii) the Board of Directors of the Company or any committee thereof shall have approved or recommended that the stockholders of the Company tender their Shares in any tender or exchange offer that is an Alternative Transaction; (iv) the Board of Directors of the Company or any committee thereof shall have taken any position or make any disclosures to the Company's stockholders permitted pursuant to SECTION 4.8(e) which has the effect of any of the foregoing; (v) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actionsactions or (vi) the Board of Directors of the Company or any committee thereof shall have redeemed the Rights, or waived or amended any provision of the Rights Agreement, in any such case to permit or facilitate the consummation of any Company Takeover Proposal or Alternative Transaction;
(e) by either Parent or the Company if, as the result of the failure of the Minimum Condition or any of the other conditions set forth in Annex I hereto, the Offer shall have terminated or expired in accordance with its terms without Purchaser having purchased any Shares pursuant to the Offer, provided that if the failure to satisfy any conditions set forth in Annex I shall be a basis for termination of this Agreement under any other clause of this Section 7.1, a termination pursuant to this clause (e) shall be deemed a termination under such other clause;
(f) by either Parent or the Company if the Offer shall not have been consummated on or before March 31, 1999, PROVIDED that the right to terminate this Agreement pursuant to this SECTION 7.1(f) shall not be available to any party whose failure to perform any of its obligations under this Agreement results in the failure of the Offer to be consummated by such time;
(g) by the Company if Parent or Purchaser shall have breached or failed to perform in any material respect any of its 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 5 days after the giving of written notice thereof to Parent; or
(h) by the Company in accordance with SECTION 4.8(c) hereof; PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant to this SECTION 7.1(h) shall not be available (x) if the Company has breached in any material respect its obligations under SECTION 4.8 hereof, or (y) if the Company shall fail to pay when due the fees and expenses contemplated by SECTION 8.7 hereof. The party desiring to terminate this Agreement pursuant to the preceding paragraphs shall give written notice of such termination to the other party in accordance with SECTION 8.5 hereof.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Alarmguard Holdings Inc), Merger Agreement (Tyco International LTD /Ber/)
Termination. This Agreement may be terminated terminated, and the Merger transactions contemplated hereby may be abandoned abandoned, at any time before prior to the Effective Time, whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant prior to the Offer or after the Company Shareholder Approval (if required approval and adoption of this Agreement and the transactions contemplated hereby by applicable law) onlythe stockholders of the Company, Sub and Parent:
(a) by mutual written consent agreement of Parent and the parties;Company duly authorized by action taken by or on behalf of their respective Boards of Directors; or
(b) by either Parent or the CompanyCompany upon notification to the non-terminating party by the terminating party:
(i) at any time after March 31, 2008 if the purchase of the Shares pursuant to the Offer Merger shall not have occurred been consummated on or prior to such date and such failure to consummate the close Merger is not caused by a breach 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 by the cause of, or resulted in, such purchase not occurring before such dateterminating party;
(ii) if the Company shall not have obtained approval of the Merger by its stockholders by reason of the failure to obtain the requisite vote of such stockholders;
(iii) if any Governmental Authority, the taking of action by which is a condition to the obligations of either the Company or Parent to consummate the transactions contemplated hereby, shall have determined not to take such action and all appeals of such determination shall have been taken and have been unsuccessful;
(iv) if, on or prior to March 31, 2008, there has been a material breach of any representation, warranty, covenant or agreement on the part of the non-terminating party set forth in this Agreement which breach has not been cured within 15 business days following receipt by the non-terminating party of notice of such breach from the terminating party or assurance of such cure reasonably satisfactory to the terminating party shall not have been given by or on behalf of the non-terminating party within such five business day period;
(v) if any court of competent jurisdiction or other competent Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining order making illegal or otherwise restricting, preventing or prohibiting the transactions contemplated by this Agreement Merger and such order, decree or ruling or other action order shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;or
(iiivi) if there shall have occurred (A) any general suspension of, limitation on prices for or trading in securities of Parent on any recognized stock exchange where the representations and warranties shares of the Parent are listed (other party contained in this Agreementthan as a result of the triggering of “circuit-breakers” or other similar stock exchange protection devices), disregarding all qualifications and exceptions contained therein relating to materiality (B) a declaration of a banking moratorium by any federal or Material Adverse Effect state Governmental Authority or any similar standard or qualification (except for the representations and warranties contained suspension of payments 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 respect of banks in the aggregateUnited States or Australia, have and (C) any limitation (whether or not had a Material Adverse Effect; provided, however, if such failure to be true and correct is curable mandatory) by any federal or state Governmental Authority on or before the Outside Date, then only upon the failure extension 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 credit by banks 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 Datelending institutions.
(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 or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; or
Appears in 2 contracts
Sources: Merger Agreement (Progen Pharmaceuticals LTD), Merger Agreement (Progen Pharmaceuticals LTD)
Termination. This Agreement may be terminated and the Merger may be abandoned at any time before prior to the Effective Time, and except as provided below, whether before or after Subsidiary shall have accepted for payment the approval of matters presented in connection with the Merger by the shareholders of Parent and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by applicable law) onlyCompany:
(a) by the mutual written consent of Parent, MergerCo and the partiesCompany;
(b) by either of Parent or MergerCo, or the Company:
(i) if any Governmental Entity shall have enacted, entered, issued, promulgated or enforced a final and nonappealable Injunction (which Injunction the purchase parties hereto shall have used their reasonable best efforts to lift), which prohibits the consummation of the Shares Merger or the other Transactions on the terms contemplated by this Agreement (provided that the party seeking to rely upon this condition has fully complied with and performed its obligations pursuant to Section 6.4 hereof), or permanently enjoins the acceptance for payment of, or payment for, shares of Company Common Stock pursuant to the Offer Merger; or
(ii) if, without any material breach by the terminating party of its obligations under this Agreement, the Merger shall not have occurred on or prior to the close of business on April 30before March 31, 2005 (the “Outside Date“)2003; 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 Governmental Authority 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, however, that the right to terminate this Agreement pursuant to this paragraph (b)(iiSection 8.1(b)(ii) shall not be available to any party whose failure to comply with Section 6.5 any provision of this Agreement has caused or primarily resulted in such action by such Governmental Authority;
(iii) if been the representations and warranties cause 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 Effective Time to cure occur on or before 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 Datedate;
(ivc) if By the other party Company if:
(i) Parent or MergerCo shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to Parent except for any such breach which, individually or together with any one or more such other breaches has not had and is not reasonably likely to have a Parent Material Adverse Effect; or
(ii) Parent or one of its subsidiaries has not, on or before November 15, 2002, obtained any necessary consents required, with respect to agreements existing on such date, under Section 7.1(e) and Parent or one of its subsidiaries does not thereafter obtain such consents prior to the time the Company elects to terminate this Agreement under this Section 8.1(c)(ii);
(d) by Parent if:
(i) the Company shall have breached any of its representations, warranties, covenant or other agreement contained in this Agreement (other than those set forth in Section 6.1 hereof), which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the Company, except for any such breach which, individually or together with any one or more other such breaches, has not had and is not reasonably likely to have a Company Material Adverse Effect;
(ii) the Company shall have breached any representation, warranty, covenant or other agreement contained in the Option Agreement or Section 6.1 of this Agreement, which breach cannot be or has not been cured within thirty (30) days after the giving of written notice to the Company, except for any such breach which, individually or together with any one or more other such breaches, has not prevented or materially delayed, and would not reasonably be expected to prevent or materially delay, the Closing or the performance of this Agreement;
(iii) any required approval of the shareholders of the Company that is a condition to the obligations of Parent, MergerCo or the Company under Section 7.1 of this Agreement shall not have been duly obtained by reason of the failure to obtain the required vote at a duly held meeting of shareholders or at any postponement or adjournment thereof; or
(iv) Parent or one of its subsidiaries has not, on or before November 15, 2002, obtained any necessary consents required, with respect to agreements existing on such date, under Section 7.1(e) and Parent or one of its subsidiaries does not thereafter obtain such consents prior to the time Parent elects to terminate this Agreement under this Section 8.1(d)(iv);
(e) by Parent, if (i) the Company Board shall have failed to make, or shall have withdrawn, amended, modified or changed its approval or recommendation of this Agreement or any of the Transactions; (ii) the Company shall have failed to include the favorable recommendation of its Board of Directors of this Agreement and the Transactions in the Proxy Statement; (iii) the Company Board shall have failed to recommend, or shall have withdrawn or modified its favorable recommendation, that they approve this Agreement and the Merger; (iv) the Company or its Board of Directors shall have approved, recommended, executed or entered into an agreement in principle or definitive agreement relating to an Acquisition Proposal; or (v) the Company or its Board of Directors shall have resolved to do any of the foregoing;
(f) by Parent, if a tender or exchange offer relating to securities of the Company shall have been commenced by a third party and the Company shall not have sent to its securityholders pursuant to Rule 14e-2 under the Exchange Act, within ten (10) business days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Company recommends rejection of such tender or exchange offer; and
(g) by the Company, prior to the Company's shareholders' meeting, concurrently with entering into a definitive agreement to effect a Superior Proposal in accordance with Section 6.1; provided, however, if a breach or failure is curable on or before that prior to terminating this Agreement pursuant to this Section 8.1(g) the Outside Date, then only upon the failure Company shall have provided Parent with five (5) business days prior written notice of the other party Company's decision to cure so terminate. Such notice shall indicate in reasonable detail the terms and conditions of 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 Superior Proposal, including, without limitation, the amount 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 form of the Shares proposed consideration and any conditions to which such Superior Proposal is subject. During such five (5) day period, the Company shall, and shall cause its respective financial and legal advisors to, consider and discuss with Parent and its financial and legal advisors any adjustment in the terms and conditions of this Agreement that Parent may propose; provided further that the Company may not effect such termination pursuant to the Offer, (ithis Section 8.1(g) the board of trustees of unless the Company or any committee thereof shall have (x) withdrawn or modified in a manner adverse immediately prior to such termination pays to Parent or Subsidiary its approval or recommendation of designee the Merger or the other transactions contemplated by this Agreement, (y) approved or recommended any Takeover Proposal or (z) failed Termination Fee due pursuant to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have resolved to take any of the foregoing actions; orSection 8.2 hereof.
Appears in 2 contracts
Sources: Merger Agreement (Ostex International Inc /Wa/), Merger Agreement (Inverness Medical Innovations Inc)