Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company: (a) by mutual written consent of Parent, Merger Sub and the Company; (b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; (c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer; (d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer; (e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer; (f) by Parent in the event that an Adverse Recommendation Change has occurred; (g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or (h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 3 contracts
Sources: Merger Agreement (Abbott Laboratories), Merger Agreement (Kos Pharmaceuticals Inc), Merger Agreement (Jaharis Mary)
Termination. This Agreement may be terminated (and such termination shall have the Merger contemplated hereby may be abandoned effects set forth in Section 11.2 hereof) at any time prior to the Effective Time, notwithstanding approval Closing by written notice by the shareholders terminating party to the other party (except in the case of the Company:termination pursuant to Section 11.1(a) hereof, which requires mutual agreement of all parties or pursuant to Section 11.1(i) hereof, which termination shall be automatic):
(a) by mutual written consent of Parent, Merger Sub Buyer and Sellers whether or not the CompanyAgreement has been approved by the respective directors and stockholders of such parties;
(b) by Parent either Buyer or Sellers, if the Company if transactions contemplated hereby shall not have been consummated on or prior to the Outside Date; provided, however, that the right to terminate this Agreement under this Section 11.1(b) shall not be available to any court party whose failure to fulfill any obligation under this Agreement has been the primary cause of competent jurisdiction or other Governmental Entity located resulted in the failure of the Closing to occur on or having jurisdiction within before the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableOutside Date;
(c) by either Parent Buyer or Sellers, if any Restraint prohibiting or otherwise preventing the purchase of the ACE Lo Equity Interests, the Boardwalk Equity Interests, the Casino Property or the Company if Traymore Site shall be in effect and shall have become final and nonappealable; provided, that, the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c11.1(c) shall have used its commercially reasonable efforts to prevent the entry of and to remove such Restraint and that the right to terminate this Agreement under this Section 11.1(c) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, or resulted inmaterially contributed to, the failure of the Effective Time to occur on or before the Termination Date and action resulting in such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferRestraint;
(d) by the Company Buyer, if Parent or Merger Sub shall have any Selling Party has breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained such Selling Party set forth in this Agreement such that the conditions which (i) would result in a failure of a condition set forth in clause (cSection 10.2(a) or (db) of Exhibit A would hereof and (ii) is not be satisfied andcured in all material respects within sixty (60) calendar days after written notice thereof; provided, in either such casehowever, that if such breach shall cannot have been reasonably be cured within such sixty (60) day period but can be reasonably cured prior to the earlier of (A) 30 days following notice of Outside Date, and such breach Selling Party is diligently proceeding to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representationscure such breach, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e11.1(d); provided, further, that Buyer’s right to terminate this Agreement under this Section 11.1(d) shall not be available if, at the time of such intended termination, Sellers have the right to terminate this Agreement under Section 11.1(e) hereof;
(e) by Sellers, if Buyer has breached any representation, warranty, covenant or agreement on the part of Buyer set forth in this Agreement which (i) would result in a failure of a condition set forth in Section 10.3(a) or (b) hereof and (ii) is not cured in all material respects within sixty (60) calendar days after Parent or Merger Sub accepts Shares for payment written notice thereof; provided, however, that if such breach cannot reasonably be cured within such sixty (60) day period but can be reasonably cured prior to the Outside Date, and Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 11.1(e); provided, further, that Sellers’ right to terminate this Agreement under this Section 11.1(e) shall not be available if, at the Offertime of such intended termination, Buyer has the right to terminate this Agreement under Section 11.1(d), Section 11.1(f) or Section 11.1(h) hereof;
(f) by Parent Buyer, in the event that an Adverse Recommendation Change has occurredAREP Sands does not execute and adopt the Stockholder Consent within one (1) business day following the execution of this Agreement;
(g) by Parent ACE Hi with respect to the ACE Lo Purchase only, in accordance with Section 9.4(b); provided that, in order for the event that a willful termination of this Agreement pursuant to this Section 11.1(g) to be deemed effective, ACE Hi shall have complied with Section 9.4 and material breach with applicable requirements, including the payment of the Termination Fee, of Section 6.4 has occurred; or9.11;
(h) by Parent or Buyer, in the Company after event of a material breach of Section 9.4; or
(i) automatically, if Buyer does not deliver a written notice to elect to effect a Revival pursuant to Section 9.4(e)(iii) hereof within the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiestime period specified therein.
Appears in 3 contracts
Sources: Acquisition Agreement (Pinnacle Entertainment Inc), Acquisition Agreement (American Real Estate Partners L P), Acquisition Agreement (Atlantic Coast Entertainment Holdings Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to before the Effective Time, notwithstanding approval whether before or after Subsidiary shall have accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by the shareholders of the Companyapplicable law) only:
(a) by mutual written consent of Parent, Merger Sub and the Companyparties;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company Company:
(i) if the Effective Time purchase of the Shares pursuant to the Offer shall not have occurred on or before prior to the date which is nine months from the date hereof close of business on April 30, 2005 (the “Termination Outside Date”“); provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(cparagraph (b)(i) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the whose failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or such purchase not occurring before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerdate;
(dii) by the Company if Parent or Merger Sub any Governmental Authority shall have breached issued an order, decree or failed to perform ruling or taken any representationother action permanently enjoining, warranty, covenant restraining or agreement contained in otherwise prohibiting the transactions contemplated by this Agreement (without giving effect to any limitation on any representation and such order, decree or warranty indicated by the words “Parent Material Adverse Effect”ruling or other action shall have become final and nonappealable; provided, “in all material respects”however, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; 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 8.1(d6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the Company 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 breach of respect any of its representations, warranties, covenants or other agreements contained in this Agreement; provided further that this Agreement may 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 terminated pursuant expected to this Section 8.1(dbe 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) after by Parent or Merger Sub accepts if before the purchase of the Shares for payment pursuant to the Offer;
, (ei) by Parent if there shall have been a breach the board of any representation, warranty, covenant or agreement on the part trustees of the Company contained 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 such that within five business days after the conditions set forth in clause public announcement of a Takeover Proposal (cincluding the filing of a Schedule 13D with the SEC) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (Bii) the 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 board of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors trustees of the Company or any committee thereof shall have resolved to reinstate take any of the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.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 contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding 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 approval of this Agreement and the Merger by the shareholders of the CompanyDOCP:
(a) by mutual written consent of Parent, Merger Sub DOCP and the CompanyBuyer;
(bi) by Parent Buyer upon a breach of any covenant or agreement on the Company part of DOCP set forth in this Agreement which has not been cured, or if any court representation or warranty of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or DOCP shall have become final 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 nonappealablethat 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 Parent Buyer or DOCP, if any permanent injunction or action by any Governmental Entity preventing the Company 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 Effective Time Merger shall not have occurred on or been consummated before the date which is nine months from the date hereof (the “Termination Date”); June 30, 1998, provided that the right to terminate this Agreement pursuant to this Section 8.1(cclause (d) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the whose failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, hereunder results in the failure of the Effective Time Merger to occur on be consummated by such date;
(e) by Buyer (i) if the DOCP Board or before any committee thereof shall withdraw, modify or change its recommendation so that it is not in favor of this Agreement, the Termination Date 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 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 approved or entered into an agreement respecting a Superior Proposal or recommended or resolved to recommend to its shareholders a Superior Proposal, or by DOCP in connection with the DOCP Board or any committee thereof approving or entering into an agreement respecting a Superior Proposal, provided that, in the case of any such termination by DOCP, simultaneously with such termination, DOCP complies with Section 8.5(b) of this Agreement and such action or failure prior thereto has complied with Section 6.2 of this Agreement and provided, further, that the party seeking to perform constitutes a terminate under this clause (f) is not then in material breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform . The right of any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right party hereto to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then shall remain operative and in material breach full force and effect regardless of any investigation made by or on behalf of its representationsany party hereto, warrantiesany person controlling any such party, covenants or agreements contained in any of their respective officers or directors, whether prior to or after the execution of this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Delaware Otsego Corp), Merger Agreement (Norfolk Southern Corp), Merger Agreement (Delaware Otsego Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after approval of this Agreement and the Merger by the shareholders stockholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Acquiror and the Company;
(b) by Parent Acquiror, upon a material breach of any covenant or agreement on the part of the Company set forth in this Agreement, or if any court representation or warranty of competent jurisdiction the Company hereunder shall be or other Governmental Entity located become untrue or having jurisdiction within inaccurate, in any case such that the United States shall have issued conditions set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied (a final order"Terminating Company Breach"); PROVIDED that, decree or ruling or taken any other final action restrainingif such Terminating Company Breach is curable by the Company through the exercise of its reasonable efforts, enjoining or otherwise prohibiting and the Merger and Company continues to exercise such orderreasonable efforts, decreeAcquiror may not terminate this Agreement under this Section 9.1(b) if such Terminating Company Breach has been cured prior to June 30, ruling or other action is or shall have become final and nonappealable1999;
(c) by the Company, upon material breach of any covenant or agreement on the part of the Acquiror Companies set forth in this Agreement, or if any representation or warranty of the Acquiror Companies shall be or become untrue or inaccurate, in any case such that the conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied (a "Terminating Acquiror Breach"); PROVIDED that, if such Terminating Acquiror Breach is curable by the Acquiror Companies through the exercise of their reasonable efforts, and the Acquiror Companies continue to exercise such reasonable efforts, the Company may not terminate this Agreement under this Section 9.1(c) if such Terminating Acquiror Breach has been cured prior to June 30, 1999;
(d) by either Parent Acquiror or the Company Company, if there shall be any Order of a Court or Governmental Authority having jurisdiction over a party hereto which is final and nonappealable permanently enjoining, restraining or prohibiting the consummation of the Merger, unless the party relying on such Order has not complied with its obligations under Section 7.5;
(e) by either Acquiror or the Company, if the Effective Time Merger shall not have occurred on or been consummated before the date which is nine months from the date hereof June 30, 1999 (the “"Termination Date”"); provided PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(e) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the a cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferDate;
(df) by either Acquiror or the Company, if this Agreement shall fail to receive the requisite vote for approval and adoption by the stockholders of the Company at the Company Stockholders' Meeting;
(g) by Acquiror (i) if Parent or Merger Sub shall have breached or failed the Board of Directors of the Company fails to perform any representation, warranty, covenant or agreement contained in recommend approval and adoption of this Agreement and the Merger by the stockholders of the Company or withdraws or modifies (without giving effect or publicly announces an intention to withdraw or modify) in any adverse manner its approval or recommendation of this Agreement or the Merger; (ii) if the Board of Directors of the Company makes any public recommendation with respect to any limitation on Acquisition Proposal other than a recommendation to reject such Acquisition Proposal; (iii) if the Company takes any representation or warranty indicated action prohibited by Section 7.1; (iv) if the words “Parent Material Adverse Effect”, “in all material respects”, “Company breaches in any material respect”, “material” respect the Option Agreement; or “materially”), and (iv) such breach has not been cured prior to if the earlier Board of (A) 30 days following notice Directors of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have resolves to take any of the actions specified above. The right of any party hereto to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then 9.1 will remain operative and in material breach full force and effect regardless of any investigation made by or on behalf of its representationsany party hereto, warrantiesany Person controlling any such party or any of their respective officers, covenants directors, representatives or agreements contained in agents, whether prior to or after the execution of this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 3 contracts
Sources: Merger Agreement (Barksdale James L), Merger Agreement (Netscape Communications Corp), Merger Agreement (Netscape Communications Corp)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(ai) by mutual written consent of Parent, Merger Sub the Lender and TechPrecision without liability of any party to the Companyother party;
(bii) by Parent either the Lender or TechPrecision, without liability of any party to the other party, if there shall be any law that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited or if any order enjoining TechPrecision or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within Lender from consummating the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger transactions contemplated hereby is entered and such order, decree, ruling order shall not have been vacated or other action is or shall have become final and nonappealablestayed within thirty (30) days of the entry thereof;
(ciii) by either Parent or the Company TechPrecision, without liability, if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach at any time there has hadbeen a misrepresentation, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants warranty or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained Lender in any of the representations, warranties or covenants under this Agreement such that the conditions set forth in clause which breach is not curable, or, if curable, is not cured within ten (c10) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following after written notice of such breach is given to the Company and Lender; or (B) the Termination Date; provided that Parent Stock Purchase Closing shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent occurred by December 31, 2021 or Merger Sub is then in material breach otherwise incapable of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offeroccurring by such date;
(fiv) by Parent in the event that an Adverse Recommendation Change Lender, without liability, if (A) at any time there has occurred;
(g) by Parent in the event that been a willful and material misrepresentation, breach of Section 6.4 warranty or breach of covenant on the part of TechPrecision in any of the representations, warranties or covenants under this Agreement which breach is not curable, or, if curable, is not cured within ten (10) days after written notice of such breach is given to TechPrecision, as applicable; or (B) the Stock Purchase Closing shall not have occurred by December 31, 2021 or is otherwise incapable of occurring by such date unless, in either case, such failure has occurredbeen substantially caused by the failure of Lender to perform or comply with any of the covenants, agreements or conditions hereof; or
(hv) by Parent TechPrecision if either of the following agreements are terminated or expire by their terms prior to the Company after the twentieth Business Day following an Adverse Recommendation Change if Closing: (xA) the Majority Tender Condition has not then been satisfied Stadco Stock Purchase Agreement; (B) that certain Amended and Restated Loan Purchase Agreement, dated as of April 23, 2021, among Acquisition Sub, Sunflower Bank, N.A., Stadco, Stadco Acquisition, LLC and Stadco Mexico, Inc., or (yC) Parent has not increased the Offer Price in an amount sufficient to permit the Board that certain Stock and Warrant Purchase Agreement, dated as of Directors of the Company to reinstate the Offer Recommendation August __, 2021, among Stadco New Acquisition, LLC, TechPrecision, and the Merger Recommendation in accordance with its fiduciary dutiesFive Crowns Credit Partners, LLC.
Appears in 3 contracts
Sources: Debt Conversion Agreement (Techprecision Corp), Debt Conversion Agreement (Techprecision Corp), Debt Conversion Agreement (Techprecision Corp)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Companyabandoned:
(a) by mutual written consent of Parent, Merger Sub the Company and the CompanyOmniLit;
(b) by Parent or written notice by either the Company or OmniLit if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Authority shall have issued a final orderenacted, decree issued, promulgated, enforced or ruling or taken entered any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have Governmental Order which has become final and nonappealablenon-appealable and has the effect of making consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger;
(c) by written notice by either Parent or the Company or OmniLit if the Effective Time OmniLit Stockholder Approval shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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 been obtained by reason of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in to obtain the case of Parent, Merger Sub) to perform required vote at the OmniLit Stockholders’ Meeting duly convened therefor or at any of its obligations under this Agreement required to be performed at adjournment 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 action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerpostponement thereof;
(d) by the Company or OmniLit by written notice to the other party if Parent the consummation of the transactions contemplated by this Agreement shall not have occurred on or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in before nine (9) months after the date of this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materiallyOutside Date”); provided, and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to under this Section 8.1(d10.1(d) if the Company is then in material breach of shall not be available to either party that has materially breached any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that under this Agreement may not and such material breach is the primary cause of or has resulted in the failure of the Merger to be terminated pursuant to this Section 8.1(d) after Parent consummated on or Merger Sub accepts Shares for payment pursuant to the Offerbefore such date;
(e) by Parent written notice to the Company from OmniLit if (i) there shall have been a is any breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement Agreement, such that the conditions set forth specified in clause (cSection 9.2(a), Section 9.2(b) or (dSection 9.2(d) of Exhibit A would not be satisfied andat the Closing (a “Terminating Company Breach”), in either except that, other than with respect to Section 9.2(d) which cannot be cured, if such caseTerminating Company Breach is curable by the Company through the exercise of its reasonable best efforts, such breach shall not have been cured prior then, for a period of up to the earlier of (A) 30 days following (or such shorter period of time that remains between the date OmniLit provides written notice of such breach to and the Agreement End Date) after receipt by the Company of notice from OmniLit of such breach, but only as long as the Company continues to use its reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, or (Bii) the Termination Date; provided that Parent shall Closing has not have occurred on or before nine (9) months after the right to terminate date of this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub (the “Agreement End Date”), unless OmniLit is then in material breach of any of its representations, warranties, covenants hereof so as to prevent the conditions specified in Section 9.2(a) or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e9.2(b) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerfrom being satisfied;
(f) by Parent in written notice to the event that an Adverse Recommendation Change 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 occurredbeen declared effective by the SEC and delivered or otherwise made available to stockholders;
(g) by Parent written notice to OmniLit from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of OmniLit or Merger Sub set forth in this Agreement, such that the event 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 a willful 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 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 of hereof so as to prevent the conditions specified in Section 6.4 has occurred9.2(a) or Section 9.2(b) from being satisfied; or
(h) by Parent or written notice to OmniLit from the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price a Modification in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesRecommendation.
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 Combination abandoned at any time prior to the Effective Time, notwithstanding 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 approval of the matters presented in connection with the Merger by the stockholders of the Company or the shareholders of the CompanyParent:
(a) by By mutual written consent of Parent, Merger Sub Parent and the Company, by action of their respective Boards of Directors;
(b) by Parent or By either the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof October 31, 2017, (the “Termination Date”); provided provided, however, that if all of the conditions to Closing shall have been satisfied or shall be then capable of being satisfied, other than the conditions set forth in Sections 8.1(d) and (e), the Termination Date may be extended by Parent or the Company, by written notice to the other party, to a date not later than January 31, 2018; provided, further, that if the Termination Date is not extended pursuant to the preceding proviso, and the Marketing Period has commenced fewer than eighteen (18) Business Days prior to the original Termination Date, the Termination Date shall be automatically extended to the Business Day following the final day of the Marketing Period; provided, further, that the right to extend or terminate this Agreement pursuant to under this Section 8.1(c9.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, or resulted in, of the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement;
(c) By either the Company or Parent if any Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; and provided further that the party hereto seeking to terminate this Agreement may not be terminated pursuant to this clause (cSection 9.1(c) after Parent shall have used its reasonable best efforts to remove such restraint or Merger Sub accepts Shares for payment prohibition as required by this Agreement; and provided, further, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any party hereto whose breach of any provision of this Agreement results in the Offerimposition of such order, decree or ruling or the failure of such order, decree or ruling to be resisted, resolved or lifted;
(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 shareholders of Parent required for the Parent Share Issuance shall not have been obtained by reason of the failure to obtain the Required Parent Vote at the Parent Shareholders Meeting (or any adjournment or postponement thereof);
(e) By Parent (i) prior to the Company Stockholders Meeting, if there shall have been a Company Change in Recommendation or the Board of Directors of the Company shall have approved or recommended a Company Acquisition Proposal (or the Board of Directors of the Company resolves to do any of the foregoing), whether or not permitted by Section 7.4, (ii) if the Company shall fail to call or hold the Company Stockholders Meeting in violation of Section 7.1(c); or (iii) if the Company shall have committed an Intentional Breach of any of its material obligations under Section 7.4(a) through (e);
(f) By the Company (i) prior to the Parent Shareholders Meeting, if there shall have been a Parent Change in Recommendation or the Board of Directors of Parent shall have approved or recommended a Parent Acquisition Proposal (or the Board of Directors of Parent resolves to do any of the foregoing), whether or not permitted by Section 7.4; (ii) if Parent shall fail to call or hold the Parent Shareholders Meeting in violation of Section 7.1(d); or (iii) if Parent shall have committed an Intentional Breach of any of its material obligations under Section 7.4(f) through (j);
(g) By the Company, pursuant to Section 7.4(c), subject to compliance with the applicable provisions of Section 7.4(c), Section 7.4(d) and Section 7.4(e);
(h) By Parent, pursuant to Section 7.4(h), subject to compliance with the applicable provisions of Section 7.4(h), Section 7.4(i) and Section 7.4(j);
(i) By the Company if Parent or Merger Sub there shall have breached or failed to perform 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 (without giving effect to any limitation on any representation such that the conditions set forth in Section 8.3(a) or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), Section 8.3(b) would not be satisfied and (i) such breach has is not reasonably capable of being cured or (ii) in the case of a breach of a covenant or agreement (other than an Intentional Breach of Parent’s obligations under Article I), if such breach is reasonably capable of being cured, such breach shall not have been cured prior to the earlier of (A) 30 40 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectDate; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(i) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(ej) by 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 clause (cSection 8.2(a) or (dSection 8.2(b) of Exhibit A would not be satisfied andand (i) such breach is not reasonably capable of being cured or (ii) in the case of a breach of a covenant or agreement, in either if such casebreach is reasonably capable of being cured, such breach shall not have been cured prior to the earlier of (A) 30 40 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(j) if Parent Parent, Merger Sub 1 or Merger Sub 2 is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Centurylink, Inc), Merger Agreement (Level 3 Communications Inc)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned abandoned:
(a) By mutual written consent of Parent and the Company duly authorized by the Board of Directors of Parent and the Company Board of Directors at any time prior to before the Effective Time, notwithstanding approval by the shareholders whether before or after shareholder adoption of this Agreement; or
(b) By either Parent or the Company:
(ai) by mutual written consent of Parent, Merger Sub and if at any time before the Company;
(b) by Parent or the Company if any Acceptance Time a court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final an order, decree or ruling or taken any other action, and such order, decree or ruling or other action shall have become final action and non-appealable, or there shall exist any statute, rule or regulation, in each case, permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling consummation of the Offer or other action is or shall have become final and nonappealablethe Merger;
(cii) by either Parent or the Company if the Effective Acceptance Time shall has not have occurred on or before the date which is nine months from the date hereof by December 15, 2010 (the “Termination Outside Date”); provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b)(ii) shall not be available to the any party seeking to terminate if any action of such party whose failure (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Subparty’s Affiliate) to perform fulfill any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the principal cause of, or resulted in, the failure of the Effective Acceptance Time to occur on have occurred by such date; provided, further, that if as of the Outside Date, all conditions set forth in Annex I have been satisfied or before waived (other than both of the Termination conditions set forth in clauses (i) and (ii) of Annex I), then either the Company or Parent may extend the Outside Date and such action to March 15, 2011;
(iii) if Company Shareholder Approval shall not have been obtained at the Special Meeting duly convened therefor or failure at any adjournment or postponement thereof; provided, however that the right to perform constitutes a breach terminate under this Section 8.1(b)(iii) shall not be available to Parent or Sub if the Shares owned by Parent, Sub or any of their respective Affiliates shall not have been voted in favor of adopting this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause or
(c) after By Parent or Merger Sub accepts Shares for payment pursuant if, prior to the Offer;
(d) Acceptance Time, there has been a breach by the Company if Parent of or Merger Sub shall have breached or failed to perform inaccuracy in, any representation, warranty, covenant or agreement contained of the Company set forth in this Agreement Agreement, which breach or inaccuracy has resulted in the conditions set forth in paragraphs (without giving effect to any limitation on any representation c) or warranty indicated (e) of Annex I not being satisfied (and such breach or inaccuracy has not been cured or such condition has not been satisfied within twenty (20) days after the receipt of notice thereof or such breach or inaccuracy is not reasonably capable of being cured or such condition is not reasonably capable of being satisfied within such period), provided that such occurrence or circumstance shall not have resulted from or been caused by the words “failure of Parent Material Adverse Effect”or Sub to perform, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, their covenants or agreements contained in this Agreement, or Parent and Sub have substantially breached any of their representations and warranties contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(dor
(d) after Parent or Merger Sub accepts Shares for payment pursuant By the Company if (i) prior to the Offer;
(e) by Parent if Acceptance Time, there shall have has been a breach by Parent or Sub of any representation, warranty, covenant or other agreement on contained herein, or if a representation or warranty of Parent or Sub is no longer true and correct, which situation in any case (x) would result in any of the part representations and warranties of Parent and Sub set forth in this Agreement not being true and correct (without giving effect to any limitation as to “materiality” or “material adverse effect” or similar terms set forth therein) except where the failure to be so true and correct does not, and would not reasonably be expected to, prevent or materially delay or hinder Parent or Sub from performing in all material respects its obligations and covenants required to be performed by it under this Agreement and (y) has not been cured within twenty (20) days following notice by the Company, provided that such occurrence or circumstance shall not have resulted from or been caused by the failure of the Company or any Company Subsidiary to perform, in any material respect, any of their covenants or agreements contained in this Agreement such Agreement, or the Company or any Company Subsidiary have substantially breached any of their representations and warranties contained in this Agreement; or (ii) due to an occurrence or circumstance that the conditions has resulted in a failure to satisfy any condition set forth in clause Annex I hereto, Sub shall have allowed the Offer to terminate, without having accepted any Shares for payment thereunder, unless such occurrence or circumstance shall have been caused by or resulted from the failure of the Company or any Company Subsidiary to perform, in any material respect, any of their covenants or agreements contained in this Agreement, or the material breach by the Company or any Company Subsidiary of any of their representations or warranties contained in this Agreement; or
(ce) By Parent, at any time prior to the Acceptance Time, if (i) (A) the Company Board of Directors shall have (1) effected an Adverse Recommendation Change, (2) recommended to the Company’s shareholders an Acquisition Proposal, or publicly announced its intention to enter into an Alternative Acquisition Agreement, (3) failed to publicly reaffirm the Company Board Recommendation within four (4) business days of Parent’s request in writing that the Company Board Recommendation be publicly reaffirmed (provided that Parent is only allowed to make two (2) such reaffirmation requests prior to the Acceptance Time), or (d4) failed to recommend against, or taken a neutral position with respect to, a tender or exchange offer related to an Acquisition Proposal in any position taken pursuant to Rules 14d-9 and 14e-2 under the Exchange Act; or (ii) after receiving an Acquisition Proposal, the Company shall have violated or breached in any material respect any of Exhibit A would not its obligations under Section 5.2 with respect to such Acquisition Proposal; or
(f) At any time prior to the Acceptance Time, by the Company, if the Company has received a Superior Proposal, which, after giving effect to all of the adjustments that may be satisfied andoffered by Parent pursuant to Section 5.2, the Company Board of Directors determines in either such casegood faith (after consultation with its financial advisors) continues to constitute a Superior Proposal, such breach provided the Company shall not have been cured violated or breached in any material respect any of its obligations under Section 5.2; or
(g) By the Company, prior to commencement of the earlier of Offer, if Sub has not commenced the Offer within ten (A10) 30 business days following notice of such breach to the date hereof; provided, however, that the Company and (B) the Termination Date; provided that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(e8.1(g) if Parent or Merger Sub is then in material such failure to commence the Offer has resulted from the breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may by the Company or if the Company has not be terminated pursuant provided Sub with a Schedule 14D-9 the Company is prepared to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to file, without further revisions, upon commencement of the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or By Parent, at any time prior to the Acceptance Time, if there shall have occurred a Company after the twentieth Business Day following an Material Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesEffect.
Appears in 3 contracts
Sources: Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC), Merger Agreement (Somanetics Corp)
Termination. This Agreement may may, by notice given before or at the Closing Time, be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Companyby:
(a) by mutual written consent agreement of Parent, Merger Sub Valdy and the CompanyINX;
(b) by Parent either Valdy or INX upon notice to the Company other in the event that any condition set forth in this Agreement for their benefit is not satisfied to the satisfaction of such Party prior to the Closing Date or becomes incapable of being satisfied and such Party does not waive such condition;
(c) either Valdy or INX, if there shall be any Law that makes consummation of the Securities Exchange illegal or otherwise prohibited, any applicable regulatory authority having notified in writing either Valdy or INX that it will not permit the Securities Exchange to proceed, or if any court judgment, injunction, order or decree of a competent jurisdiction or other Governmental Entity located enjoining Valdy or having jurisdiction within INX from consummating the United States Securities Exchange shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger be entered and such orderjudgment, decreeinjunction, ruling order or other action is or decree shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offernon-appealable;
(d) by either Valdy or INX upon notice to the Company if Parent other in the event that the Securities Exchange is not completed before the date that is 300 days following March 31, 2021, or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained such other date as Valdy and INX may agree in this Agreement writing;
(without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and e) Valdy if:
(i) such breach INX has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of breached any of its representations, warranties, warranties or covenants or agreements contained in this Agreement; provided further that this Agreement may in any material respect and such breach is not curable or if curable, is not cured within five Business Days after notice thereof has been received by the Party alleged to be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerin breach;
(eii) by Parent if there shall have been occur after the date hereof, any change, effect, event, circumstance or fact that constitutes a breach Material Adverse Effect in respect of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause INX;
(cf) or INX if:
(di) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the 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 Valdy has breached any of its representations, warranties, warranties or covenants or agreements contained in this Agreement; provided that this Agreement may in any material respect and such breach is not curable or if curable, is not cured within five Business Days after notice thereof has been received by the Party alleged to be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurredbreach; or
(hii) by Parent or the Company there shall occur after the twentieth Business Day following an date hereof, any change, effect, event, circumstance or fact that constitutes a Material Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price Effect in an amount sufficient to permit the Board respect of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesValdy.
Appears in 3 contracts
Sources: Securities Exchange Agreement (INX LTD), Securities Exchange Agreement, Securities Exchange Agreement
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by mutual written consent of Parenteither Oyster or Pearl if, Merger Sub between the date hereof and the CompanyClosing: (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 result 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 Parent any of Discovery, Oyster or Pearl if the Company Closing shall not have occurred by March 7, 2009 (the “Termination Date”); provided, however, that the right to terminate this Agreement under this Section 13.01(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to the 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 Discovery Change of Control Proposal or (ii) the occurrence of a Discovery Change of Control Triggering Event;
(c) by any court of competent jurisdiction Discovery, Oyster or other Pearl in the event that any Governmental Entity located or having jurisdiction within the United States Authority shall have issued a final an order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting or rendering illegal the Merger transactions contemplated by this Agreement and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by Oyster or Pearl upon the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier occurrence of (A) 30 days following notice a Discovery Change of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferControl Triggering Event;
(e) by Parent Oyster or Pearl if there shall have been a breach of any representation, warranty, covenant or agreement on the part representatives of the Company contained in U.S. Department of the Treasury and/or any other lead agency designated by the CFIUS for this Agreement such 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 conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior CFIUS will refer the transaction to the earlier President of (A) 30 days following notice of such breach to the Company and (B) United States for decision, or that the Termination DateCFIUS Clearance would be conditioned upon Mitigation Agreements that would be inconsistent with Section 8.07(d); provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful mutual written consent of Discovery, Oyster and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesPearl.
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 contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after approval of this Agreement by the shareholders stockholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Parent and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company Company:
(i) if (x) as a result of the Effective Time failure of any of the Offer Conditions the Offer shall have terminated or expired in accordance with its terms without Purchaser's having accepted for payment any Shares pursuant to the Offer or (y) Purchaser shall not have occurred on or before accepted for payment any Shares pursuant to the date which is nine months from the date hereof (the “Termination Date”)Offer prior to August 31, 1999; provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c8.01(b)(i) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the whose failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at results in the failure of any such condition or prior to if the Effective Time has been failure of such condition results from facts or circumstances that constitute a breach of any representation or warranty under this Agreement by such party; or
(ii) if any governmental entity shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the cause acceptance for payment of, or resulted inpayment for, Shares pursuant to the failure of the Effective Time to occur on or before the Termination Date Offer and such order, decree or ruling or other action or failure shall have become final and nonappealable; provided, that the party seeking to perform constitutes a breach of this Agreement; and provided further that terminate this Agreement may not be terminated pursuant to this clause (ii) shall have used all commercially reasonable efforts to remove such order, decree, ruling, judgment or injunction, it being understood that in no event shall Parent, Purchaser, the Company or the Surviving Corporation be required to hold separate or divest any of their respective assets or agree to any restrictions in their businesses as currently or proposed to be conducted.
(c) after by Parent or Merger Sub accepts Purchaser prior to the purchase of Shares for payment pursuant to the Offer;
(d) Offer in the event of a breach by the Company if Parent or Merger Sub shall have breached or failed to perform of any representation, warranty, covenant or other agreement contained in this Agreement (without giving effect to any limitation on any representation unless such breach was directly caused by an act or warranty indicated by the words “omission of Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and Purchaser) which (i) such breach would give rise to the failure of a condition set forth in paragraph (d) of Annex A to this Agreement and (ii) cannot be or has not been cured within 20 days after the giving of written notice thereof to the Company by Parent or Purchaser;
(d) by Parent or Purchaser prior to the earlier purchase of Shares pursuant to the Offer if either Parent or Purchaser is entitled to terminate the Offer as a result of the occurrence of any event set forth in paragraph (Af) 30 days following notice of Annex A to this Agreement;
(e) by the Company if the Board determines in good faith that a Takeover Proposal constitutes a Superior Proposal and the Board determines in good faith, after receiving the advice of independent legal counsel, that the failure to approve such Takeover Proposal and to terminate this Agreement would constitute a breach to Parent and (B) of the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectBoard's fiduciary duties under applicable law; provided that the Company has complied with all provisions of Section 6.05, including the notice provisions therein, and that it has complied with the requirements of Section 8.03 relating to the payment (including the timing of any payment) of the Expenses and the Termination Fee to the extent required by Section 8.03; and provided, further, that the Company may not terminate this Agreement pursuant to this Section 8.01(e) unless and until 72 hours have elapsed following delivery to Parent of a written notice of such determination by the Board.
(f) by the Company prior to the purchase of Shares pursuant to the Offer if (i) any of the representations or warranties of Parent or Purchaser set forth in this Agreement that are qualified as to materiality shall not be true and correct in any respect or any such representations or warranties that are not so qualified shall not be true and correct in any material respect, or (ii) Parent or Purchaser shall have failed to perform in any material respect any material obligation or to comply in any material respect with any material agreement or covenant of Parent or Purchaser to be performed or complied with by it under this Agreement and such untruth, incorrectness or failure cannot be or has not been cured within 20 days after the Company's giving of written notice to Parent or Purchaser, as applicable; or
(g) by the Company, if the Offer has not been timely commenced in accordance with Section 1.01. The right of any party hereto to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then 8.01 shall remain operative and in material breach full force and effect regardless of any investigation made by or on behalf of its representationsany party hereto, warrantiesany person controlling any such party or any of their respective officers or directors, covenants whether prior to or agreements contained in after the execution of this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 3 contracts
Sources: Merger Agreement (Shopko Stores Inc), Merger Agreement (Citigroup Inc), Merger Agreement (Pamida Holdings Corp/De/)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval Time by notice from the shareholders of terminating party to the Companyother party or parties:
(a) by the mutual written consent of Parent, Merger Sub the Company and the CompanyParent;
(b) by Parent either the Company or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof June 30, 2011 (the “Termination Date”); provided that if, as of the Termination Date, all conditions to this Agreement shall have been satisfied or waived (other than those that are satisfied by action taken at the Closing), other than the conditions set forth in Section 7.1(b) or Section 7.1(c), either the Company or the Parent may, by written notice to other party prior to the Termination Date, extend the Termination Date to December 31, 2011 and no party herein shall then have the right to terminate this Agreement pursuant as of June 30, 2011; provided that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any party who (i) shall not have used Commercially Reasonable Efforts to remove any Restraint as provided in Section 6.7, or (ii) shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement in any manner that shall have proximately caused the Effective Time not to occur on or before the Termination Date;
(c) by either the Company or the Parent if any Restraint prohibiting the Merger shall have become final and non-appealable; provided that the right to terminate this Agreement under this Section 8.1(c) shall not be available to the any party seeking who shall not have used Commercially Reasonable Efforts to terminate if any action of remove such party (or, Restraint as provided in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferSection 6.7;
(d) by either the Parent or the Company if the Shareholder Meeting (including any adjournments thereof) at which this Agreement shall have been actually voted upon shall have concluded and the Company Shareholder Approval shall not have been obtained;
(e) by the Company if (A) the Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of respect any of its representations, warranties, covenants or other agreements contained in this Agreement; provided further that , which breach or failure to perform (i) would result in a failure of a condition set forth in Section 7.1 or Section 7.2(a), and (ii) is not cured within 20 Business Days after the Company has given the Parent written notice of such breach and its intention to terminate this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date8.1(e); provided that Parent no such cure period shall be available or applicable to any such breach that by its nature cannot have be cured; provided, further, that the right to terminate this Agreement pursuant to this Section 8.1(e) shall not be available to the Company if Parent or Merger Sub the Company is then at that time in material breach of this Agreement, or (B) the conditions to closing set forth in Section 7.1 and Section 7.3(a) have been satisfied and the Parent (or Merger Sub) has failed to consummate the Merger within twenty (20) Business Days (or such longer period specified by the Company in a notice to the Parent scheduling the Closing) after the later of (i) the first day that the conditions set forth in Section 7.1 and Section 7.3(a) have been satisfied, and (ii) the date on which the Company provides such notice to the Parent irrevocably undertaking to close the Merger in accordance with this Agreement on the date specified in such notice;
(f) by the Parent 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; provided that , which breach or failure to perform (i) would result in a failure of a condition set forth in Section 7.1 or Section 7.3(a), and (ii) is not cured within 20 Business Days after the Parent has given the Company written notice of such breach and its intention to terminate this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent 8.1(f); provided that no such cure period shall be available or Merger Sub accepts Shares for payment applicable to any such breach that by its nature cannot be cured; provided, further, that the right to terminate this Agreement pursuant to this Section 8.1(f) shall not be available to the Offer;
(f) by Parent if the Parent is at that time in the event that an Adverse Recommendation Change has occurredmaterial breach of this Agreement;
(g) by Parent the Company if, the Board of Directors of the Company (or any committee thereof) has concluded in good faith, after consultation with the event Company’s outside legal and financial advisors, that a willful Company Alternative Proposal is a Company Superior Proposal and material breach of has determined to enter into a definitive agreement with respect to such Company Alternative Proposal following a Company Change in Recommendation, provided that, the Company shall not have materially breached its obligations in Section 6.4 has occurredso as to result in material harm to Parent or deprive Parent of a material benefit set forth in Section 6.4; or
(h) by the Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change (i) if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company (or any committee thereof) shall have (A) made a Company Change in Recommendation, (B) determined that a Company Alternative Proposal constitutes a Company Superior Proposal or has determined to reinstate enter into a definitive agreement with respect to such Company Alternative Proposal, (C) failed to publicly affirm the Offer Company Recommendation and or recommend against any Company Alternative Proposal within ten Business Days of Parent’s request to do so, or (D) resolved or otherwise determined to take, or announced an intention to take, any of the Merger Recommendation foregoing, or (ii) if the Company shall have materially breached its obligations in accordance with its fiduciary dutiesSection 6.4 so as to result in material harm to Parent or deprive Parent of a material benefit set forth in Section 6.4.
Appears in 2 contracts
Sources: Merger Agreement (Shamir Optica Holdings A.C.S. Ltd.), Merger Agreement (Essilor International /Fi)
Termination. This (a) The LESSEE shall be responsible for abiding by the terms of this Agreement including all of the Fees due provided herein for the full term specified in this Agreement. The LESSEE may be terminated and terminate this Agreement at the Merger contemplated hereby may be abandoned at any time 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 Effective Timeexpiration of such term, notwithstanding approval by the shareholders of its intention to forego renewal of the Company:
(a) by mutual written consent Agreement and shall return to OLI any security devices, hardware or software that enabled access to or usage of Parent, Merger Sub and the Company;The System under this Agreement.
(b) In the event the LESSEE wishes to terminate this Agreement prior to the end of 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 Parent 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, the LESSEE returns to OLI any security devices, hardware or the Company if any court software that enabled access to or usage of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;The System under this Agreement.
(c) by either Parent or the Company if the Effective Time Each party hereto shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant upon written notice to this Section 8.1(d) the other party if the Company is then in other party materially breaches an obligation under this Agreement and, after receiving written notice from the non-breaching party identifying such material breach in reasonable detail, fails to cure such material breach within thirty (30) days from the date of such notice (or within fifteen (15) days’ notice in the event such breach is solely based upon the breaching party’s failure to pay any amounts due hereunder).
(d) Upon the termination of its representations, warranties, covenants or agreements contained in this Agreement, the Lease authorizing the LESSEE’s use of The System shall automatically terminate, and all rights and obligations of the parties under this Agreement and arising after the date of such termination shall cease; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions license set forth in clause (cSection 8(c) or (d) shall remain in effect with respect to all use of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured The System by the LESSEE’s and its Authorized Users prior to such termination. Notwithstanding the earlier foregoing, the following provisions shall survive the termination of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e: Sections 3(b), 3(c), 7, 8, 10, 11, 12, 14, 16(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties21.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Parent and the CompanyCompany at any time prior to the Offer Acceptance Time;
(b) by either Parent or the Company Company, at any time prior to the Offer Acceptance Time, if any court the Closing shall not have occurred on or prior to midnight, Eastern Time, on January 19, 2017 (the “End Date”); provided, however, that in the case of competent jurisdiction this Section 8.1(b), (x) if on the End Date all of the conditions set forth in Annex I, other than clause (e) or other Governmental Entity located or having jurisdiction within (g) (solely in respect of the United States HSR Act) set forth in Annex I shall have issued been satisfied or waived by Parent or Purchaser, to the extent waivable by Parent or Purchaser (other than conditions that by their nature are to be satisfied at the Offer Acceptance Time, each of which is then capable of being satisfied), then the End Date shall automatically be extended by a final order, decree period of ninety (90) days (and all references to the End Date herein and in Annex I shall be as so extended); and (y) the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to any Party whose breach of this Agreement has caused or ruling or taken any other final action restraining, enjoining or otherwise prohibiting resulted in the Merger and Offer not being consummated by such order, decree, ruling or other action is or shall have become final and nonappealabledate;
(c) by either Parent or the Company if a Governmental Body of competent jurisdiction shall have issued an order, injunction, decree or ruling, or shall have taken any other action, having the Effective Time effect of permanently restraining, enjoining or otherwise prohibiting the acceptance for payment of Shares pursuant to the Offer or the Merger or making the consummation of the Offer or the Merger illegal, which order, decree, ruling or other action shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)be final and nonappealable; provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a Party whose material breach of this Agreement; Agreement has caused or resulted in such final and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent nonappealable order, injunction, decree, ruling or Merger Sub accepts Shares for payment pursuant to the Offerother action;
(d) by Parent at any time prior to the Offer Acceptance Time, if: (i) the Board of Directors shall have failed to include the Company Board Recommendation in the Schedule 14D-9 when mailed, or shall have effected a Company Adverse Change Recommendation; (ii) in the case of a tender offer or exchange offer subject to Regulation 14D under the Exchange Act, other than the Offer, the Board of Directors fails to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, rejection of such tender offer or exchange offer as promptly as practicable (but in any event within ten (10) business days) of the commencement of such tender offer or exchange offer; or (iii) the Board of Directors fails to publicly reaffirm the Company Board Recommendation as promptly as practicable (but in any event within ten (10) business days) after Parent so requests in writing;
(e) by the Company, at any time prior to the Offer Acceptance Time, if the Board of Directors has made a Company Adverse Change Recommendation in order to accept a Superior Offer (in compliance with the terms of this Agreement, including Section 6.1(b)) and concurrently enter into a binding written definitive acquisition agreement providing for the consummation of a transaction which the Board of Directors shall have determined, in good faith and pursuant to Section 6.1(b), constitutes a Superior Offer (a “Specified Agreement”); provided that (i) neither the Company nor any of its Representatives shall have violated Section 5.3 in any material respect in relation to such Superior Offer, (ii) the Company and the Board of Directors shall have complied with Section 6.1(b) and (iii) the Company shall have paid the Termination Fee immediately before and as a condition to such termination;
(f) by Parent at any time prior to the Offer Acceptance Time, if a breach of any representation or warranty contained in this Agreement or failure to perform any covenant or obligation in this Agreement on the part of the Company shall have occurred such that a condition set forth in clause (b) or (c) of Annex I would not be satisfied and cannot be cured by the Company by the End Date, or if capable of being cured in such time period, shall not have been cured within thirty (30) days of the date Parent gives the Company written notice of such breach or failure to perform; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(f) if either Parent or Merger Sub shall have breached or failed to perform Purchaser is then in material breach of any representation, warranty, covenant or agreement obligation hereunder;
(g) by the Company at any time prior to the Offer Acceptance Time, if a breach of any representation or warranty contained in this Agreement (without giving effect or failure to perform any limitation covenant or obligation in this Agreement on any representation the part of Parent or warranty indicated by the words “Parent Material Adverse Effect”Purchaser shall have occurred, “in all material respects”each case, “in any material respect”, “material” or “materially”), and (i) if such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or failure would reasonably be expected to haveprevent Parent or Purchaser from consummating the Transactions and such breach or failure cannot be cured by Parent or Purchaser, individually as applicable, by the End Date, or if capable of being cured in such time period, shall not have been cured within thirty (30) days of the aggregatedate the Company gives Parent written notice of such breach or failure to perform; provided, a Parent Material Adverse Effect; provided however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(g) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on obligation hereunder;
(h) by Parent at any time prior to the part Offer Acceptance Time in the event of a material breach of Section 5.3; or
(i) by either Parent or the Company if the Offer shall have expired or terminated in a circumstance in which all of the Company contained in this Agreement such that Offer Conditions are satisfied or have been waived (other than the conditions Minimum Condition) following the end of the aggregate thirty (30)-business day period set forth in clause (c) or (d3) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier penultimate sentence of (A) 30 days following notice of such breach to the Company and (B) the Termination DateSection 1.1(c); provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e8.1(i) if Parent or Merger Sub is then in material shall not be available to any Party whose breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent has caused or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent resulted in the event that an Adverse Recommendation Change has occurred;
(g) by Parent Offer having expired or been terminated in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiessuch manner.
Appears in 2 contracts
Sources: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby by this Agreement may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Companyas follows:
(a) by mutual written consent of Parent, Merger Sub and either Pubco or the Company, if the Closing shall not have occurred by December 22, 2021 (the “Termination Date”) by giving written notice of such termination to the other party; provided, further, that the right to terminate this Agreement under this Section 9.01(a) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement shall have been the primary cause of the failure of the Closing to occur on or prior to such date;
(b) by Parent either Pubco or the Company if Company, in the event that any court Governmental Authority of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting Governmental Order that permanently enjoins the consummation of the Merger and such order, decree, ruling or other action is or Governmental Order shall have become final and nonappealablenon-appealable; provided, however, that the right to terminate this Agreement under this Section 9.01(b) shall not be available to any party whose action or failure to fulfill any obligation under this Agreement has been the primary cause of the issuance of such Governmental Order;
(c) by either Parent Pubco or the Company if the Effective Time Pubco Stockholder Approval shall not have occurred on or before been obtained at the date which is nine months from the date hereof Special Meeting (the “Termination Date”following any adjournments and postponements thereof required hereunder); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company (at any time prior to the time the Pubco Stockholder Approval is obtained) if Parent or Merger Sub a Pubco Triggering Event shall have breached or failed to perform occurred;
(e) by the Company, if there has been a breach of any representation, warranty, covenant or other agreement contained made by Pubco or its Subsidiaries, or any such representation and warranty shall have become untrue or inaccurate after the date of this Agreement, in this Agreement each case which breach, untruth or inaccuracy (without giving effect i) would reasonably be expected to any limitation on any representation or warranty indicated by result in the words conditions set forth in Section 8.03(a) not being satisfied as of the Closing Date (a “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materiallyTerminating Pubco Breach”), and (iii) shall not have been cured within thirty (30) days after written notice from the Company of such breach has Terminating Pubco Breach is received by the Company (such notice to describe such Terminating Pubco Breach in reasonable detail), or which breach, untruth or inaccuracy, by its nature, cannot been be cured prior to the earlier Termination Date; provided, that neither the Company nor Merger Sub is then in material breach of any of their representations, warranties, covenants or other obligations under this Agreement, which breach would give rise to a failure of a condition set forth in Section 8.02(a);
(Af) 30 days following notice by Pubco, if there has been a breach of such breach to Parent and (B) any representation, warranty, covenant or other agreement made by the Termination Date and (ii) such breach has hadCompany or its Subsidiaries in this Agreement, or any such representation and warranty shall have become untrue or inaccurate after the date of this Agreement, in each case which breach, untruth or inaccuracy (i) would reasonably be expected to have, individually or result in the aggregateconditions set forth in Section 8.02(a) not being satisfied as of the Closing Date (a “Terminating Company Breach”), a Parent Material Adverse Effect; provided that the Company and (ii) shall not have the right to terminate this Agreement pursuant to this Section 8.1(dbeen cured within thirty (30) if days after written notice from Pubco of such Terminating Company Breach is received by the Company (such notice to describe such Terminating Company Breach in reasonable detail), or which breach, untruth or inaccuracy, by its nature, cannot be cured prior to the Termination Date; provided, that Pubco is then not in material breach of any of its representations, warranties, covenants or agreements contained in other obligations under this Agreement; provided further that this Agreement may not be terminated pursuant , which breach would give rise to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach failure of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions a condition set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred8.03(a);
(g) by Parent in Pubco (at any time prior to the event time the Pubco Stockholder Approval is obtained), if (i) Pubco has received an Acquisition Proposal that the Pubco Board has determined to be a willful and Superior Offer, (ii) such Superior Offer did not result from a material breach by Pubco of Section 6.4 has occurred7.02(a), (iii) Pubco concurrently terminates this Agreement and enters into a definitive agreement with respect to such Superior Offer and (iv) within two (2) Business Days of such termination, Pubco pays to the Company the amount contemplated by Section 9.03; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors mutual written consent of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesparties hereto.
Appears in 2 contracts
Sources: Merger Agreement (Greenidge Generation Holdings Inc.), Merger Agreement (Support.com, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after approval by of the shareholders of the CompanyCompany described herein:
(a) by mutual written consent of Parent, Merger Sub Parent and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Authority shall have issued a final an order, decree or ruling or taken any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the Merger completion of the transactions contemplated by this Agreement and such order, decree, decree or ruling or other action is or shall have become final and nonappealable;
(c) by Parent if:
(i) the 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, that such representation or warranty 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); provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(c) shall not be available to Parent if Purchaser or any other affiliate of 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 of Directors of the Company or any committee thereof shall have withdrawn or modified in a manner adverse to Parent or Purchaser its approval or recommendation of the Offer or any of the Company Proposals; (ii) the Board of 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 Effective Time Offer shall not have occurred been completed on or before the date which is nine months from the date hereof (the “Termination Date”); August 31, 2001, provided that the right to terminate this Agreement pursuant to this Section 8.1(c7.1(f) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the whose failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, results in the failure of the Effective Time Offer to occur on or before the Termination Date and be completed by such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offertime;
(dg) by the Company Company, if Parent or Merger Sub Purchaser shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of respect any of its representations, warranties, covenants or other agreements contained in this Agreement; provided further that this Agreement may , which breach or failure to perform is incapable of being cured or has not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior within 5 days after the giving of written notice thereof to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurredParent; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if in order to accept a Superior Proposal by a third party, provided (xi) the Majority Tender Condition Company has not then been satisfied 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 (yiv) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company shall have complied in all respects with the provisions of Section 4.9. The party desiring to reinstate terminate this Agreement pursuant to the Offer Recommendation and preceding paragraphs shall give written notice of such termination to the Merger Recommendation other party in accordance with its fiduciary dutiesSection 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 prior to the Effective Time, notwithstanding approval by action taken or authorized by the shareholders Board of Directors of the Companyterminating party or parties, whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company or the stockholders of BIMI:
(a) by By mutual written consent of Parent, Merger Sub BIMI and the Company, by action of their respective Boards of Directors;
(b) by Parent or By either the Company or BIMI if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before been consummated prior to May 31, 2013 (such date, the date which is nine months from the date hereof (the “Termination ''Outside Date”''); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time (including without limitation such party's obligations set forth in Section 5.7) has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause Outside Date;
(c) after Parent By either the Company or Merger Sub accepts Shares for payment pursuant BIMI if any governmental entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable (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 Offerprovisions 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 if Parent or Merger Sub shall have breached or failed to perform of any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and which (i) such breach has would result in a failure of a condition set forth in Section 6.3(a) or 6.3(b) and (ii) cannot been be cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectOutside Date; provided that BIMI shall have given the Company shall not have the right written notice, delivered at least twenty (20) days prior to such termination, stating BIMI's intention to terminate this Agreement pursuant to this Section 8.1(d7.1(d) if and the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares basis for payment pursuant to the Offersuch termination;
(e) by Parent 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 shall have has been a breach by BIMI of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions which (i) would result in a failure of a condition set forth in clause (cSection 6.2(a) or 6.2(b) and (dii) of Exhibit A would cannot be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Outside Date; provided that Parent the Company shall not have given BIMI written notice, delivered at least twenty (20) days prior to such termination, stating the right Company's intention to terminate this Agreement pursuant to this Section 8.1(e7.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares and the basis for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurredsuch termination; or
(h) by Parent By written notice of either BIMI or the Company after the twentieth Business Day following an Adverse Recommendation Change if (xi) the Majority Tender Condition has Company Stockholder Approval shall not then have been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of obtained at the Company to reinstate Stockholders' Meeting duly convened therefor (or at any adjournment or postponement thereof), or (ii) the Offer Recommendation and BIMI Stockholder Approval shall not have been obtained at the Merger Recommendation in accordance with its fiduciary dutiesBIMI Stockholders' Meeting duly convened therefor (or at any adjournment or postponement thereof).
Appears in 2 contracts
Sources: Merger Agreement (Naturewell Inc), Merger Agreement (Naturewell Inc)
Termination. (a) This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(ai) by mutual written consent of the Buyers and Seller Parent, Merger Sub and the Company;
(bii) by either Seller Parent or Buyers, by written notice, if:
(A) the Company Closing shall not have occurred by the date and time set forth in Section 7(a)(x)(D) of the Restructuring Support Agreement to the extent the Restructuring Support Agreement remains in full force and effect at the time this termination event is triggered (as such date may be extended pursuant to this Section 8.1(a)(ii)(A) or Section 6.3, the “Outside Date”); provided, however, that to the extent the Closing is not achieved by the Outside Date (after giving effect to any extensions thereof) due solely to any outstanding regulatory or third-party approval or consent required under Section 7.1, the Outside Date shall be automatically extended by forty-five (45) additional calendar days; provided, further that the Seller Parent shall have the right to extend the Outside Date as provided for under Section 6.3; provided, further, that the right to terminate this Agreement under this Section 8.1(a)(ii)(A) shall not be available to any Party if the failure of the transactions contemplated by this Agreement to occur on or before the Outside Date was primarily caused by a Party’s or their Affiliate’s failure to perform any court of competent jurisdiction covenant or other obligation under this Agreement;
(B) any Governmental Entity located or having jurisdiction within the United States Authority, shall have issued a final an order, judgment, decree or ruling or taken any other final action restraining, enjoining enjoining, rendering illegal, or otherwise prohibiting the Merger transactions contemplated by this Agreement and such order, judgment, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right to terminate this Agreement pursuant to Party so requesting termination shall have complied with Section 5.5, and provided, further, that no termination may be made by a Party under this Section 8.1(c8.1(a)(ii)(B) shall not be available to if the party seeking to terminate if any action issuance of such party Order was primarily caused by the breach by such Party (orincluding, with respect to Sellers, any of the Endo Companies) with respect to, or action or inaction of such Party (including, with respect to Sellers, any of the Endo Companies) in violation of, any obligation or condition of this Agreement;
(C) (i) the Bankruptcy Court enters an Order granting relief against any Consenting First Lien Creditor (or the First Lien Collateral Trustee or any Secured Debt Representative, each in its representative capacity on behalf of the applicable holders of Prepetition First Lien Indebtedness) with respect to (A) a motion, application, pleading, or proceeding challenging the amount, validity, enforceability, extent, perfection, or priority of, or seeking avoidance or subordination of, any Claims held by any Consenting First Lien Creditor against any Debtor or any liens or security interests securing such Claims, provided, that, such Order reduces the amount of the Claims, liens, or security interests held by the Consenting First Lien Creditors by more than $5 million, or (B) a motion, application, pleading or proceeding asserting any purported Claims or causes of action against any of the Consenting First Lien Creditors (or the First Lien Collateral Trustee or any Secured Debt Representative, each in its representative capacity on behalf of the applicable holders of Prepetition First Lien Indebtedness), in each case, or otherwise issues a ruling or enters an Order, which renders the case obligations of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations Buyers under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure incapable of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreementperformance; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that Required Consenting Global First Lien Creditors have terminated the Company shall not have the right to terminate this Restructuring Support Agreement pursuant to this Section 8.1(d7(a)(viii) if the Company is then in material breach of thereof;
(D) (i) any of its representationsthe Endo Companies enters into a definitive agreement for an Alternative Transaction or consummates any Alternative Transaction, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated (ii) the Bankruptcy Court enters an Order approving an Alternative Transaction or denying confirmation of the Chapter 11 Plan as it relates to authorizing the Endo Companies to consummate the transactions contemplated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferAgreement;
(eE) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement at 11:59 p.m. on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event date that an Adverse Recommendation Change has occurred;
(g) Order is entered by Parent in the event that Bankruptcy Court or a willful and material breach court of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if competent jurisdiction either: (x) converting any of the Majority Tender Condition has not then been satisfied and Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors involuntarily dismissing any of the Company to reinstate Bankruptcy Cases, (z) appointing of a trustee, liquidator or analogous officeholder or examiner with expanded powers (as such term is used in the Offer Recommendation and Bankruptcy Code) in one or more of the Merger Recommendation in accordance with its fiduciary duties.Bankruptcy Cases,
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Endo, Inc.), Purchase and Sale Agreement (Endo International PLC)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeClosing Date, notwithstanding approval by whether before or after the shareholders of the CompanyCompany Shareholders' Approval:
(a) by mutual written consent of the Boards of Directors of the Company and Parent, Merger Sub and the Company;
(b) by Parent or any party hereto, by written notice to the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderparties, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date day which is nine twelve months from the date hereof of this Agreement (the “"Initial Termination Date”"); provided provided, however, that the right to terminate this the Agreement pursuant to under this Section 8.1(c8.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date; and provided, further, that if on the Initial Termination Date and such action the conditions to the Closing set forth in Section 7.1(c), shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or failure shall be capable of being fulfilled, then the Initial Termination Date shall be extended to perform constitutes a breach the eighteen month anniversary of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause the date hereof;
(c) after Parent or Merger Sub accepts Shares for payment pursuant by any party hereto, by written notice to the Offerother parties, if the Company Shareholders' Approval shall not have been obtained at a duly held Company Special Meeting, including any adjournments thereof;
(d) by any party hereto, if any state or federal law, order, rule or regulation is adopted or issued, which has the Company effect, as supported by the written opinion of outside counsel for such party, of prohibiting the Merger, or by any party hereto if Parent any court of competent jurisdiction in the United States or Merger Sub any State shall have breached issued an order, judgment or failed to perform any representationdecree permanently restraining, warranty, covenant enjoining or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by otherwise prohibiting the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”)Merger, and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent order, judgment or decree shall have become final and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offernonappealable;
(e) by Parent the Company, by written notice to Parent, if (i) there shall have been a breach of any representation, warranty, covenant or agreement on the part exist breaches of the Company contained in this Agreement such that representations and warranties of Parent made herein as of the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied anddate hereof which breaches, in either the aggregate, would be reasonably likely to result in a Parent Material Adverse Effect, and such case, such breach breaches shall not have been cured prior to remedied within 20 days after receipt by Parent of notice in writing from the earlier of (A) 30 days following notice Company, specifying the nature of such breach breaches and requesting that they be remedied or (ii) Parent (or its appropriate subsidiaries) shall have failed to the Company perform and (B) the Termination Date; provided that Parent comply with, in all material respects, its agreements and covenants hereunder, and such failure to perform or comply shall not have been remedied within 20 days after receipt by Parent of notice in writing from the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach Company, specifying the nature of any of its representations, warranties, covenants or agreements contained in this Agreement; provided such failure and requesting that this Agreement may not it be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerremedied;
(f) by Parent Parent, by written notice to the Company, if (i) there exist material breaches of the representations and warranties of the Company made herein as of the date hereof which breaches, in the event that an aggregate, would be reasonably likely to result in a Company Material Adverse Recommendation Change has occurred;
(g) Effect, and such breaches shall not have been remedied within 20 days after receipt by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after of notice in writing from Parent, specifying the twentieth Business Day following an Adverse Recommendation Change if nature of such breaches and requesting that they be remedied, (xii) the Majority Tender Condition has Company (or its appropriate subsidiaries) shall not then been satisfied have performed and complied with its agreements and covenants contained in Section 6.1(b) and (yc) Parent has or shall have failed to perform and comply with, in all material respects, its other agreements and covenants hereunder, and such failure to perform or comply shall not increased have been remedied within 20 days after receipt by the Offer Price Company of notice in an amount sufficient to permit writing from Parent, specifying the nature of such failure and requesting that it be remedied; or (iii) the Board of Directors of the Company or any committee thereof (A) shall withdraw or modify in any manner adverse to reinstate Parent its approval or recommendation of this Agreement or the Offer Recommendation transactions contemplated herein, (B) shall fail to reaffirm such approval or recommendation upon Parent's request within two days of such request, (C) shall approve or recommend any acquisition of the Company or a material portion of its assets or any tender offer for the shares of capital stock of the Company, in each case by a party other than Parent or any of its affiliates, or (D) shall resolve to take any of the actions specified in clause (A), (B) or (C); or
(g) by the Company prior to the approval of this Agreement by the shareholders of the Company, upon five days' prior notice to Parent, if the Company is not in breach of this Agreement and, as a result of an Alternative Proposal, the Board of Directors of the Company determines in good faith, that (i) the Alternative Proposal is financially superior to the Merger and the Merger Recommendation third party making the Alternative Proposal has demonstrated that any necessary financing has been obtained or is, in accordance with the reasonable judgment of the Board of Directors of the Company, obtainable and (ii) based upon the advice of outside counsel and such other matters as the Company Board of Directors deems relevant, including, as appropriate, applicable provisions of state law and after giving effect to all concessions which may be offered by the other party pursuant to the proviso below, that failure to do so would likely result in a breach of its fiduciary dutiesduties under applicable law; provided, however, that prior to any such termination, the Company shall, and shall cause its respective financial and legal advisors to, negotiate with Parent to attempt to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated herein.
Appears in 2 contracts
Sources: Merger Agreement (Energy East Corp), Merger Agreement (Central Maine Power Co)
Termination. This Agreement may be terminated and the Merger Mergers and any other transactions contemplated hereby by this Agreement may be abandoned at any time prior to the Company Merger Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of the Company (provided that such termination has been approved by the Special Committee) and Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company (provided that such termination has been approved by the Special Committee), if the Effective Time Mergers shall not have occurred been consummated on or before the date which is nine months from the date hereof June 29, 2025 (the “Termination Outside Date”); provided that, if on the Outside Date, the conditions to Closing set forth in Section 7.1(a) shall not have been satisfied, but all other conditions to the Closing shall have been satisfied (or in the case of conditions that by their terms are to be satisfied at the Closing, shall be capable of being satisfied or waived on such date) or waived, then the Outside Date may be extended by either the Company or Parent by written notice to the other Party for one (1) additional 45 day-period and such date, as so extended, shall be the “Outside Date”; provided, further, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b) shall not be available to the party seeking to terminate if Party whose breach of any action of such party (or, covenant or agreement set forth in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the proximate cause of, or resulted in, of the failure of the Effective Time Mergers to occur on or before the Termination Date and be consummated by such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause time;
(c) after by either Parent or Merger Sub accepts Shares for payment pursuant to the OfferCompany, if the Company Stockholder Approvals shall not have been obtained if a vote shall have been taken thereon at the Company Stockholders Meeting or at any postponement, recess or adjournment thereof taken in accordance with this Agreement;
(d) by the Company if either Parent or Merger Sub the Company, if any court or other Governmental Authority of competent jurisdiction shall have breached enacted, issued, promulgated or failed to perform entered any representationOrder that permanently restrains, warrantyenjoins, covenant renders illegal or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by otherwise permanently prohibits consummation of the words “Parent Material Adverse Effect”Mergers and such Order shall have become final and non-appealable; provided, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may shall not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant available to the Offer;
(e) by Parent if there shall have been a Party whose breach of any representation, warranty, covenant or agreement on set forth in this Agreement has been the part proximate cause of such Order;
(e) by Parent, if there has been a breach by the Company contained of any representation, warranty, covenant or agreement set forth in this Agreement such that the conditions any condition set forth in clause (cSection 7.2(a) or (dSection 7.2(b) of Exhibit A would not be satisfied and, in either such case, (and such breach shall is not have curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured prior to within the earlier of (Ai) 30 thirty days following after the giving of notice of such breach thereof by Parent to the Company describing such breach in reasonable detail and stating Parent’s intention to terminate this Agreement and abandon the Mergers and any other transactions contemplated by this Agreement or (Bii) three Business Days prior to the Termination Outside Date); provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) shall not be available to Parent if Parent or Merger Sub it is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant or agreements contained agreement set forth in this Agreement; provided that this Agreement may not be terminated pursuant , which breach would give rise to this a failure of a condition set forth in Section 8.1(e7.3(a) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferSection 7.3(b);
(f) by the Company (provided that such termination has been approved by the Special Committee), if there has been a breach by Parent or Merger Subs of any representation, warranty, covenant or agreement set forth in this Agreement such that any condition set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied (and such breach is not curable prior to the event Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) thirty days after the giving of notice thereof by the Company to the breaching Party describing such breach in reasonable detail and stating the Company’s intention to terminate this Agreement and abandon the Mergers and any other transactions contemplated by this Agreement or (ii) three Business Days prior to the Outside Date); provided, however, that an Adverse Recommendation Change has occurredthe right to terminate this Agreement pursuant to this Section 8.1(f) shall not be available to the Company if it is in material breach of any representation, warranty, covenant or agreement set forth in this Agreement, which breach would give rise to a failure of a condition set forth in Section 7.2(a) or Section 7.2(b);
(g) by Parent in Parent, prior to the event that time the Company Stockholder Approvals are obtained, if a willful and material breach Change of Section 6.4 has Recommendation shall have been made or occurred; or;
(h) by the Company (provided that such termination has been approved by the Special Committee), prior to the time the Company Stockholder Approvals are obtained, in connection with entering into an Alternative Acquisition Agreement providing for a Superior Proposal in accordance with Section 6.2(d); provided that prior to or concurrently with such termination, the Company pays or causes to be paid the Company Termination Fee due to Parent;
(i) by the Company (provided that such termination has been approved by the Special Committee), by written notice to Parent, if (i) all of the conditions in Section 7.1 and Section 7.2 have been satisfied or waived in writing by Parent (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied as of the date of termination of this Agreement if the Closing was held at the time of such termination), (ii) on or after the date the Closing should have occurred pursuant to Section 1.3, the Company has delivered written notice to Parent that (A) all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived in writing by Parent (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied as of the date of termination of this Agreement if the Closing was held at the time of such termination), (B) all of the conditions set forth in Section 7.1 and Section 7.3 have been satisfied or waived in writing by the Company (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied as of the date of termination of this Agreement if the Closing was held at the time of such termination) and (C) the Company is ready, willing and able to consummate the Closing, and (iii) Parent and Merger Sub have failed to consummate the Closing on or before the third Business Day after delivery of the notice referenced in clause (ii) of this Section 8.1(i) (or, if earlier, the Business Day immediately prior to the Outside Date), and the Company stood ready, willing and able to consummate the Closing throughout such period;
(j) by Parent, if at any time prior to the Closing, the lenders under the Company Credit Agreement accelerate or otherwise terminate the Company Credit Agreement; or
(k) by Parent or the Company, by written notice to the other Party, if the number of Company after Units is less than the twentieth Business Day following an Adverse Recommendation Change if Floor Unit Count as of such date in (xi) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation Adjustment Statement, as finally determined in accordance with its fiduciary dutiesSection 4.7 or (ii) two successive Monthly Company Unit Statements delivered pursuant to Section 6.19.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vacasa, Inc.), Agreement and Plan of Merger (Vacasa, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeClosing Date, notwithstanding approval by whether before or after the shareholders receipt of the Company:Requisite Vote (except as otherwise provided below):
(a) by the mutual written consent of Parent, Merger Sub NXDT and the Company;; or
(b) by Parent either of the Company, on the one hand, or NXDT, on the Company if other hand, by written notice to the other, if:
(i) any court Governmental Entity of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have authority has issued a final an order, decree or ruling or taken any other final action in each case permanently restraining, enjoining or otherwise prohibiting the Merger Mergers substantially on the terms contemplated by this Agreement and such order, decree, ruling or other action is or shall have has become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)non-appealable; provided provided, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b)(i) shall will not be available to a Party if the party seeking to terminate if any action issuance of such party (orfinal, non-appealable order, decree or ruling or taking of such other action was primarily due to the failure of the Company, NHT Intermediary, NHT Holdings or the NHT OP, in the case of Parenttermination by the Company, or NXDT, NXDT Intermediary, NXDT OP or NXDT Merger Sub) or the failure of such party (or, in the case of Parenttermination by NXDT, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to Agreement; or
(ii) the Effective Time has Mergers have not have been the cause of, or resulted in, the failure of the Effective Time to occur consummated on or before May 22, 2025 or such later date as may be agreed to in writing by the Termination Date and such action or failure Parties (the “Outside Date”); provided, however, that the right to perform constitutes a breach of this Agreement; and provided further that terminate this Agreement may not be terminated pursuant to this clause (cSection 8.1(b)(ii) after Parent or Merger Sub accepts Shares for payment pursuant will not be available to the Offer;
(d) by Company, if the Company Company, NHT Intermediary, NHT Holdings or NHT OP, or to NXDT, if Parent NXDT, NXDT Intermediary, NXDT OP or NXDT Merger Sub shall Sub, as applicable, have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” respect its obligations under this Agreement in any manner that have caused or “materially”), resulted in the failure to consummate the Mergers on or before such date; or
(iii) the Company Merger were submitted to the Old NHT Unitholders at a duly held Unitholders’ Meeting or any adjournment or postponement thereof at which the Company Merger is voted upon and (i) such breach the Requisite Vote has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectobtained; provided that the Company NXDT shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(b)(iii) if the failure to obtain the Requisite Vote is due to the failure of NXDT or an entity over which it has control or direction to vote in favor of the Mergers and the Reorganization; or
(c) by written notice from the Company to NXDT, if:
(i) prior to obtaining the Requisite Vote, the Old NHT Board effects an Adverse Recommendation Change in accordance with Section 6.6(d) in connection with a Superior Proposal and the Old NHT Board has approved, and, concurrently with the termination hereunder, the Company enters into a definitive agreement providing for the implementation of a Superior Proposal, but only if the Company is not then in material breach of Section 6.6; provided that such termination will not be effective unless the Company has paid the Company Termination Fee in accordance with Section 8.3(b) or concurrently pays the Company Termination Fee in accordance with Section 8.3(b); or
(ii) NXDT, NXDT Intermediary, NXDT OP or NXDT Merger Sub have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions a condition set forth in clause (cSection 7.3(a) or (dSection 7.3(b) would be incapable of Exhibit A would being satisfied by the Outside Date, provided, however, that the Company may not be satisfied and, in either such case, terminate this Agreement pursuant to this Section 8.1(c)(i) unless any such breach shall or failure to perform has not have been cured prior within 20 days after written notice by the Company to the earlier of (A) 30 days following notice NXDT informing NXDT of such breach or failure to the Company perform and (B) the Termination Date; provided that Parent shall not have the right intention to terminate this Agreement pursuant to this Section 8.1(e) if Parent 8.1(c)(i), except that no cure period shall be required for any breach or Merger Sub is then in material breach of failure to perform that by its nature cannot be cured prior to the Outside Date; and provided, further, that neither the Company nor NHT OP have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this AgreementAgreement in any material respect; provided that or
(d) by written notice from NXDT to the Company, if:
(i) the Company, NHT Intermediary, NHT Holdings or NHT OP have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement such that a condition set forth in Section 7.2(a) or Section 7.2(b) would be incapable of being satisfied by the Outside Date, provided, however, that NXDT may not be terminated terminate this Agreement pursuant to this Section 8.1(e8.1(d)(i) unless any such breach or failure to perform has not been cured within 20 days after Parent written notice by NXDT to the Company informing the Company of such breach or failure to perform and intention to terminate this Agreement pursuant to this Section 8.1(d)(i) except that no cure period shall be required for any breach or failure to perform that by its nature cannot be cured prior to the Outside Date; and provided, further, that neither NXDT, NXDT Intermediary, NXDT OP nor NXDT Merger Sub accepts Shares for payment pursuant have breached or failed to the Offer;
(f) by Parent perform any of its representations, warranties, covenants or other agreements contained in the event that an Adverse Recommendation Change has occurred;
(g) by Parent this Agreement in the event that a willful and any material breach of Section 6.4 has occurredrespect; or
(hii) by Parent or the Company after the twentieth Business Day following Old NHT Board has effected an Adverse Recommendation Change if Change, Old NHT enters into an Alternative Acquisition Agreement (xother than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.6) the Majority Tender Condition has not then been satisfied or Old NHT shall have breached or failed to perform its covenants and (y) Parent has not increased the Offer Price agreements set forth in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesSection 6.6.
Appears in 2 contracts
Sources: Merger Agreement (Nexpoint Diversified Real Estate Trust), Merger Agreement (Nexpoint Diversified Real Estate Trust)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at If any time prior to the Effective Time, notwithstanding approval by the shareholders of the Companyfollowing events occur, the IESO may terminate this Agreement by providing the Participant with written notice:
(a) The Participant fails to observe or perform any covenant or obligation required to be observed or performed under this Agreement and such failure continues for a period of thirty (30) calendar days after delivery of written notice by mutual written consent of Parent, Merger Sub and the CompanyIESO to cure such failure;
(b) by Parent Any information contained in the Participant’s Enrollment Package or the Company if any court of competent jurisdiction Accepted Auction Offer is inaccurate, incomplete or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealablemisleading;
(c) Any representation or warranty made by either Parent the Participant in this Agreement is not true or correct in any material respect when made and is not made true or correct in all material respects within thirty (30) calendar days after receipt by the Company if the Effective Time shall not have occurred on or before the date which is nine months Participant of written notice of such fact from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferIESO;
(d) by The Participant becomes or is declared Insolvent, becomes the Company if Parent subject of any proceeding related to its liquidation or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement insolvency which is not dismissed within ninety (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i90) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has hadcalendar days, or would reasonably be expected to have, individually or in makes an assignment for the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach benefit of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offercreditors;
(e) An effective resolution is passed or documents are filed in an office of public record in respect of, or a judgment or order is issued by Parent if a court of competent jurisdiction ordering, the dissolution, termination of existence, liquidation or winding up of the Participant or of the owner(s) or occupier(s) of the Facilities unless such filed documents are immediately revoked or otherwise rendered inapplicable, or unless there shall have has been a breach permitted and valid assignment of any representationthis Agreement by the Participant under this Agreement to a Person which is not dissolving, warrantyterminating its existence, covenant liquidating or agreement on the part winding up and such Person has assumed all of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in Participant’s obligations under this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;.
(f) by Parent in The Participant assigns this Agreement without first obtaining the event that an Adverse Recommendation Change has occurred;consent of the IESO; or
(g) Without cause upon sixty (60) calendar days’ written notice by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesIESO.
Appears in 2 contracts
Sources: Energy Efficiency Auction Pilot Program Agreement, Energy Efficiency Auction Pilot Program Agreement
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by whether before or after the shareholders receipt of the CompanyEagles Shareholder Approval or the Company Stockholder Approval:
(a) by the mutual written consent of Parent, Merger Sub and the Company, MergerCo and Eagles;
(b) by Parent either of Eagles, on the one hand, or the Company if any court of competent jurisdiction or MergerCo, on the other Governmental Entity located or having jurisdiction within hand, by written notice to the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;other:
(ci) by either Parent or the Company or Eagles if (A) holders of a majority of the Effective Time outstanding Eagles Shares shall have refused to give the Eagles Shareholder Approval , (B) the Company Stockholders Meeting cannot be held because of the lack of a quorum of the Company’s stockholders, or (C) at the Company Stockholders Meeting (including any adjournment or postponement), the Company Stockholder Approval shall not have occurred on or before the date which is nine months from the date hereof been obtained (the “Termination Date”); provided that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(i) shall not be available to the any party seeking termination who at the time is in breach of or has failed to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of fulfill its obligations under this Agreement);
(ii) if any Governmental Entity of competent jurisdiction shall have issued an order, decree, judgment, injunction or taken any other action (which order, decree, judgment, injunction or other action the parties hereto shall have used their commercially reasonable efforts to lift), which permanently restrains, enjoins or otherwise prohibits or makes illegal the consummation of the Merger, and such order, decree, judgment, injunction or other action shall have become final and non-appealable; or
(iii) if the consummation of the Merger shall not have occurred on or before October 31, 2006 (the “Drop Dead Date”); provided, however, that the right to terminate this Agreement required under this Section 8.1(b)(iii) shall not be available to be performed at or prior any party whose failure to the Effective Time comply with any provision of this Agreement in a material respect has been the proximate cause of, or resulted in, the failure of the Effective Time Merger to occur on or before the Termination Date and such action Drop Dead Date;
(c) by written notice from the Company to Eagles, (i) if Eagles breaches or fails to perform in any material respect any of its representations, warranties or covenants contained in this Agreement, which breach or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant would give rise to the Offerfailure of a condition set forth in Section 7.2(a) or 7.2(b) and such condition is incapable of being satisfied by the Drop Dead Date or (ii) following the failure of the condition set forth in Section 7.2(c);
(d) by written notice from Eagles to the Company, (i) if the Company if Parent or Merger Sub shall have breached MergerCo breaches or failed fails to perform in any representationmaterial respect any of its representations, warranty, covenant warranties or agreement covenants contained in this Agreement (without giving effect Agreement, which breach or failure to any limitation on any representation perform would give rise to the failure of a condition set forth in Section 7.3(a) or warranty indicated 7.3(b) and such condition is incapable of being satisfied by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” Drop Dead Date or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or following the failure of the conditions set forth in the aggregate, a Parent Material Adverse Effect; provided that Section 7.3(c);
(e) by written notice from the Company shall not have to Eagles, in connection with the right Company’s entering into a definitive agreement to terminate effect a Superior Proposal in accordance with Section 6.5; provided, however, that prior to terminating this Agreement pursuant to this Section 8.1(d) if 8.1(e), the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part provided Eagles with at least five Business Days prior written notice of the Company contained Company’s decision to so terminate. Such notice shall indicate in this Agreement such that reasonable detail the material terms and conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach Superior Proposal, including the amount and form of the proposed consideration and whether such Superior Proposal is subject to any material conditions. An election by the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may shall not be terminated pursuant effective until the Company shall have paid the Break-up Fee to this Eagles as provided in Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer8.2(b);
(f) by Parent written notice from Eagles to the Company, in connection with Eagles entering into a definitive agreement to effect a Superior Proposal in accordance with Section 6.5; provided, however, that prior to terminating this Agreement pursuant to this Section 8.1(f), Eagles shall have provided the event that an Adverse Recommendation Change has occurredCompany with at least five Business Days prior written notice of Eagles decision to so terminate. Such notice shall indicate in reasonable detail the material terms and conditions of such Superior Proposal, including the amount and form of the proposed consideration and whether such Superior Proposal is subject to any material conditions. An election by the Company to terminate this Agreement pursuant to this Section 8.1(f) shall not be effective until Eagles shall have paid the Break-up Fee to the Company as provided in Section 8.2(b);
(g) by Parent written notice of the Company to Eagles, if the Eagles Board shall (i) fail to include the Eagles Recommendation in the event Proxy Statement, (ii) withdraw or modify, in a manner material and adverse to the Company or MergerCo, such recommendation, or (iii) recommend that a willful and material breach the holders of Section 6.4 has occurred; orEagles Common Shares accept or approve any Acquisition Proposal;
(h) by Parent or written notice of Eagles to the Company, if the Company after Board shall (i) fail to include the twentieth Business Day following an Adverse Company Recommendation Change if in the Proxy Statement, (xii) withdraw or modify, in a manner material and adverse to Eagles, such recommendation, or (iii) recommend that the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors holders of the Company Common Shares accept or approve any Acquisition Proposal; or
(i) by Eagles if the Company shall prevent or unreasonably restrict the Manager from taking the actions contemplated by the Interim Management Agreement or shall materially breach the Interim Management Agreement or shall fail to reinstate consent to the Offer Recommendation and reasonable expenses of the Merger Recommendation in accordance with its fiduciary dutiesManager.
Appears in 2 contracts
Sources: Merger Agreement (Sunset Financial Resources Inc), Agreement and Plan of Merger (Sunset Financial Resources Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval adoption thereof by the shareholders stockholders of the Company:
(a) by mutual written consent of Parent, Merger Sub and the Company;
(b) by either Parent or the Company if any court of competent jurisdiction United States Governmental Entity, United Kingdom Governmental Entity, the European Commission, or other any Governmental Entity located or having jurisdiction within of the United States jurisdictions listed on Schedule 7.1(b) of the Company Disclosure Schedule, shall have issued a final order, decree or ruling an Order or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling Order or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “"Termination Date”"); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company (i) if Parent or Merger Sub there shall have breached or failed to perform been a material breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement (without giving effect to Agreement, or if any limitation on any such representation or warranty indicated by shall have become untrue or inaccurate, such that (A) the words “Parent Material Adverse Effect”, “conditions set forth in all material respects”, “in any material respect”, “material” Sections 7.3(a) or “materially”), 7.3(b) would not be satisfied and (iB) such breach has or inaccuracy is not capable of being cured or, if reasonably capable of being cured, shall not have been cured prior to the earlier of (AI) 30 10 business days following notice of such breach to Parent or inaccuracy and (BII) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectDate; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(d)(i) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that , or (ii) prior to the adoption of this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant by the stockholders of the Company, in accordance with, and subject to the Offerterms and conditions of, Section 6.5(b);
(e) by Parent (i) if there shall have been a material breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement Agreement, or if any such representation or warranty shall have become untrue or inaccurate, such that (A) the conditions set forth in clause (cSections 7.2(a) or (d7.2(b) of Exhibit A would not be satisfied and, in either such case, and (B) such breach or inaccuracy is not capable of being cured or, if reasonably capable of being cured, shall not have been cured prior to the earlier of (AI) 30 10 business days following notice of such breach to the Company or inaccuracy and (BII) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e8.1(e)(i) if Parent or Merger Sub is then in material breach of any of its their representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e, or (ii) after Parent or Merger Sub accepts Shares for payment pursuant to if the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach Board of Section 6.4 has occurred; or
(h) by Parent or Directors of the Company after the twentieth Business Day following an Adverse Recommendation Change if (xA) the Majority Tender Condition has not then been satisfied shall have withdrawn, modified or changed (it being understood and (y) Parent has not increased the Offer Price in an amount sufficient to permit agreed that any "stop-look-and-listen" communication by the Board of Directors of the Company to reinstate the Offer Recommendation and stockholders of the Company pursuant to Rule 14d-9(f) of the Exchange Act, or any similar communication to the stockholders of the Company in connection with the commencement of a tender offer or exchange offer containing the substance of a "stop-look-and-listen" communication pursuant to Rule 14d-9(f), shall not be deemed to constitute a withdrawal, modification or change of its recommendation of this Agreement or the Merger) in a manner adverse to Parent or Merger Sub its approval or recommendation of this Agreement or the Merger, or shall have resolved to effect any of the foregoing, or (B) shall have recommended to the stockholders of the Company an Acquisition Proposal other than the Merger, or shall have resolved to effect the foregoing; or
(f) by either Parent or the Company if, upon a vote taken thereon at the Stockholders Meeting, this Agreement shall not have been adopted by the Merger Recommendation in accordance with its fiduciary dutiesRequisite Votes.
Appears in 2 contracts
Sources: Merger Agreement (Grey Global Group Inc), Merger Agreement (WPP Group PLC)
Termination. This Agreement may be terminated and the Merger contemplated hereby herein may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after approval of matters presented in connection with the Merger by the shareholders stockholders of the Company:Company (with any termination by Parent also being an effective termination by Purchaser):
(a) by the mutual written consent of Parent, Merger Sub Parent and the Company;
(b) by either of Parent or the Company if (i) a statute, rule, executive order or other Applicable Law shall have been enacted, entered, or promulgated by any Governmental Authority prohibiting the transactions contemplated hereby on the terms contemplated by this Agreement or making the consummation of the Merger illegal or (ii) any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Authority shall have issued a final an order, decree or ruling or taken any other final action action, in each case permanently restraining, enjoining or otherwise prohibiting the Merger transactions contemplated hereby and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable; provided, however, that the party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have complied in all material respects with its obligations under Section 6.5, Section 6.8 and Section 6.13;
(c) by either of Parent or the Company if the Effective Time consummation of the Merger shall not have occurred on or before the date which is nine months from the date hereof February 26, 2014 (the “Termination Date”); provided provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if have breached in any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of material respect its obligations under this Agreement required Agreement; provided further, however, that if the failure to consummate the Merger by the Termination Date is due solely to a delay in (i) satisfying the condition set forth in Section 7.1(c) and/or (ii) clearance by the SEC of the Proxy Statement, the date referred to in this Section 8.1(c) as the “Termination Date” shall be performed at or prior the earlier of (1) April 26, 2014 (provided that Parent may extend such date to May 26, 2014 upon notice to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur Company given on or before April 26, 2014 if the Termination Date and such action or failure to perform constitutes consummate the Merger by April 26, 2014 is due solely to a breach delay in satisfying the condition set forth in Section 7.1(c)) or (2) five (5) Business Days after both of this Agreement; the following have occurred: (A) the satisfaction of the condition set forth in Section 7.1(c) and provided further that (B) this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to shall have been adopted by the Offer;affirmative vote of the holders of the requisite number of shares of capital stock of the Company in accordance with the Company’s Certificate of Incorporation, the DGCL, and other Applicable Law.
(d) by either Parent or the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in the required approval of the stockholders of the Company contemplated by this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have been obtained at the Stockholders Meeting, or any adjournment or postponement thereof; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(d) if shall not be available to the Company is then in where the failure to obtain the approval of the stockholders of the Company shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;.
(e) by Parent if there shall have been a breach of any representationthe Company:
(i) if, warranty, covenant or agreement on prior to such time as the part stockholders of the Company contained in adopt this Agreement such at the Stockholders Meeting, the Company’s Board of Directors shall have entered into any definitive Acquisition Proposal Documentation with respect to a Superior Proposal in accordance with Section 6.7; provided, however, that the conditions set forth in clause (c) or (d) of Exhibit A would Company shall not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right entitled to terminate this Agreement pursuant to this Section 8.1(e)(i) unless (x) the Company has complied with the requirements of Section 6.7 that the Company is required to satisfy before taking action pursuant to this Section 8.1(e) and (y) prior to or concurrently with such termination the Company pays the fee due under Section 8.3; or
(ii) if (A) there shall be a breach of any representation or warranty of Parent or Merger Sub is then Purchaser in material this Agreement, or (B) there shall be a breach by Parent or Purchaser of any of its representations, warranties, covenants or agreements contained in this Agreement, which breach, in the case of clause (A)or (B), (x) would give rise to the failure of the condition set forth in Section 7.2(a) or 7.2(b) and (y) either is not capable of being cured or, if it is capable of being cured, has not been cured by the twentieth (20th) Business Day following written notice to Parent from the Company of such breach; provided provided, that the Company may not terminate this Agreement may not be terminated pursuant to this Section 8.1(e8.1(e)(ii) after if Parent or Merger Sub accepts Shares for payment Purchaser, as applicable, is using reasonable best efforts to cure such breach and such breach could reasonably be expected to be cured by the Termination Date (as determined in accordance with Section 8.1(c)); provided further, that the Company may not terminate this Agreement pursuant to this Section 8.1(e)(ii) if the OfferCompany is in material breach of this Agreement;
(iii) if the Marketing Period has been completed and the conditions to closing set forth in Sections 7.1 and 7.3 are satisfied (other than those conditions that by their nature can only be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied) and Parent and Purchaser are unable to satisfy their obligation to effect the Closing by the date the Closing is required to have occurred pursuant to Section 1.2 because of a Financing Failure; provided, that the Company may not terminate this Agreement pursuant to this Section 8.1(e)(iii) if the Company is in material breach of this Agreement; or
(iv) if the Termination Date has lapsed and the conditions to closing set forth in Sections 7.1 (other than Section 7.1(c)) and 7.3 are satisfied (other than those conditions that by their nature can only be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied) and Parent and Purchaser are unable to satisfy their obligation to effect the Closing by the date the Closing is required to have occurred pursuant to Section 1.2 because of a failure to satisfy the condition set forth in Section 7.1(c); provided, that the Company may not terminate this Agreement pursuant to this Section 8.1(e)(iv) if the Company is in material breach of this Agreement.
(f) by Parent in the event that an Adverse Recommendation Change has occurred;or Purchaser:
(gi) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or if the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit or the Board of Directors of the Company shall have (A) effected a Change of Recommendation, (B) entered into any Acquisition Proposal Documentation, or (C) failed to reinstate publicly reaffirm the Offer Company Board Recommendation upon the reasonable written request therefor by Parent by the earlier of ten (10) Business Days following a reasonable written request by Parent and two (2) Business Days prior to the Merger Recommendation Stockholders Meeting;
(ii) if (A) there shall be a breach of any representation or warranty of the Company in this Agreement or (B) there shall be a breach by the Company of any of its covenants or agreements contained in this Agreement, which breach, in the case of clause (A) or (B), (x) would give rise to the failure of the condition set forth in Section 7.3(a) or 7.3(b) and (y) either is not capable of being cured or, if it is capable of being cured, has not been cured by the twentieth (20th) Business Day following written notice to the Company from Parent or Purchaser of such breach; provided, that Parent or Purchaser may not terminate this Agreement pursuant to this Section 8.1(f)(ii) if the Company is using reasonable best efforts to cure such breach and such breach could reasonably be expected to be cured by the Termination Date (as determined in accordance with Section 8.1(c)); provided further, that Parent or Purchaser may not terminate this Agreement pursuant to this Section 8.1(f)(ii) if Parent or Purchaser is in material breach of this Agreement; or
(iii) if the Company shall have committed a willful and material breach of its fiduciary dutiesobligations or agreements contained in Section 6.7.
Appears in 2 contracts
Sources: Merger Agreement (Akorn Inc), Merger Agreement (Hi Tech Pharmacal Co Inc)
Termination. This Agreement may be terminated terminated, and the Merger contemplated hereby may be abandoned abandoned, at any time prior to the Effective Time, notwithstanding approval by action taken or authorized by the shareholders Board of Directors of the Companyterminating party or parties, whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company or the stockholders of ACC:
(a) by By mutual written consent of Parent, Merger Sub ACC and the Company, by action of their respective Boards of Directors;
(b) by Parent or By either the Company or ACC if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before been consummated prior to May 31, 2013 (such date, the date which is nine months from the date hereof (the “Termination ''Outside Date”''); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time (including without limitation such party's obligations set forth in Section 5.7) has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause Outside Date;
(c) after Parent By either the Company or Merger Sub accepts Shares for payment pursuant ACC if any governmental entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable (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 Offerprovisions 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 if Parent or Merger Sub shall have breached or failed to perform of any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and which (i) such breach has would result in a failure of a condition set forth in Section 6.3(a) or 6.3(b) and (ii) cannot been be cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectOutside Date; provided that ACC shall have given the Company shall not have the right written notice, delivered at least twenty (20) days prior to such termination, stating ACC's intention to terminate this Agreement pursuant to this Section 8.1(d7.1(d) if and the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares basis for payment pursuant to the Offersuch termination;
(e) by Parent 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 shall have has been a breach by ACC of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions which (i) would result in a failure of a condition set forth in clause (cSection 6.2(a) or 6.2(b) and (dii) of Exhibit A would cannot be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Outside Date; provided that Parent the Company shall not have given ACC written notice, delivered at least twenty (20) days prior to such termination, stating the right Company's intention to terminate this Agreement pursuant to this Section 8.1(e7.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares and the basis for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurredsuch termination; or
(h) by Parent By written notice of either ACC or the Company after the twentieth Business Day following an Adverse Recommendation Change if (xi) the Majority Tender Condition has Company Stockholder Approval shall not then have been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of obtained at the Company to reinstate Stockholders' Meeting duly convened therefor (or at any adjournment or postponement thereof), or (ii) the Offer Recommendation and ACC Stockholder Approval shall not have been obtained at the Merger Recommendation in accordance with its fiduciary dutiesACC Stockholders' Meeting duly convened therefor (or at any adjournment or postponement thereof).
Appears in 2 contracts
Sources: Merger Agreement (Brazil Interactive Media, Inc.), Merger Agreement (Brazil Interactive Media, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by mutual written consent of Parent, Merger Sub the Company and the CompanySPAC;
(b) by Parent or the Company or SPAC by written notice to the other Parties, if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Authority shall have issued a final orderenacted, decree issued, promulgated, enforced or ruling or taken entered any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have Governmental Order which has become final and nonappealablenon-appealable and has the effect of making consummation of the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions;
(c) by either Parent or the Company or SPAC by written notice to the other Parties, if the Effective Time SPAC Shareholders Approval shall not have been obtained by reason of the failure to obtain the required vote at the SPAC Shareholders’ Meeting duly convened therefor (after giving effect to any adjournment or postponement thereof);
(d) by SPAC by written notice to the other Parties if the Company Shareholders Approval shall not have been obtained within ten (10) Business Days after the Joint Proxy Statement/Prospectus became effective;
(e) by SPAC by written notice to the other Parties if the Company or any Acquisition Entity is in material breach of its respective warranties or obligations hereunder that would render any of the conditions set forth in Section 9.2 incapable of being satisfied on the Closing Date, and such breach is either (i) not capable of being cured prior to the Outside Date or (ii) if curable, is not cured within the earlier of (x) thirty (30) days after the giving of written notice by SPAC to the Company and (y) two (2) Business Days prior to the Outside Date;
(f) by the Company by written notice to the other Parties if SPAC is in material breach of its warranties or obligations hereunder that would render any of the conditions set forth in Section 9.3 incapable of being satisfied on the Closing Date, and such breach is either (i) not capable of being cured prior to the Outside Date or (ii) if curable, is not cured within the earlier of (x) thirty (30) days after the giving of written notice by the Company to SPAC and (y) two (2) Business Days prior to the Outside Date;
(g) by the Company or SPAC by written notice to the other Parties, if the Closing shall not have occurred by 5:00 p.m. (Hong Kong time) on or before the date which is nine months from the date hereof (the “Termination Outside Date”); provided that the right to terminate this Agreement pursuant to this Section 8.1(c10.1(g) shall not be available to the party seeking to terminate if any action of such party Party whose breach (or, in the case of Parentthe Company, Merger Subincluding breach by any Acquisition Entity) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained set forth in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” manner shall have been the primary cause of the failure of the Closing to be have occurred on or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Outside Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company or SPAC by written notice to the other Parties, if there shall have occurred a SPAC Material Adverse Effect after the twentieth Business Day following an SPAC Accounts Date (in the case of a termination by the Company) or a Company Material Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of Effect after the Company to reinstate Accounts Date (in the Offer Recommendation and case of a termination by the Merger Recommendation in accordance with its fiduciary dutiesSPAC).
Appears in 2 contracts
Sources: Business Combination Agreement (Lanvin Group Holdings LTD), Business Combination Agreement (Primavera Capital Acquisition Corp.)
Termination. a. This Agreement may be shall remain in effect unless and until terminated and in accordance with the Merger contemplated hereby may be abandoned at immediately following sentence. This Agreement shall automatically terminate, without any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final further action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of any of the Company contained in this Agreement such that parties hereto or any other person, if all (but not less than all) investment management agreements, investment advisory agreements and sub-advisory agreements between Apollo, on the conditions set forth in clause (c) or (d) one hand, and AHL, any of Exhibit A would not be satisfied andthe Subsidiaries, in either such caseReinsurance Counterparties and/or Reinsurance-Related Third Party Managers, such breach shall not on the other hand, have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the 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 terminated in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if accordance with (x) the Majority Tender Condition has not then been satisfied their respective terms and (y) Parent has not increased AHL’s bye-laws as in effect from time to time (the Offer Price in an amount sufficient “Bye-laws”) (to permit the Board extent the Bye-laws are applicable to such a termination) and none of Directors such agreements have been replaced by any similar investment management agreement or investment advisory agreement for the benefit of AHL or any of the Company Subsidiaries; provided, that, (i) any payments or obligations due hereunder, including, but not limited to, the 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 reinstate any day prior to the Offer Recommendation date of such termination of this Agreement (with applicable amounts calculated ratably based on the actual number of days in the calendar quarter that preceded such termination of this Agreement) shall be payable by AHL, or rebatable to AHL, as applicable, within 10 business days (or, if such amount is not determinable within such period, then within 3 business days after such amount is determined) of such termination of this Agreement, (ii) in no event shall any payments or 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 day or period beginning on or after the Merger Recommendation date of such termination of this Agreement and (iii) Sections 4 (for so long as ISG manages any Account of a 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 defined terms relating thereto), shall survive such termination of this Agreement. For purposes of clarification, unless this Agreement is terminated in accordance with the immediately preceding sentence, this Agreement shall continue to apply with respect to an Account (and all of the other Accounts) even if the ISG/AHL Investment Management Agreement relating to such Account is terminated pursuant to its fiduciary dutiesterms or 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 use their good faith efforts to enter into a replacement fee agreement that addresses the portions of this Agreement that relate to ACRA Entities and the ACRA Accounts.
Appears in 2 contracts
Sources: Fee Agreement (Athene Holding LTD), Fee Agreement (Athene Holding LTD)
Termination. This Despite anything in this Agreement to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be Transactions abandoned at any time prior to before the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of ParentParent and Company, Merger Sub duly authorized by Parent and by the board of directors of Company;
(b) by either Parent or Company (provided that the Company terminating party is not then in material breach of any representation, warranty, covenant, or agreement contained in this Agreement) if (i) there has been a material breach by the non-terminating party of any representation, warranty, covenant, or agreement as set forth in the Agreement that results in the closing conditions in Article VII in the terminating party’s favor not being capable of being met by the date set forth in Section 9.1(c) below or (ii) if any court representation or warranty of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action non-terminating party is or shall have become final and nonappealablehas been untrue or inaccurate such that, in the aggregate, such untruths or inaccuracies would result, or reasonably be expected to result, in a Company Material Adverse Effect or a material adverse effect on a party’s ability to consummate the Transactions; provided, however, that if in each case such breach is curable, then this Agreement may not be terminated under this Section 9.1(b) until the earlier of (i) 30 days after delivery of written notice of such untruth or inaccuracy or breach, or (ii) the date on which the non-terminating party ceases to exercise commercially reasonable efforts to cure such untruth or inaccuracy or breach;
(c) by either Parent or the Company if the Effective Time shall Merger has not have occurred been consummated on or before the date which is nine months from 180 days following the date hereof termination or expiration of all statutory waiting periods (and any extension thereof) applicable to the Merger under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “Termination Outside Date”); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c) shall 9.1 will not be available to the any party seeking whose action or failure to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time act has been the principal cause of, of or resulted in, in the failure of the Effective Time Merger to occur have been consummated on or before the Termination Date such date and such action or failure to perform act constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(d) by the either Parent or Company if Parent any permanent injunction or Merger Sub shall have breached other order of a court or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and other competent authority preventing the Merger Recommendation in accordance with its fiduciary duties.will have become final and not subject to appeal;
Appears in 2 contracts
Sources: Merger Agreement (Flow International Corp), Merger Agreement (Flow International Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by action taken or authorized by the shareholders Board of Directors of the terminating party or parties, and except as provided below, whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company:
(a) by By mutual written consent of Parent, Merger Sub Parent and the Company, by action of their respective Boards of Directors;
(b) by Parent or By either the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof February 17, 2021, (the “Termination Date”); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, or resulted in, of the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement;
(c) By either the Company or Parent if any Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; and provided further that the party hereto seeking to terminate this Agreement may not be terminated pursuant to this clause (cSection 9.1(c) after Parent shall have used the level of efforts to remove such restraint or Merger Sub accepts Shares for payment prohibition as required by this Agreement; and provided, further, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any party hereto whose breach of any provision of this Agreement results in the Offerimposition of such order, decree or ruling or the failure of such order, decree or ruling to be resisted, resolved or lifted;
(d) By either the Company or Parent if 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);
(e) By Parent (i) prior to the Company Stockholders Meeting, if there shall have been a Company Change in Recommendation or the Board of Directors of the Company shall have approved or recommended a Company Acquisition Proposal (or the Board of Directors of the Company resolves to do any of the foregoing), whether or not permitted by Section 7.6, (ii) if the Company shall fail to call or hold the Company Stockholders Meeting in violation of Section 7.1(c); or (iii) if the Company shall have committed an Intentional Breach of any of its material obligations under Section 7.6;
(f) By the Company, pursuant to Section 7.6(c), subject to compliance with the applicable provisions of Section 7.6(c), Section 7.6(d), Section 7.6(e) and Section 9.2(d);
(g) By the Company if Parent or Merger Sub there shall have breached or failed to perform been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement (without giving effect to any limitation on any representation such that the conditions set forth in Section 8.3(a) or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), Section 8.3(b) would not be satisfied and (i) such breach has is not curable or (ii) (other than an Intentional Breach of Parent’s obligations under Article I) if such breach is curable, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse EffectDate; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(g) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(eh) by 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 clause (cSection 8.2(a) or (dSection 8.2(b) of Exhibit A would not be satisfied and, in either and (i) such casebreach is not curable or (ii) if such breach is curable, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(h) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 2 contracts
Sources: Merger Agreement (Franklin Resources Inc), Merger Agreement (Legg Mason, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by mutual written consent of Parent, Merger Sub the Investor and the Company;
(b) by Parent the Company or the Company if any court of competent jurisdiction or Investor, upon written notice to the other Governmental Entity located or having jurisdiction within party, in the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting event that the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall Closing does not have occurred occur on or before the date which is nine months from the date hereof Outside Date (the “Termination Date”as hereinafter defined); provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c5.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has shall have been the cause of, or shall have resulted in, the failure of the Effective Time Closing to occur on or before the Termination Date and prior to such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause date;
(c) after Parent by the Company or Merger Sub accepts Shares for payment pursuant the Investor, upon written notice to the Offerother party, in the event that any Governmental Entity shall have issued any order, decree or injunction or taken any other action restraining, enjoining or prohibiting any of the transactions contemplated by this Agreement, and such order, decree, injunction or other action shall have become final and nonappealable;
(d) by the Company or the Investor, upon written notice to the other party, if Parent the Company or Merger Sub shall have breached the Investor or failed any of their respective Affiliates receives written notice from or is otherwise advised by a Governmental Entity that it will not grant (or intends to perform rescind or revoke if previously approved) any representationRequired Approval;
(e) by the Investor, warranty, covenant if the Investor or agreement contained in any of its Affiliates receives written notice from or is otherwise advised by a Governmental Entity that it will not grant any Required Approval with respect to the Investor on the terms contemplated by this Agreement without imposing any Burdensome Condition;
(without giving effect to any limitation on any representation or warranty indicated f) by the words “Parent Material Adverse Effect”Company, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then not in material breach of any of its representations, warranties, covenants or agreements contained in the terms of this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if , and there shall have has been a breach of any representation, warranty, covenant or agreement on made by the part of the Company contained Investor in this Agreement Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that the conditions set forth in clause (cSection 1.2(c)(3)(i) or (dii) of Exhibit A would not be satisfied and, in either such case, and such breach shall or condition is not have been curable or, if curable, is not cured prior within thirty (30) days after written notice thereof is given by the Company to the earlier of Investor; or
(Ag) 30 days following notice of such breach to by the Company and (B) Investor, if the Termination Date; provided that Parent shall Investor is not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representationsthe terms of this Agreement, warrantiesand there has been a breach of any representation, covenants warranty, covenant or agreements contained agreement made by the Company in this Agreement; provided , or any such representation and warranty shall have become untrue after the date of this Agreement, such that this Agreement may Section 1.2(c)(2)(i) or (ii) would not be terminated pursuant to this Section 8.1(esatisfied and such breach or condition is not curable or, if curable, is not cured within thirty (30) days after Parent or Merger Sub accepts Shares for payment pursuant written notice thereof is given by the Investor to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesCompany.
Appears in 2 contracts
Sources: Stock Purchase Agreement (FJ Capital Management LLC), Stock Purchase Agreement (Centrue Financial Corp)
Termination. This Agreement may be terminated and the Merger and the other Transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by whether (except as expressly set forth below) before or after the shareholders of the CompanyCompany Stockholder Approval has been obtained:
(a) by mutual written consent of the Company and Parent, Merger Sub and the Company;
(b) by Parent or either the Company or Parent:
(i) if any court Governmental Entity of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final and nonappealable order, decree decree, ruling or ruling injunction or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger and such orderconsummation of the Merger; provided, decreehowever, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(i) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) material covenant or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations agreement under this Agreement required to be performed at has been the cause of or prior to resulted in the action or event described in this Section 8.1(b)(i) occurring;
(ii) if the Merger shall not have been consummated on or before 5:00 p.m. New York, New York time, on the date that is 12 months after the date of this Agreement (such date being the “End Date”); provided, that if (A) the Effective Time has been the cause of, or resulted in, the failure not occurred by such date by reason of nonsatisfaction of the Effective Time to occur on condition set forth in Section 7.1(c) or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (cSection 7.2(g) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) all other conditions in Article VII have theretofore been satisfied (other than those conditions that by their terms are to be satisfied at the Termination Closing, each of which is capable of being satisfied at the Closing) or (to the extent permitted by Law) waived, the End Date will be automatically extended to the date that is 15 months after the date of this Agreement (and (ii) such breach has hadall references to the End Date herein shall be as so extended); provided, or would reasonably be expected to havefurther, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to under this Section 8.1(d8.1(b)(ii) if shall not be available to any party whose failure to fulfill any material covenant or agreement under this Agreement has been the Company is then cause of or resulted in material the failure of the Merger to occur on or before such date;
(iii) in the event of a breach by the other party of any of its representations, warranties, covenants covenant or agreements other agreement contained in this Agreement; provided further that Agreement or if any representation and warranty of the other party contained in this Agreement may fails to be true and correct which (A) 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 Date and (B) cannot be terminated pursuant to this Section 8.1(d) or has not been cured by the earlier of 30 days after Parent or Merger Sub accepts Shares for payment pursuant the giving of written notice to the Offer;
breaching party of such breach or inaccuracy and the basis for such notice, and the date of the proposed termination (e) by Parent if there shall have been a breach “Terminable Breach”); provided, however, that the terminating party is not then in Terminable Breach of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(hiv) by Parent or if the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has Stockholder Approval shall not then have been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the obtained upon a vote held at a duly held Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.Stockholders Meeting;
Appears in 2 contracts
Sources: Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (Two Harbors Investment Corp.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders whether before or after receipt of the CompanyCompany Shareholder Approval (except as otherwise expressly noted), as follows:
(a) by mutual written consent of the Company and Parent, Merger Sub and the Company;
(b) by either Parent or the Company Company, upon written notice to the other Party:
(i) if the Merger shall not have been consummated on or before August 9, 2018 (as such date may be extended subject to the immediately succeeding proviso, the “End Date”), provided that if the condition to closing set forth in Section 6.01(e), solely in respect of the approval by or in connection with U.S. executive branch agencies that review FCC applications for national security and other issues, including the U.S. Department of Justice, Federal Bureau of Investigation, Department of Homeland Security, and National Security Agency, has not been satisfied or waived on or prior to such date, but all other conditions to Closing set forth in Article 6 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted by Law) waiver of those conditions), then the End Date shall automatically be extended to November 9, 2018, and provided further, however, that the right to terminate this Agreement under this Section 7.01(b)(i) shall not be available to any Party whose breach or failure to perform or comply with any obligation under this Agreement resulted in or was a proximate cause of the failure of the Merger to be consummated on or before the End Date;
(ii) if any court Governmental Authority of competent jurisdiction, located in the United States, Israel or in another jurisdiction or other Governmental Entity located or having jurisdiction within outside of the United States in which the Company or any of its Subsidiaries, or Parent or any of its Subsidiaries, engage in material business activities, shall have issued a final orderenacted, decree entered or ruling enforced any Order or taken any other final action Law permanently enjoining, restraining, enjoining prohibiting or otherwise prohibiting making illegal the Merger and such orderconsummation of the Merger, decree, ruling which Order or other action is or Law shall have become final and nonappealable;
non-appealable; provided, however, that (cA) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right Party seeking to terminate this Agreement pursuant to this Section 8.1(c7.01(b)(ii) shall have complied with its obligation in Section 5.05, including, with respect to Parent, using its commercially reasonable efforts to remove such Order in accordance with Section 5.05(f) and using its reasonable best efforts as set forth in Section 5.05(e), and (B) the right to terminate this Agreement under this Section 7.01(b)(ii) shall not be available to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action Party whose breach or failure to perform constitutes a breach of this Agreement; and provided further that or comply with any obligation under this Agreement may resulted in or was a proximate cause of the issuance of such Order or Law; or
(iii) if the Company Shareholder Approval shall not be terminated pursuant to this clause have been obtained upon a vote taken thereon at the Shareholders Meeting duly convened therefor or at any adjournment or postponement thereof;
(c) after Parent or Merger Sub accepts Shares for payment pursuant by Parent, upon written notice to the Offer;
(d) Company, if there has been any violation or breach by the Company if Parent of any covenant, representation or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement warranty contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”other than Section 5.14), which has prevented or would prevent the satisfaction of any condition to the obligations of Parent and Merger Sub to effect the Merger set forth in Section 6.01 or Section 6.02 and (i) such violation or breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to expressly waived by Parent and (B) the Termination Date and in writing, (ii) such breach Parent has had, or would reasonably be expected provided written notice to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right of such violation or breach and its intent to terminate this Agreement pursuant to this Section 8.1(d7.01(c) if and (iii) such violation or breach is not capable of being cured by the End Date or, to the extent so curable, has not been cured by the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to within the earlier of (A) 30 thirty (30) days following after receiving such written notice of such breach to the Company and thereof from Parent, or (B) three Business Days prior the Termination End Date; provided that provided, however, Parent shall not have the right be entitled to terminate this Agreement pursuant to this Section 8.1(e7.01(c) if there has been a violation or breach by Parent or Merger Sub is then in material breach which has prevented or would prevent satisfaction of any condition to the obligation of its representationsthe Company to effect the Merger set forth in Section 6.01 or Section 6.03;
(d) by the Company, warrantiesupon written notice to Parent, covenants if there has been any violation or agreements breach by Parent or Merger Sub of any covenant, representation or warranty contained in this Agreement; , which has prevented or would prevent the satisfaction of any condition to the obligation of the Company to effect the Merger set forth in Section 6.01 or Section 6.03 and (i) such violation or breach has not been expressly waived by the Company in writing, (ii) the Company has provided that written notice to Parent of such violation or breach and its intent to terminate this Agreement may not be terminated pursuant to this Section 8.1(e7.01(d) after and (iii) such violation or breach is not capable of being cured by the End Date or, to the extent so curable, has not been cured by Parent or and Merger Sub accepts Shares for payment within the earlier of (A) thirty (30) days after receiving such written notice thereof from the Company, or (B) three Business Days prior to the End Date; provided, however, the Company shall not be entitled to terminate this Agreement pursuant to this Section 7.01(d) if there has been a violation or breach by the OfferCompany which has prevented or would prevent satisfaction of any condition to the obligations of Parent and Merger Sub to effect the Merger set forth in Section 6.01 or Section 6.02;
(fe) by Parent the Company, upon written notice to Parent, prior to the time at which the Company Shareholder Approval has been obtained, to the extent permitted by and in accordance with the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful terms and material breach conditions of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following 5.02 in response to a Superior Proposal that was not solicited in material violation of this Agreement, in order to enter into a definitive Alternative Acquisition Agreement with respect to an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit Acquisition Proposal that the Board of Directors of the Company has concluded constitutes a Superior Proposal in accordance with Section 5.02; provided, that the Company prior to reinstate or concurrently with such termination, pays to Parent in immediately available funds any fees required to be paid pursuant to Section 7.03(b); or
(f) by Parent, upon written notice to the Offer Company, in the event that (i) the Board of Directors of the Company shall have effected a Company Adverse Recommendation Change, or (ii) at any time following receipt of an Acquisition Proposal, the Board of Directors of the Company failed to reaffirm its approval or recommendation of this Agreement and the Merger Recommendation as promptly as practicable (but in accordance with its fiduciary dutiesany event within five (5) Business Days) after receipt of any written request to do so from Parent.
Appears in 2 contracts
Sources: Merger Agreement (Magicjack Vocaltec LTD), Merger Agreement (B. Riley Financial, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeTime of the Merger, notwithstanding whether before or after the approval of this Agreement by the shareholders of the Company:
IUB and/or PTC: (a) by mutual written consent of Parent, Merger Sub IUB and the Company;
PTC; (b) by Parent either IUB or PTC: (i) if, at a duly held shareholders meeting of IUB or any adjournment thereof at which approval of this Agreement is voted upon, the Company approval of the shareholders of IUB shall not have been obtained; (ii) if, at a duly held shareholders meeting of PTC or any adjournment thereof at which approval of this Agreement is voted upon, the approval of the shareholders of PTC shall not have been obtained; (iii) if the Merger shall not have been consummated on or before March 31, 1998, unless the failure to consummate the Merger is the result of a willful and material breach of this Agreement by the party seeking to terminate this Agreement; PROVIDED, HOWEVER, that if all the conditions set forth in Sections 6.1 (other than 6.1(b)), 6.2 and 6.3 have been satisfied by or prior to such date, either IUB or PTC may, by notice to the other on or prior to such date, extend such date to the latest date so extended by either party but in no event later than May 31, 1998; (iv) if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final an order, decree or ruling or taken any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
non-appealable; (cv) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case event of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform other party of any representation, warranty, covenant or other agreement contained in this Agreement which (without giving effect A) would give rise to any limitation on any representation the failure of a condition set forth in Section 6.2(a) or warranty indicated by the words “Parent Material Adverse Effect”6.2(b) or Section 6.3(a) or 6.3(b), “in all material respects”, “in any material respect”, “material” or “materially”)as applicable, and (iB) such breach cannot be or has not been cured prior within 30 days after the giving of written notice to the earlier of (A) 30 days following notice breaching party of such breach to Parent and (B"Material Breach") the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided PROVIDED that the Company shall terminating party is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or other agreement on the part that would give rise to a failure of the Company contained in this Agreement such that the conditions set forth a condition described in clause (A) above); (c) by either IUB or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent PTC in the event that an Adverse Recommendation Change has occurred;
(gi) by Parent all the conditions to the obligation of such party to effect the Merger set forth in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then 6.1 shall have been satisfied and (yii) Parent has any condition to the obligation of such party to effect the Merger set forth in Section 6.2 (in the case of IUB) or Section 6.3 (in the case of PTC) is not increased capable of being satisfied prior to the Offer Price in an amount sufficient to permit the Board of Directors end of the Company period referred to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.Section 7.1(b)(iii); 29
Appears in 2 contracts
Sources: Merger Agreement (Indiana United Bancorp), Merger Agreement (PTC Bancorp)
Termination. This Agreement may be terminated terminated, and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Companyabandoned:
(a) at any time before the Closing, by mutual written consent agreement of Parent, Merger Sub the Seller Representative on behalf of Sellers and the CompanyPurchaser;
(b) at any time before the Closing, by Parent the Seller Representative on behalf of Sellers or Purchaser, in the Company event (i) of a material breach hereof by the non-terminating party if such non-terminating party fails to cure such breach within twenty (20) Business Days following notification thereof by the terminating party or (ii) upon notification of the non-terminating party by the terminating party that the satisfaction of any court condition to the terminating party’s obligations under this Agreement becomes impossible or impracticable with the use of competent jurisdiction commercially reasonable efforts if the failure of such condition to be satisfied is not caused by a breach hereof by the terminating party;
(c) at any time before the Closing, by the Seller Representative on behalf of Sellers or other Governmental Entity located by Purchaser, in the event that any Order or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action Law becomes effective restraining, enjoining or otherwise prohibiting or making illegal the Merger and such orderconsummation of any of the transactions contemplated by this Agreement, decree, ruling or other action is or shall have become final and nonappealableupon notification of the non-terminating party by the terminating party;
(cd) at any time after May 31, 2016 (the “Termination Date”) by either Parent the Seller Representative or Purchaser upon notification of the Company non-terminating party by the terminating party if the Effective Time Closing shall not have occurred on or before the such date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes consummate is not caused by a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company terminating party; provided, that if Parent or Merger Sub shall have breached or failed all of the conditions to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there Closing shall have been a breach satisfied, shall be capable of any representation, warranty, covenant being satisfied at such time or agreement on would be capable of being satisfied at such time but for the part of the Company contained in this Agreement such fact that the conditions set forth in clause Sections 8.05, 8.07 and 9.05 are not satisfied, the Termination Date may be extended by Purchaser or the Seller Representative from time to time by written notice to the other to a date not later than July 31, 2016; or
(ce) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured at any time prior to commencement of the earlier “roadshow” to be conducted for purposes of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representationsIPO Transactions, warrantiesby Purchaser, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(gi) by Parent in the event that any Seller fails to timely deliver a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation Pre-Roadshow Bring Down Certificate in accordance with its fiduciary dutiesSection 13.03, or (ii) any Pre-Roadshow Bring Down Certificate delivered to Purchaser fails to make the Preliminary Confirmations without qualification thereof or exception thereto.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Red Rock Resorts, Inc.), Membership Interest Purchase Agreement (Station Casinos LLC)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by mutual written consent of Parent, Merger Sub the Purchaser and the CompanySeller;
(b) by Parent either the Seller or the Company if any court of competent jurisdiction or Purchaser, upon written notice to the other Governmental Entity located or having jurisdiction within party, in the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting event the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time transactions contemplated hereby shall not have occurred on or been consummated before the date which is nine months from the date hereof 31st of December, 2013 (the “Termination Date”); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the primary cause of, or resulted in, the failure of the Effective Time such consummation to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause Date;
(c) after Parent by either the Seller or Merger Sub accepts Shares for payment pursuant the Purchaser, upon written notice to the Offerother party, if any Governmental Authority shall have issued an Order or taken any other action (which the parties shall have used their respective commercially reasonable efforts to resist, resolve or lift, as applicable, in accordance with Section 6.5 hereof) permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such Order shall have become final and non-appealable;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representationPurchaser, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior upon written notice to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has hadSeller, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company Seller contained in this Agreement Agreement, which breach would, individually or in the aggregate together with all such that other than uncured breaches by the Seller, constitute grounds for the conditions set forth in clause (cSection 7.2(a) or (db) of Exhibit A would not to be satisfied and, in either at the Closing Date and such casebreach is not reasonably capable of being cured (i) prior to the Termination Date or (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach shall not have been cured prior to the earlier of (A) 30 thirty (30) days following after the Purchaser has provided to the Seller written notice of such breach to the Company and (B) three (3) Business Days prior to the Termination Date; or
(e) by the Seller, upon written notice provided that Parent to the Purchaser, if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Purchaser contained in this Agreement which breach would, individually or in the aggregate together with all such other than uncured breaches by the Purchaser, constitute grounds for the conditions set forth in Section 7.3(a) or (b) not to be satisfied at the Closing Date and such breach is not reasonably capable of being cured (i) prior to the Termination Date or (ii) if such breach is reasonably capable of being cured prior to the Termination Date, such breach shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant been cured prior to the Offer;
earlier of (fA) by Parent in the event that an Adverse Recommendation Change has occurred;
thirty (g30) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company days after the twentieth Business Day following an Adverse Recommendation Change if (x) Seller has provided to the Majority Tender Condition has not then been satisfied Purchaser written notice of such breach and (yB) Parent has not increased three (3) Business Days prior to the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesTermination Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ixys Corp /De/), Asset Purchase Agreement (Ixys Corp /De/)
Termination. This Agreement may be terminated and the Merger contemplated hereby and the other Transactions may be abandoned at any time prior to the Effective Time, notwithstanding approval by whether before or after the shareholders of the Company:Company Stockholder Approval has been obtained (except as expressly set forth below):
(a) by mutual written consent of the Company and Parent, Merger Sub and the Company;
(b) by Parent or either the Company or Parent:
(i) if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within of the United States or any state thereof having jurisdiction over any party shall have issued a final any order, decree decree, ruling or ruling injunction or taken any other final action permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such order, decree, ruling or injunction or other action is or shall have become final and nonappealable;
(c) by either Parent , or the Company if the Effective Time there shall not have occurred on or before be adopted after the date which is nine months from of this Agreement any Law that permanently makes consummation of the date hereof (the “Termination Date”)Merger illegal or otherwise permanently prohibited; provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(i) shall not be available to any party whose violation or breach of any material covenant or agreement under this Agreement has been the party seeking primary cause of or resulted in the action or event described in this Section 8.1(b)(i) occurring;
(ii) if the Merger shall not have been consummated on or before 5:00 p.m. Mountain time, on July 18, 2019; provided that if on such date the condition to terminate closing set forth in Section 7.1(b) or Section 7.1(c) (if any action the failure of such party condition to be then satisfied is due to an Antitrust Law) shall not have been satisfied but all other conditions to Closing shall have been satisfied (or, or in the case of Parentconditions that by their terms are to be satisfied at the Closing, Merger Sub) shall be capable of being satisfied or waived by all parties entitled to the benefit of such conditions), such date may be extended by Parent or the failure of such party (or, in the case of Parent, Merger Sub) Company from time to perform any of its obligations under this Agreement required to be performed at or prior time by written notice to the Effective Time has been other party up to a date that is no later than October 18, 2019 (the cause of“End Date Extension”, or resulted inand such date, as it may be extended by the End Date Extension, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materiallyEnd Date”); provided, and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has hadhowever, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to under this Section 8.1(d8.1(b)(ii) if the Company is then in material shall not be available to any party whose violation or breach of any of its representations, warranties, covenants material covenant or agreements contained in this Agreement; provided further that agreement under this Agreement may not be terminated pursuant has been the primary cause of or resulted in the failure of the Merger to this Section 8.1(d) after Parent occur on or Merger Sub accepts Shares for payment pursuant to the Offerbefore such date;
(eiii) by Parent if there shall have been in the event of a breach by the other party of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such that which (A) would give rise to the conditions failure of a condition set forth in clause (cSection 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 Date and (dB) of Exhibit A would cannot be satisfied and, in either such case, such breach shall or has not have been cured prior to by the earlier of (Ai) 30 forty-five days following after the giving of written notice to the breaching party of such breach and the basis for such notice, and (ii) two Business Days prior to the Company and End Date (B) a “Terminable Breach”); provided, that the Termination Date; provided that Parent shall terminating party is not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach Terminable Breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant or agreements other agreement contained in this Agreement; provided that this Agreement may or
(iv) if the Company Stockholder Approval shall not be terminated pursuant to this Section 8.1(e) after Parent have been obtained upon a vote held at a duly held Company Stockholders Meeting, or Merger Sub accepts Shares for payment pursuant to the Offerat any adjournment or postponement thereof;
(fc) by Parent in Parent, prior to the event that an Adverse Recommendation time the Company Stockholder Approval is obtained, if the Company Board or any committee thereof shall have effected a Company Change has occurredof Recommendation;
(gd) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or Company, prior to the time the Company after Stockholder Approval is obtained, in accordance with Section 6.3(f)(iii); provided, however, that the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Company shall have contemporaneously with such termination paid or caused to be paid to Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company Termination Fee pursuant to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.Section 8.3(b);
Appears in 2 contracts
Sources: Merger Agreement (Resolute Energy Corp), Merger Agreement (Cimarex Energy Co)
Termination. This Subject to Section 10.2, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by mutual written consent of Parent, Merger Sub the Purchasers or the Company if the Stockholder Meeting is held to consider the transactions contemplated hereby and the Companystockholders fail to approve the Proposal;
(b) by Parent the Purchasers if there has been a material breach of any representation, warranty, covenant or agreement of the Company if contained in this Agreement, which breach is incurable or has not been cured by the Company within 10 days after written notice from the Purchasers; PROVIDED, HOWEVER, that no pending or threatened action, suit, proceeding or investigation questioning the validity of this Agreement or any court action to be taken pursuant hereto or thereto or seeking to enjoin consummation of competent jurisdiction any of the transactions contemplated hereby or other Governmental Entity located or having jurisdiction within thereby, shall give the United States shall have issued a final order, decree or ruling or taken Purchasers any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableright to terminate this Agreement under this Section 10.1
(a) except as set forth in paragraph (f) below;
(c) by either Parent or the Company if there has been a material breach of any representation, warranty, covenant or agreement of the Effective Time Purchasers contained in this Agreement, which breach is incurable or has not been cured by the Purchasers within 10 days after written notice from the Company;
(d) by the Purchasers if the Disclosure Schedules are not in form and substance satisfactory to the Purchasers;
(e) by the Company or the Purchasers, if the Closing shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)December 31, 1997; provided PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant to under this Section 8.1(c10.1(e) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time Closing to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerdate;
(f) by Parent in the event Company or the Purchasers, if any judgment, injunction, order or decree enjoining the Company or the Purchasers from consummating the transactions contemplated by this Agreement is entered and such judgment, injunction, order or decree becomes final and nonappealable; PROVIDED, HOWEVER, that an Adverse Recommendation Change has occurred;the party seeking to terminate this Agreement must use all reasonable efforts to remove such judgment, injunction, order or decree; or
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors mutual written consent of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesPurchasers.
Appears in 2 contracts
Sources: Investment Agreement (Mac Music LLC), Investment Agreement (Sk Palladin Partners Lp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders whether before or after receipt of the CompanyRequisite Discover Vote or the Requisite Capital One Vote:
(a) by mutual written consent of Parent, Merger Sub Capital One and the CompanyDiscover;
(b) by Parent either Capital One or Discover if any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Mergers or the Company if Bank Merger and such denial has become final and nonappealable or any court Governmental Entity of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final and nonappealable order, injunction, decree or ruling other legal restraint or taken any other final action restraining, prohibition permanently enjoining or otherwise prohibiting or making illegal the Merger consummation of the Mergers or the Bank Merger, unless the failure to obtain a Requisite Regulatory Approval shall be due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such order, decree, ruling or other action is or shall have become final and nonappealableparty set forth herein;
(c) by either Parent Capital One or the Company Discover if the Effective Time Merger shall not have occurred been consummated on or before the date which is nine months from the date hereof February 19, 2025 (as it may be extended pursuant to this Section 8.1(c), the “Termination Date”); provided that , unless the right failure of the Closing to terminate this Agreement pursuant occur by such date shall be due to this Section 8.1(c) shall not be available to the failure of the party seeking to terminate if any action this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein; provided, that, if on such date, any of the conditions to the Closing set forth in (or, A) Section 7.1(c) or (B) Section 7.1(e) (in the case of Parentclause (B), Merger Subto the extent related to a Requisite Regulatory Approval) shall not have been satisfied or the failure of waived on or prior to such party date, but all other conditions set forth in Article VII shall have been satisfied or waived (or, or in the case of Parentconditions that by their nature can only be satisfied at the Closing, Merger Sub) shall then be capable of being satisfied if the Closing were to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause oftake place on such date), or resulted in, the failure of the Effective Time to occur on or before then the Termination Date shall be automatically extended to May 19, 2025, and such action or failure to perform constitutes a breach date shall become the Termination Date for purposes of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent either Capital One or Merger Sub shall have breached or failed to perform any representationDiscover (provided, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall terminating party is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representationsrepresentation, warrantieswarranty, covenants obligation, covenant or agreements other agreement contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(dherein) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representationof the obligations, warranty, covenant covenants or agreement agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Discover, in the Company contained case of a termination by Capital One, or Capital One or Merger Sub, in this Agreement the case of a termination by Discover, which breach or failure to be true, either individually or in the aggregate with all other breaches by such that party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the conditions Closing Date, the failure of a condition set forth in clause Section 7.2, in the case of a termination by Capital One, or Section 7.3, in the case of a termination by Discover, and which is not cured within forty-five (c45) days following written notice to Discover, in the case of a termination by Capital One, or (d) Capital One, in the case of Exhibit A would a termination by Discover, or by its nature or timing cannot be satisfied and, in either cured during such case, period (or such breach shall not have been cured fewer days as remain prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date);
(e) by Discover, if (i) Capital One or the Board of Directors of Capital One shall have made a Recommendation Change or (ii) Capital One or the Board of Directors of Capital One shall have breached its obligations under Section 6.3 or 6.13 in any material respect; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change Capital One, if (xi) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit Discover or the Board of Directors of Discover shall have made a Recommendation Change or (ii) Discover or the Company to reinstate the Offer Recommendation and the Merger Recommendation Board of Directors of Discover shall have breached its obligations under Section 6.3 or 6.13 in accordance with its fiduciary dutiesany material respect.
Appears in 2 contracts
Sources: Merger Agreement (Capital One Financial Corp), Merger Agreement (Discover Financial Services)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by the mutual written consent of Parent, Merger Sub Buyer Parties and the CompanySellers;
(b) by Parent the Sellers, if
(i) on the date of this Agreement or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken on any other final action restrainingdate prior to the Closing, enjoining (i) any representation or otherwise prohibiting warranty set forth in Article IV that is not subject to materiality or Material Adverse Effect qualifications is not, or has ceased to be, true and correct in all material respects as though then made and as though such date had been substituted for the Merger date of this Agreement in such representation or warranty, or (ii) any representation or warranty set forth in Article IV that is subject to materiality or Material Adverse Effect qualifications will not be true and correct in all respects at and as of the Closing Date as though then made and as though the Closing Date had been substituted for the date of this Agreement in such orderrepresentations and warranties (in each case, decreewithout taking into account any supplemental disclosures after the date of this Agreement by Buyers); provided, ruling that any representation or other action is or shall warranty expressly made as of a specified date will only need to have become final been true on and nonappealableas of such date;
(cii) any Buyer Party has breached in any material respect any of its agreements contained in this Agreement or in any Ancillary Agreement to which any Buyer Party is a party;
(iii) the transactions contemplated by either Parent or the Company if the Effective Time this Agreement shall not have occurred been consummated on or before prior to (A) July 31, 2007, in the date which is nine months from event that all of the date hereof Pre-Closing Consents shall have been obtained on or prior to the third Business Day prior to July 31, 2007; or (B) December 31, 2007, in the “Termination Date”)event that any of the Pre-Closing Consents shall not have been obtained on or prior to the third Business Day prior to July 31, 2007; provided provided, in each case, that the right Sellers will not be entitled to terminate this Agreement pursuant to this Section 8.1(c9.1(b)(i) shall not be available to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the Seller’s failure of such party (or, in the case of Parent, Merger Sub) to perform any of comply fully with its obligations under this Agreement required and the Ancillary Agreements to which it is a party has prevented the consummation of the transactions contemplated by this Agreement;
(iv) a Law or Governmental Order prohibits the Closing;
(v) any of the conditions set forth in Section 8.2 will have become impossible to satisfy, and has not been waived by the Sellers in writing;
(c) by Buyer Parties, if
(i) on the date of this Agreement or on any other date prior to the Closing, (i) any representation or warranty set forth in Article III that is not subject to materiality or Material Adverse Effect qualifications is not, or has ceased to be, true and correct in all material respects as though then made and as though such date had been substituted for the date of this Agreement in such representation or warranty, or (ii) any representation or warranty set forth in Article III that is subject to materiality or Material Adverse Effect qualifications will not be performed true and correct in all respects at and as of the Closing Date as though then made and as though the Closing Date had been substituted for the date of this Agreement in such representations and warranties (in each case, without taking into account the Closing Update and any other supplemental disclosures after the date of this Agreement by Sellers); provided, that any representation or warranty expressly made as of a specified date will only need to have been true on and as of such date;
(ii) any Seller has breached in any material respect any of its agreements contained in this Agreement or in any Ancillary Agreement to which any Seller is a party;
(iii) the transactions contemplated by this Agreement shall not have been consummated on or prior to (A) July 31, 2007, in the event that all of the Pre-Closing Consents shall have been obtained on or prior to the Effective Time has been third Business Day prior to July 31, 2007; or (B) December 31, 2007, in the cause of, or resulted in, the failure event that any of the Effective Time to occur Pre-Closing Consents shall not have been obtained on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach third Business Day prior to Parent and (B) the Termination Date and (ii) such breach has hadJuly 31, or would reasonably 2007; provided, in each case, that Buyer Parties will not be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right entitled to terminate this Agreement pursuant to this Section 8.1(d9.1(c)(ii) if any Buyer Party’s failure to comply fully with its obligations under this Agreement or any Ancillary Agreement to which it is a party has prevented the Company is then in material breach consummation of any of its representations, warranties, covenants or agreements contained in the transactions contemplated by this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(eiv) by Parent if there shall a Law or Governmental Order would reasonably be expected to result directly or indirectly, in any of the consequences referred to in Section 8.1(e);
(v) Buyer Parties have discovered any fact or circumstance existing as of the date of this Agreement that has not been previously disclosed on the Disclosure Schedule that has had or would reasonably be expected to have a Material Adverse Effect;
(vi) after the date of this Agreement, an event has occurred that has had or would reasonably be expected to have a Material Adverse Event;
(vii) any Seller or any of the Acquired Assets will have been materially adversely affected as a breach result of fire, explosion, disaster, accident, labor dispute, flood, act of war, terrorism, civil disturbance or act of nature;
(viii) UPC has breached any representation, warranty, covenant warranty or agreement on the part of the Company contained in this Agreement such that the UPC Existing Agreements or the UPC Waiver in any material respect; or
(ix) any of the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not Section 8.1 will have been cured prior become impossible to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiessatisfy.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Crested Corp), Asset Purchase Agreement (Us Energy Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding any requisite approval by the shareholders and adoption of the Companythis Agreement, as follows:
(a) by mutual written consent duly authorized by the Boards of Parent, Merger Sub Directors of each of Viacom and the CompanyCBS;
(b) by Parent either Viacom or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderCBS, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)August 31, 2000; provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.01(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and by such action or failure time;
(c) by CBS upon delivery to perform Viacom of written notice that a Competing Proposal constitutes a breach of this AgreementCBS Superior Proposal; and provided further provided, however, that this Agreement may not be terminated such termination pursuant to this clause subsection (c) after Parent or Merger Sub accepts Shares for 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 the OfferSection 8.05;
(d) by the Company either CBS or Viacom, if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect shall fail to any limitation on any representation or warranty indicated by receive the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to requisite vote for adoption at the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferCBS Stockholders' Meeting;
(e) by Parent if there shall have been CBS, upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained Viacom set forth in this Agreement Agreement, or if any representation or warranty of Viacom shall have become untrue, in either case such that the conditions set forth in clause (cSections 7.03(a) or (db) are not capable of Exhibit A would not be being satisfied andon or before August 31, in either such case, such breach shall not have been cured prior to the earlier of 2000 (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offera "Terminating Viacom Breach");
(f) by Parent 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 event that an Adverse Recommendation Change has occurred;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 Parent in either Viacom or CBS, if any Governmental Authority shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the event that a willful transactions contemplated by this Agreement, and material breach of Section 6.4 has occurred; or
(h) by Parent such Order or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied other action shall have become final and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesnonappealable.
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 contemplated hereby Mergers may be abandoned at any time prior to the Blocker Merger Effective Time, notwithstanding approval whether before or after adoption of this Agreement by the shareholders stockholders of the CompanyParent:
(a) by mutual written consent of the Company and Parent, Merger Sub and the Company;
(b) by Parent or either the Company or Parent:
(i) if (A) any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States over any party hereto shall have issued a final any order, decree decree, ruling or ruling injunction or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger consummation of the Mergers and such order, decree, ruling or injunction or other action is or shall have become final and nonappealablenonappealable or if there shall be adopted any law or regulation that makes consummation of the Mergers illegal or otherwise prohibited; provided however, that the right to terminate this Agreement under this Section 8.1(b)(i)(A) shall not 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 Closing, or (B) the Parent Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a vote held at a duly held meeting of the stockholders of Parent, or at any adjournment thereof;
(cii) by either Parent or the Company if the Effective Time Mergers shall not have occurred on or before the date which is nine months from the date hereof been consummated by July 29, 2016 (the “Termination Date”); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(ii) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) Sections 6.1, 6.2 or (d) of Exhibit A would 6.3 hereof are will not be satisfied and, in either such case, such breach shall not have been cured on or prior to the earlier Closing;
(iii) in the event of a breach by the other party of any representation, warranty, covenant or other agreement contained in this Agreement which (A) 30 days following notice of such breach would give rise to the Company 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 earlier of thirty (30) days after the giving of written notice to the breaching party of such breach and the Termination DateDate (a “Terminable Breach”); provided that Parent shall the terminating party is not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach Terminable Breach of any of its representationsrepresentation, warrantieswarranty, covenants covenant or agreements other agreement contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(hc) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of Parent shall have publicly withdrawn, modified or changed, in any manner that is adverse to the Company Company, its approval or recommendation to reinstate the Offer Recommendation stockholders of Parent with respect to any of the Transaction Proposals.
(d) A terminating party shall provide written notice of termination to the other party specifying with particularity the reason for such termination, and the Merger Recommendation any termination, if otherwise in accordance with its fiduciary dutiesthis Agreement, shall be effective immediately upon delivery of such written notice to the other party.
Appears in 2 contracts
Sources: Merger Agreement (Nexeo Solutions Holdings, LLC), Merger Agreement (WL Ross Holding Corp.)
Termination. This Whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company, this Agreement may be terminated terminated:
(a) by mutual consent of Parent and the Merger contemplated hereby may be abandoned Company, by action of their respective boards of directors, at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof close of business on March 31, 2008 (the “Termination Outside Date”); ) (provided that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(b) shall not be available to the any party seeking to terminate if whose breach of any action provision of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed has been the cause of the Effective Time not occurring by the close of business on the Outside Date);
(c) by Parent at or any time prior to the Effective Time has been Date, if (i) the Company shall have breached any of its representations, warranties or obligations hereunder to an extent that would cause of, or resulted in, the failure of the Effective Time conditions set forth in Section 6.2(a) and (b) not to occur on or before the Termination Date be satisfied and such action or failure breach shall not have been cured within thirty (30) Business Days of receipt by the Company of written notice of such breach (provided that the right to perform constitutes a terminate this Agreement by Parent shall not be available to Parent if Parent is at that time in material breach of this Agreement; and provided further that this Agreement may not be terminated pursuant ), (ii) the Company Board shall have withdrawn or modified, or proposed publicly to this clause (c) after withdraw or modify, the Company Board Recommendation in a manner adverse to Parent or Merger Sub accepts Shares for payment pursuant or (iii) the Company Board shall have approved or recommended, or proposed publicly to the Offerapprove or recommend, a Takeover Proposal;
(d) by the Company at any time prior to the Effective Date, if Parent or Merger Sub shall have breached any of its representations, warranties or failed obligations hereunder to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by an extent that the words “representations and warranties of Parent Material Adverse Effect”, “shall not be true and correct in all material respects”, “in any material respect”each case as of the date of this Agreement and as of the Effective Time as though made on such date, “material” or “materially”)except to the extent such representations and warranties are expressly made only as of an earlier date, and in which case as of such earlier date; provided, however, that the Company may not terminate this Agreement pursuant to this Section 7.1(d) if (i) such breach has not shall have been cured prior to the earlier within 30 Business Days following receipt by Parent or Merger Sub of (A) 30 days following written notice of such breach to Parent and (B) the Termination Date and breach, (ii) the cumulative effect of all inaccuracies of such breach has hadrepresentations and warranties (for this purpose disregarding any qualification or limitation as to materiality or Parent Material Adverse Effect), or would and such breaches of obligations, is not reasonably be expected likely to have, individually or in the aggregate, have a Parent Material Adverse Effect, or (iii) the Company is at that time in material breach of this Agreement;
(e) by the Company at any time prior to the Effective Date in order to enter into an agreement relating to a Superior Proposal in accordance with Section 4.3; provided that the Company has complied in all material respects with the provisions of Section 4.3; and provided, further, that prior to or concurrently with such termination, the Company pays the Termination Fee payable pursuant to Section 7.3(b);
(f) by either Parent or the Company if any Governmental Entity issues an order, decree or ruling or takes any other action permanently enjoining, restraining or otherwise prohibiting the Merger (i) as violative of any Antitrust Law or (ii) for any reason other than under any Antitrust Law, and, in either case, such order, decree, ruling or other action shall have become final and non-appealable; and
(g) by either Parent or the Company if, upon a vote at a duly held meeting (or any adjournment thereof) to obtain the Company Stockholder Approval, the Company Stockholder Approval is not have the right obtained. The party desiring to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated 7.1 (other than pursuant to this Section 8.1(d7.1(a)) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following give notice of such breach termination to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesother party.
Appears in 2 contracts
Sources: Merger Agreement (Chaparral Steel CO), Merger Agreement (Gerdau Ameristeel Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to before the Effective Time, notwithstanding whether before or after stockholder approval by the shareholders of the Companythereof:
(a) by mutual written consent duly authorized by the Board of Parent, Merger Sub Directors of Parent and the Board of Directors of the Company;; or
(b) by either Parent or the Company (i) if any a court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final an order, decree or ruling or taken any other final action (including the failure to have taken an action), in each case having the effect of permanently restraining, enjoining or otherwise prohibiting any of the Merger Transactions or (ii) if Purchaser has not accepted and such orderpaid for the Shares pursuant to the Offer by December 31, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof 2003 (the “"Termination Date”"); provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c8.1(b) shall not be available to the any party seeking whose action or failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the principal cause of, or resulted in, the failure of the Effective Time Offer to occur on be consummated by such date; or
(c) by Parent if the Minimum Condition shall not have been satisfied by the Initial Expiration Date (including any extensions thereof); provided, however, that Parent shall not be entitled to terminate this Agreement pursuant to this Section 8.1(c) if it or before the Termination Date Purchaser is in material breach of its representations and warranties, covenants or other agreements under this Agreement and such action breach has been the cause of, or resulted in, such failure to perform constitutes satisfy the Minimum Condition; or
(d) by Parent if (i) prior to the purchase of Shares pursuant to the Offer, there has been a material breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement, which breach is reasonably likely to result in any condition set forth in Annex I not being satisfied and such breach has not been cured or such condition has not been satisfied within thirty (30) days after the receipt of notice thereof or such breach is not reasonably capable of being cured or such condition is not reasonably capable of being satisfied within such period or (ii) due to an occurrence or circumstance that would result in a failure to satisfy any condition set forth in Annex I hereto, Purchaser shall have (x) failed to commence the Offer within sixty (60) days following the date of this Agreement; and provided further that this Agreement may not be terminated pursuant , (y) allowed the Offer to this clause terminate without having accepted any Shares for payment thereunder or (cz) after Parent or Merger Sub accepts failed to accept Shares for payment pursuant to the Offer;Offer prior to the Termination Date, unless such action or inaction under clauses (x), (y) or (z) shall have been principally caused by or resulted from the failure of either of Parent or Purchaser to perform, in any material respect, any of its covenants or agreements contained in this Agreement, or the breach by Parent of any of its representations or warranties contained in this Agreement; or
(de) by Parent, at any time prior to the purchase of the Shares pursuant to the Offer, if (i) the Company if Board of Directors shall have withdrawn, modified, or changed its approval or recommendation in favor of this Agreement or the Offer in a manner adverse to Parent or Merger Sub Purchaser, (ii) the Company Board of Directors or any committee thereof shall have approved or recommended any Acquisition Proposal, (iii) a tender or exchange offer relating to its securities shall have been commenced by a person unaffiliated with Parent and it shall not have sent to its security holders pursuant to Rule 14e-2 promulgated 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 Board of Directors recommends rejection of such tender or exchange offer or (iv) the Company shall have violated or breached in any material respect any of its obligations under Section 5.2, unless there has been a material breach by Parent or failed to perform Purchaser of any representation, warranty, covenant or agreement contained in this Agreement except to the extent such breach, together with all such breaches, does not and would not be likely to have a material adverse effect on Parent's or Purchaser's ability to consummate the Offer or the Merger; or
(without giving effect to any limitation on any representation or warranty indicated f) by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and Company if (i) such breach has not been cured prior to the earlier purchase of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) Offer that would represent a majority of the Shares on a Fully Diluted Basis, there has been a material breach by Parent if there shall have been a breach or Purchaser of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement except to the extent such breach, together with all such breaches, does not and would not be likely to have a material adverse effect on Parent's or Purchaser's ability to consummate the Offer or the Merger (and such breach has not been cured or such condition has not been satisfied within thirty (30) days after the receipt of notice thereof or such breach is not reasonably capable of being cured or such condition is not reasonably capable of being satisfied with such period); or (ii) due to an occurrence or circumstance that the conditions would result in a failure to satisfy any condition set forth in clause Annex I hereto, Purchaser shall have (cx) failed to commence the Offer within sixty (60) days following the date of this Agreement, (y) allowed the Offer to terminate without having accepted any Shares for payment hereunder or (z) failed to accept Shares for payment pursuant to the Offer prior to the Termination Date, unless such action or inaction under clauses (x), (y) or (dz) shall have been principally caused by or resulted from the failure of Exhibit A would not be satisfied andthe Company to perform, in either such caseany material respect, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement, or the material breach by the Company of any of its representations or warranties contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;or
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient pursuant to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesSection 5.2(d).
Appears in 2 contracts
Sources: Merger Agreement (Emulex Corp /De/), Merger Agreement (Vixel Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Parent and the CompanyTarget Companies;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company Target Companies if the Effective Time Mergers shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)been consummated by September 30, 2002; provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c7.01(b) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the whose failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, results in the failure of the Effective Time Mergers to occur on or before the Termination Date and be consummated by such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause time;
(c) after by either Parent or Merger Sub accepts Shares for payment pursuant to the OfferTarget Companies if a court of competent jurisdiction or other Governmental Entity shall have issued a final and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently enjoining or otherwise prohibiting either of the Mergers;
(d) by Parent if (i) any of the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement Target Companies' representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, such that the condition set forth in Section 6.01(a) would not be satisfied, or (without giving effect ii) any of the Target Companies' covenants contained in this Agreement shall have been breached such that the condition set forth in Section 6.01(b) would not be satisfied; provided, however, that if an inaccuracy in any of the Target Companies' representations and warranties as of a date subsequent to any limitation on any representation the date of this Agreement or warranty indicated a breach of a covenant by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to Target Companies is curable by the earlier of (A) 30 Target Companies within 20 days following after notice of such breach and the Target Companies are continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall may not have the right to terminate this Agreement pursuant to under this Section 8.1(d7.01(d) if the Company on account of such inaccuracy or breach unless such breach is then in material breach continuing for a period of any 20 days after notice of its representations, warranties, covenants or agreements contained in this Agreementsuch breach; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(e) by Parent the Target Companies if there (i) any of Parent's representations and warranties contained in this Agreement shall have been a breach of any representation, warranty, covenant or agreement on the part be inaccurate as of the Company contained in date of this Agreement such that the conditions condition set forth in clause (cSection 6.02(a) or (d) of Exhibit A would not be satisfied andsatisfied, or (ii) if any of Parent's covenants contained in either such case, such breach this Agreement shall not have been cured prior breached such that the condition set forth in Section 6.02(b) would not be satisfied; provided, however, that if an inaccuracy in any of Parent's representations and warranties as of a date subsequent to the earlier date of (A) 30 this Agreement or a breach of a covenant by Parent is curable by Parent within 20 days following after notice of such breach and Parent is continuing to the Company and (B) the Termination Date; provided that Parent shall not have the right exercise all reasonable efforts to terminate this Agreement pursuant to this Section 8.1(e) if Parent cure such inaccuracy or Merger Sub is then in material breach of any of its representationsbreach, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.then
Appears in 2 contracts
Sources: Merger Agreement (Urs Corp /New/), Merger Agreement (Tc Group LLC)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding any requisite approval by the shareholders and adoption of the Companythis Agreement, as follows:
(a) by mutual written consent duly authorized by the Boards of Parent, Merger Sub Directors of each of Viacom and the CompanyCBS;
(b) by Parent either Viacom or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderCBS, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)August 31, 2000; provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.01(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and by such action or failure time;
(c) by CBS upon delivery to perform Viacom of written notice that a Competing Proposal constitutes a breach of this AgreementCBS Superior Proposal; and provided further provided, however, that this Agreement may not be terminated such termination pursuant to this clause subsection (c) after Parent or Merger Sub accepts Shares for 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 the OfferSection 8.05;
(d) by the Company either CBS or Viacom, if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect shall fail to any limitation on any representation or warranty indicated by receive the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to requisite vote for adoption at the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferCBS Stockholders' Meeting;
(e) by Parent if there shall have been CBS, upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained Viacom set forth in this Agreement Agreement, or if any representation or warranty of Viacom shall have become untrue, in either case such that the conditions set forth in clause (cSection 7.03(a) or (db) are not capable of Exhibit A would not be being satisfied andon or before August 31, in either such case, such breach shall not have been cured prior to the earlier of 2000 (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offera "Terminating Viacom Breach");
(f) by Parent 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 event that an Adverse Recommendation Change has occurred;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 Parent in either Viacom or CBS, if any Governmental Authority shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the event that a willful transactions contemplated by this Agreement, and material breach of Section 6.4 has occurred; or
(h) by Parent such Order or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied other action shall have become final and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesnonappealable.
Appears in 2 contracts
Sources: Merger Agreement (Viacom Inc), Merger Agreement (CBS Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the First Effective Time, notwithstanding approval by whether before or after the shareholders receipt of the CompanyKimberly-Clark Stockholder Approval or the Kenvue Stockholder Approval, as follows:
(a) by mutual written consent of Parent, Merger Sub Kimberly-Clark and the CompanyKenvue;
(b) by Parent either Kimberly-Clark or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;Kenvue:
(ci) by either Parent or the Company if the Effective Time shall First Merger is not have occurred consummated on or before the date which is nine months from the date hereof November 2, 2026 (the “Termination Outside Date”); provided that, if the Closing shall not have occurred by the Outside Date but on that date any of the conditions set forth in Section 8.01(c) or Section 8.01(d) (solely as it relates to any Antitrust Laws or Foreign Investment Laws or Legal Restraints thereunder) shall not be satisfied or waived but all other conditions shall have been satisfied or waived (other than those that by their terms are to be fulfilled at the Closing; provided that each such condition would be capable of being fulfilled if the Closing were to occur on such date), then the Outside Date shall automatically, without any action on the part of the parties, be extended to May 3, 2027, and such date shall be the “Outside Date” for purposes of this Agreement; provided, further, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.01(b)(i) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time First Merger to occur on or before the Termination Outside Date and such action or failure to perform constitutes is a proximate result of a breach of this AgreementAgreement by such party (including, in the case of Kimberly-Clark, First Merger Sub or Second Merger Sub);
(ii) if the condition set forth in Section 8.01(d) (No Legal Restraints) is not satisfied and the Legal Restraint giving rise to such non-satisfaction shall have become final and non-appealable; and provided further provided, however, that the right to terminate this Agreement may under this Section 9.01(b)(ii) shall not be terminated pursuant available to any party if such non-satisfaction or Legal Restraint is a proximate result of a breach of this clause Agreement by such party (including, in the case of Kimberly-Clark, First Merger Sub or Second Merger Sub);
(iii) if the Kenvue Stockholder Approval is not obtained at the Kenvue Stockholders Meeting duly convened (unless such Kenvue Stockholders Meeting has been postponed or adjourned, in which case at the final postponement or adjournment thereof); or
(iv) if the Kimberly-Clark Stockholder Approval is not obtained at the Kimberly-Clark Stockholders Meeting duly convened (unless such Kimberly-Clark Stockholders Meeting has been postponed or adjourned, in which case at the final postponement or adjournment thereof);
(c) after Parent by Kimberly-Clark, if Kenvue breaches or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed fails to perform any representation, warranty, covenant of its covenants or agreement agreements contained in this Agreement (without giving effect Agreement, or if any of the representations or warranties of Kenvue contained herein fails to any limitation on any representation be true and correct, which breach or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and failure (i) such breach has not been cured prior would give rise to the earlier failure of a condition set forth in Section 8.03(a) (ARepresentations and Warranties of Kenvue) 30 or Section 8.03(b) (Performance of Obligations of Kenvue) and (ii) is not reasonably capable of being cured by the Outside Date or, if reasonably capable of being so cured, is not cured by Kenvue within 45 days following after receiving written notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectfrom Kimberly-Clark; provided that the Company Kimberly-Clark shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.01(c) if the Company a Kimberly-Clark Party is then in material breach of any of its representations, warranties, covenants obligations or agreements contained in this Agreement; provided further that under this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been in a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement manner such that the conditions a condition set forth in clause Section 8.02(a) (cRepresentations and Warranties of the Kimberly-Clark Parties) or Section 8.02(b) (dPerformance of Obligations of the Kimberly-Clark Parties) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offersatisfied;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 2 contracts
Sources: Merger Agreement (Kimberly Clark Corp), Merger Agreement (Kenvue Inc.)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be and by the other Transaction Documents abandoned at any time prior to the Effective Time, notwithstanding approval Closing (i) by the shareholders of the Company:
(a) by mutual written consent of ParentUnited and Liberty, Merger Sub (ii) by Liberty if United shall not have obtained the Exchange Ratio Fairness Opinion and the Company;
Indenture Fairness Opinion on or before December 15, 2001, or (b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(ciii) by either Parent United or Liberty by giving written notice of termination to the Company other if the Effective Time Closing shall not have occurred on or before February 28, 2002; provided, however, that (A) if the United Stockholders Meeting has not been held on or before February 28, 2002, but (1) the United Stockholders Meeting is scheduled to occur on or before March 29, 2002 and (2) the Proxy Statement was mailed to United's Stockholders on or before February 14, 2002, then such date which shall be extended to ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) if the Closing has not occurred solely because a "Default" or "Event of Default" within the meaning of the Senior Secured Indenture shall have occurred and be continuing (other than any "Event of Default" within the meaning of Sections 6.1(a), 6.1(b), 6.1(e) or 6.1(h) of the Senior Secured Indenture) and, as a result of the continuance of such "Default" or "Event of Default," the condition to closing set forth in Section 11.1 (insofar as it relates to Section 6.1(c)(ii)(z)) shall not have been satisfied, such "Default" or "Event of Default" is nine months of a type that is amenable to cure without violation of the terms of this Agreement and United is, and has been since becoming aware of such "Default" or "Event of Default," vigorously pursuing the cure of such "Default" or "Event of Default," such date shall be extended once to the earliest of (1) April 13, 2002 and (2) 14 days from the date hereof that, but for the occurrence or continuance of such "Default" or "Event of Default," all of the conditions to Closing (except for the “Termination Date”)delivery of consideration, instruments, certificates and opinions to be delivered at the Closing) were or could have been satisfied, and (C) if the Closing shall not have occurred on or before February 28, 2002 solely because an "Acceleration Notice" has been given (and not rescinded) pursuant to Section 6.2 of the Senior Secured Indenture, and as a result the condition to Closing set forth in Section 11.9 has not been satisfied, but United is vigorously contesting such Acceleration Notice in an appropriate legal forum in good faith, then such date shall be extended to the earliest of (1) April 29, 2002, (2) such date that United is no longer vigorously contesting such Acceleration Notice in an appropriate legal forum in good faith and (3) such date that such Acceleration Notice is rescinded; provided further, however, that the right to terminate this Agreement pursuant to this Section 8.1(cunder clause (iii) shall not be available to United, on the party seeking one hand, or Liberty, on the other hand, if the failure of the Closing to terminate if occur prior to such date was a result of, in the case of United, any action breach by United or any of such party (its Affiliates or, in the case of ParentLiberty, Merger Sub) any breach by any Liberty Party or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause ofAffiliates, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its the representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent Person contained herein or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesother Transaction Documents.
Appears in 2 contracts
Sources: Agreement and Plan of Restructuring and Merger (Liberty Media Corp /De/), Agreement and Plan of Restructuring and Merger (New Unitedglobalcom Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by whether before or (except in the shareholders case of Section 8.1(f) or Section 8.1(g)) after receipt of the CompanyRequisite Viking Vote or the Requisite Camber Vote:
(a) by mutual written consent of Parent, Merger Sub Viking and the CompanyCamber;
(b) by Parent either Viking or Camber if (i) any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Company if Merger and such denial has become final and nonappealable or (ii) any court or Governmental Entity of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final and nonappealable order, injunction or decree or other legal restraint or prohibition permanently enjoining or preventing the consummation of the Merger, unless the failure to obtain a Requisite Regulatory Approval or the issuance of such order, injunction, decree or ruling other legal restraint, as applicable, shall be principally due to the failure of the party seeking to terminate this Agreement to perform or taken any other final action restrainingobserve the obligations, enjoining or otherwise prohibiting the Merger covenants and agreements of such order, decree, ruling or other action is or shall have become final and nonappealableparty set forth herein;
(c) by either Parent Viking or the Company Camber if the Effective Time Merger shall not have occurred been consummated on or before June 30, 2020, provided that Camber or Viking shall have the right to extend such date which from time to time, until up to December 31, 2020, in the event that Camber has not fully resolved SEC comments on the S-4 or other SEC filings related to the Merger, and Camber is nine months from the date hereof responding to such comments in a reasonable fashion (as extended, the “Termination Date”); provided that , unless the right failure of the Closing to terminate this Agreement pursuant occur by such date shall be principally due to this Section 8.1(c) shall not be available to the failure of the party seeking to terminate if any action this Agreement to perform or observe the obligations, covenants and agreements of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerset forth herein;
(d) by the Company if Parent either Viking or Merger Sub shall have breached or failed to perform any representationCamber (provided, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall terminating party is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representationsobligation, warranties, covenants covenant or agreements other agreement contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(dherein) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representationof the obligations, warranty, covenant covenants or agreement agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Camber, in the Company contained case of a termination by Viking, or Viking, in this Agreement the case of a termination by Camber, which breach or failure to be true, either individually or in the aggregate with all other breaches by such that party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the conditions Closing Date, the failure of a condition set forth in clause Section 7.2, in the case of a termination by Viking, or Section 7.3, in the case of a termination by Camber, and which is not cured within thirty (c30) days (or (dsuch fewer days as remain prior to the Termination Date) following written notice to Camber, in the case of Exhibit A would a termination by Viking, or Viking, in the case of a termination by Camber, or by its nature or timing cannot be satisfied and, in cured during such period (or such fewer days as remain prior to the Termination Date);
(e) by either such case, such breach Viking or Camber if (i) the Requisite Viking Vote shall not have been cured prior obtained following a vote taken at the Viking Meeting (unless such Viking Meeting has been validly adjourned or postponed, or validly requested by Camber to be adjourned or postponed, in accordance with Section 6.3, in which case at the earlier final adjournment or postponement thereof) upon the adoption of this Agreement by the stockholders of Viking or (A) 30 days following notice of such breach to the Company and (Bii) the Termination Date; provided that Parent Requisite Camber Vote shall not have been obtained following a vote taken at the right Camber Meeting (unless such Camber Meeting has been validly adjourned or postponed, or validly requested by Viking to terminate this Agreement pursuant to this be adjourned or postponed, in accordance with Section 8.1(e6.3, in which case at the final adjournment or postponement thereof) if Parent or Merger Sub is then in material breach upon the approval of any the Share Issuance by the stockholders of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferViking;
(f) by Parent in Camber, at any time prior to obtaining the event that an Adverse Requisite Viking Vote, if (i) Viking or the Board of Directors of Viking shall have made a Recommendation Change or (ii) there has occurred;been a Willful Breach (defined below) by Viking (including by the Board of Directors of Viking) of its obligations under Sections 6.3 or 6.13(a); or
(g) by Parent in Viking, at any time prior to obtaining the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change Requisite Camber Vote, if (xi) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit Camber or the Board of Directors of Camber shall have made a Recommendation Change or (ii) there has been a Willful Breach by Camber (including by the Company to reinstate the Offer Recommendation and the Merger Recommendation Board of Directors of Camber) of its obligations under Sections 6.3 or 6.13(a) in accordance with its fiduciary dutiesany material respect.
Appears in 2 contracts
Sources: Merger Agreement (Camber Energy, Inc.), Merger Agreement (Camber Energy, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Second Merger Effective Time, notwithstanding approval by whether before or after obtaining the shareholders of Required Marigold Vote or the CompanyRequired Montage Vote:
(a) by mutual written consent of Parent, Merger Sub Marigold and the CompanyMontage in a written instrument;
(b) by Parent either Marigold or the Company Montage if any U.S. federal or state court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, and nonappealable Order permanently enjoining or otherwise prohibiting either of the Merger and such orderMergers, decree, ruling or other action is or provided that the party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have become final and nonappealablecomplied with its obligations pursuant to Section 6.3 with respect to such Order;
(c) by either Parent Marigold or the Company Montage if the Effective Time Mergers shall not have occurred been consummated on or before the date which is nine months from the date hereof September 7, 2016 (the “Termination Initial Outside Date”); provided provided, that if on the Initial Outside Date any of the conditions set forth in Section 7.1(a)(i) or (a)(ii) shall not have been satisfied but all other conditions set forth in Article VII shall have been satisfied or waived or shall then be capable of being satisfied, then the Initial Outside Date shall be automatically extended to December 6, 2016; and provided, further, that if the Marketing Period has not ended by the last Business Day immediately prior to the Outside Date, then the Outside Date shall be automatically extended without any action by the parties to the fifth (5th) Business Day following the final day of the Marketing Period. As used in this Agreement, the term “Outside Date” shall mean the Initial Outside Date, unless extended pursuant to the foregoing sentence, in which case, the term “Outside Date” shall mean such date to which the Initial Outside Date has been so extended. Notwithstanding the foregoing, the right to terminate this Agreement pursuant to under this Section 8.1(c) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time Closing to occur on or before by such date shall be due to the Termination Date and failure of the such action or failure party to perform constitutes a breach of this Agreement; or observe the covenants and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice agreements of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained party set forth in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 2 contracts
Sources: Merger Agreement (Media General Inc), Merger Agreement (Meredith Corp)
Termination. This Notwithstanding the cases of extension foreseen in the last paragraph of Sections 4.3.1. and 4.4 above, and in the antepenultimate paragraph of Section Six above, this Framework Agreement may be terminated and the Merger contemplated hereby may be abandoned at shall become void in any time prior to the Effective Time, notwithstanding approval by the shareholders of the Companyfollowing cases:
(ai) by mutual written consent on 31st December 2008 or, if appropriate, on expiration of Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right to terminate this Agreement relevant renewal pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent 4.3.1 in the event that an Adverse Recommendation Change has occurred;one of the Parties had notified the other Party in writing with, at least, two months in advance prior written notice, its intention to terminate the Framework Agreement. In absence of the relevant prior written notice, the Framework Agreement shall be deemed automatically and successively renewed for additional periods of one year, or
(gii) by Parent at the option of TELEFÓNICA in the event that of a willful and material breach Change in Control taking place in TERRA (on the terms foreseen in the last two paragraphs of this Section). Termination of the Framework Agreement in the cases foreseen in this Section 6.4 has occurred; or
Seven shall not give rise to any kind of liability between the Parties being demanded, notwithstanding those arising strictly from the actual performance of the Framework Agreement prior to the date of termination. A Change in Control of TERRA shall be understood to be any event or situation except for (h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (xi) the Majority Tender Condition has not then been satisfied transfer by TELEFÓNICA of all or part of its participation in TERRA or (ii) an act or agreement of TELEFÓNICA with a third party which leads to a Change of Control that entitles a shareholder other than TELEFÓNICA to direct the management and administration of that company directly or indirectly, as the holder of the majority voting rights or by virtue of agreements entered into with other shareholders. FREE TRANSLATION FROM SPANISH ORIGINAL If there is a Change in Control of TERRA, if TELEFÓNICA were to opt to terminate this Framework Agreement, it will have the term of one month from the date on which this took place to notify TERRA that the Framework Agreement shall terminate, and it shall cease to be effective on the sixtieth calendar day from the date on which that Change of Control of TERRA took place. All the Contracts and Subsequent Contracts shall also terminate on that date. Likewise, should the Change of Control take place before 27 October 2005 and TELEFÓNICA chooses to terminate the present Framework Agreement, TELEFÓNICA must acquire products and services from TERRA during each quarter included between the termination date foreseen in Section 3.3 ii and 26 October 2005, in the following terms: (i) US$ 50 MM for each quarter the first year, (ii) US$ 56.25 MM for each quarter the second year and (yiii) Parent has not increased US$ 62.5 MM for each quarter the Offer Price third year. Said amounts will be reduced by the equivalent revenues to the possible non-compensated excess values referred to in Clause Section (z) and shall be paid as an amount sufficient to permit advanced payment in the Board ten first days of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutieseach quarter [***].
Appears in 2 contracts
Sources: Strategic Alliance Framework Agreement (Telefonica S A), Strategic Alliance Framework Agreement (Terra Networks Sa)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) Subject to Clauses 5(e) and 5(f) below and without prejudice to Clause 6(b), either Party shall be entitled to terminate this Licence for material breach of contract by mutual the other Party which is not remedied within 60 days of a written consent of Parent, Merger Sub and request to remedy the Company;same.
(b) by Parent Licensor may terminate this Licence on 15 days' written notice if Licensee ceases:
(i) to provide for a period of 45 consecutive days (other than as a result of an event or circumstance beyond Licensee's reasonable control) services substantially equivalent to the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within Services in the United States Kingdom under the "Sky News" brand; or
(ii) to operate the "Sky News" channel in the United Kingdom (other than as a result of an event or circumstance beyond Licensee's reasonable control), (for the avoidance of doubt, nothing in this Sub-Clause 5(b) shall have issued give Licensor a final orderright to terminate this Licence if Licensee, decree or ruling or taken in addition to providing the Services, provides any other final action restraining, enjoining or otherwise prohibiting services in the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;United Kingdom which are not branded with any of the Trade Marks).
(c) by either Parent or the Company if the Effective Time Either Party shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right only be entitled 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, in the case of Parent, Merger SubLicence under Clause 5(a) or 5(b) where such Party has obtained the failure prior written consent of the Secretary of State for Digital, Culture, Media and Sport, such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required written consent not 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 action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;unreasonably withheld.
(d) by the Company if Parent If a Party receives a written request or Merger Sub shall have breached notice pursuant to Clause 5(a) or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), 5(b) and either: (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided Party disputes that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company it is then in material breach of any contract or that the other Party has a right to terminate; or (ii) where relevant, the Parties are in dispute as to whether or not such material breach of its representationscontract was remedied within the said 60 days (each a Termination Dispute), warranties, covenants this Licence shall remain in full force and effect until such Termination Dispute has either been resolved by the agreement of the Parties or agreements contained finally determined by the courts of England in favour of the Party seeking to terminate this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;Licence.
(e) by Parent if there shall have been a breach In the event of any representationTermination Dispute arising, warrantybefore commencing action in the courts of England to determine that Termination Dispute, covenant such Termination Dispute shall, at the written request of either Party, be referred to mediation. Any reference to mediation shall be made in accordance with the procedures of the Centre for Alternative Dispute Resolution in London. The mediation will be conducted by a single mediator appointed by the agreement of the Parties or agreement if the Parties cannot agree on the part mediator within 21 days of the Company contained in this Agreement such date of the request that the conditions set forth Termination Dispute be referred to mediation, or if the agreed person is unable or unwilling to act, the mediator shall be appointed by the Centre for Alternative Dispute Resolution in clause (c) or (d) London on the application of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) Party. If the Termination Date; provided that Parent shall Dispute has not been resolved through mediation within 10 days of the first day of the mediation, either Party may bring action in the courts of England to have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;Termination Dispute resolved.
(f) by Parent Where Licensor seeks to terminate this Licence pursuant to Clause 5(a) or 5(b) Licensor shall bear the reasonable costs of the mediation and the reasonable costs of any action in the event that an Adverse Recommendation Change has occurred;English courts to determine such Termination Dispute, including all reasonable out of pocket costs incurred by Licensee in connection with participating in such mediation or defending any such action in the English courts.
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors Any sub-license of the Company rights granted under this Licence entered into pursuant to reinstate Clause 3(m) herein shall automatically terminate upon the Offer Recommendation and the Merger Recommendation termination of this Licence in accordance with its fiduciary dutiesthe terms of this Licence.
Appears in 2 contracts
Sources: Licensing Agreement, License Agreement
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeClosing Date, notwithstanding whether before or after approval by the shareholders of the Companyrespective parties hereto contemplated by this Agreement:
(a) by mutual written consent of Parent, Merger Sub the Boards of Directors of DRI and the CompanyCNG;
(b) by Parent DRI or CNG, by written notice to the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderother, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before January 31, 2000; provided, however, that such date shall automatically be extended to July 31, 2000 if, on January 31, 2000: (i) the date which is nine months from condition set forth in Section 8.1(f) has not been satisfied or waived; (ii) the date hereof other conditions to the consummation of the transactions contemplated hereby are then capable of being satisfied; and (the “Termination Date”)iii) any approvals required by Section 8.1(f) that have not yet been obtained are being pursued with diligence; provided further, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause termination date;
(c) after Parent by DRI or Merger Sub accepts Shares for payment pursuant CNG, by written notice to the Offerother party, if the DRI Shareholders' Approval shall not have been obtained at a duly held DRI Special Meeting, including any adjournments thereof, or the CNG Shareholders' Approval shall not have been obtained at a duly held CNG Special Meeting, including any adjournments thereof;
(d) by DRI or CNG, if any state or federal law, order, rule or regulation is adopted or issued, that has the Company if Parent or Merger Sub shall have breached or failed to perform any representationeffect, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated as supported by the words “Parent written, reasoned opinion of outside counsel for such party, of prohibiting the Merger or causing a DRI Material Adverse Effect or CNG Material Adverse Effect”, “or if any court of competent jurisdiction in all material respects”the United States or any State shall have issued an order, “in any material respect”judgment or decree permanently restraining, “material” enjoining or “materially”)otherwise prohibiting the Merger or causing a DRI Material Adverse Effect or CNG Material Adverse Effect, and such order, judgment or decree shall have become final and nonappealable;
(e) by CNG, upon two (2) days' prior notice to DRI, if, as a result of a tender offer by a party other than DRI or any of its affiliates or any written offer or proposal with respect to a merger, sale of a material portion of its assets or other business combination (each, a "Business Combination") by a party other than DRI or any of its affiliates, the Board of Directors of CNG determines in good faith that the fiduciary obligations of such directors under applicable law require that such tender offer or other written offer or proposal be accepted; provided, however, that (i) such breach has not been cured prior to the earlier of (A) 30 days following notice the Board of such breach Directors of CNG has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group proposing the Business Combination will have adequate sources of financing to Parent consummate the Business Combination and that the Business Combination is more favorable to CNG's shareholders than the Merger and (B) the Termination Date Board of Directors of CNG shall have been advised in a written, reasoned opinion by outside counsel that, notwithstanding a binding commitment to consummate an agreement of the nature of this Agreement entered into in the proper exercise of their applicable fiduciary duties, and notwithstanding all concessions that may be offered by DRI in negotiations entered into pursuant to clause (ii) below, such fiduciary duties would also require the directors to reconsider such commitment as a result of such tender offer or such written offer or proposal and (ii) prior to any such breach termination, CNG shall, and shall cause its respective financial and legal advisors to, negotiate with DRI to make such adjustments in the terms and conditions of this Agreement as would enable CNG to proceed with the transactions contemplated herein; provided further, that DRI and CNG acknowledge and affirm that, notwithstanding anything in this Section 9.1(e) to the contrary, DRI and CNG intend this Agreement to be an exclusive agreement and, accordingly, nothing in this Agreement is intended to constitute a solicitation of an offer or proposal for a Business Combination, it being acknowledged and agreed that any such offer or proposal would interfere with the strategic advantages and benefits that DRI and CNG expect to derive from the Merger and other transactions contemplated hereby;
(f) by DRI, upon two (2) days' prior notice to CNG, if, as a result of a tender offer by a party other than CNG or any of its affiliates or any written offer or proposal with respect to a Business Combination by a party other than CNG or any of its affiliates, the Board of Directors of DRI determines in good faith that the fiduciary obligations of such directors under applicable law require that such tender offer or other written offer or proposal be accepted; provided, however, that (i) (A) the Board of Directors of DRI has hadreasonably concluded in good faith (after consultation with its financial advisors) that the person or group proposing the Business Combination will have adequate sources of financing to consummate the Business Combination and that the Business Combination is more favorable to DRI's shareholders than the Merger and (B) the Board of Directors of DRI shall have been advised in a written, reasoned opinion by outside counsel that, notwithstanding a binding commitment to consummate an agreement of the nature of this Agreement entered into in the proper exercise of their applicable fiduciary duties, and notwithstanding all concessions that may be offered by CNG in negotiations entered into pursuant to clause (ii) below, such fiduciary duties would also require the directors to reconsider such commitment as a result of such tender offer or such written offer or proposal and (ii) prior to any such termination, DRI shall, and shall cause its respective financial and legal advisors to, negotiate with CNG to make such adjustments in the terms and conditions of this Agreement as would reasonably enable DRI to proceed with the transactions contemplated herein; provided further, that DRI and CNG acknowledge and affirm that, notwithstanding anything in this Section 9.1(f) to the contrary, DRI and CNG intend this Agreement to be expected an exclusive agreement and, accordingly, nothing in this Agreement is intended to haveconstitute a solicitation of an offer or proposal for a Business Combination, it being acknowledged and agreed that any such offer or proposal would interfere with the strategic advantages and benefits that DRI and CNG expect to derive from the Merger and other transactions contemplated hereby;
(g) by CNG, by written notice to DRI, if (i) there exist breaches of the representations and warranties of DRI made herein as of the date hereof which breaches, individually or in the aggregate, would or would be reasonably likely to result in a Parent DRI Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement and such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach breaches shall not have been cured prior remedied within twenty (20) days after receipt by DRI of notice in writing from CNG, specifying the nature of such breaches and requesting that they be remedied, (ii) DRI (and/or its appropriate subsidiaries) shall not have in all material respects performed and complied with its agreements and covenants contained in Section 6.2 (Dividends), Section 6.3 (Issuance of Securities) and Section 6.7 (Indebtedness) or shall have failed to perform and comply with, in all material respects, its other agreements and covenants hereunder and such failure to perform or comply with shall not have been remedied within twenty (20) days after receipt by DRI of a notice in writing from CNG, specifying the earlier nature of such failure and requesting that it be remedied; or (iii) the Board of Directors of DRI or any committee thereof (A) 30 days following notice shall withdraw or modify in any manner adverse to CNG its approval or recommendation of such breach to this Agreement or the Company and Merger, (B) the Termination Date; provided that Parent shall not have the right fail to terminate this Agreement pursuant to this Section 8.1(ereaffirm such approval or recommendation upon CNG's request, (C) if Parent shall approve or Merger Sub is then recommend any acquisition of DRI or a material portion of DRI's assets or any tender offer for shares of capital stock of DRI, in material breach of each case, by a party other than CNG or any of its representationsaffiliates or (D) shall resolve to take any of the actions specified in clause (A), warranties, covenants (B) or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; orC).
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change DRI, by written notice to CNG, if (xi) there exist breaches of the Majority Tender Condition has representations and warranties of CNG made herein as of the date hereof which breaches, individually or in the aggregate, would or would be reasonably likely to result in a CNG Material Adverse Effect, and such breaches shall not then have been satisfied remedied within twenty (20) days after receipt by CNG of notice in writing from DRI, specifying the nature of such breaches and requesting that they be remedied, (yii) Parent has CNG (and/or its appropriate subsidiaries) shall not increased have in all material respects performed and complied with its agreements and covenants contained in Section 6.2 (Dividends), Section 6.3 (Issuance of Securities) and Section 6.7 (Indebtedness) or shall have failed to perform and comply with, in all material respects, its other agreements and covenants hereunder and such failure to perform or comply with shall not have been remedied within twenty (20) days after receipt by CNG of a notice in writing from DRI, specifying the Offer Price in an amount sufficient to permit nature of such failure and requesting that it be remedied; or (iii) the Board of Directors of CNG or any committee thereof (A) shall withdraw or modify in any manner adverse to DRI its approval or recommendation of this Agreement or the Company Merger, (B) shall fail to reinstate reaffirm such approval or recommendation upon DRI's request, (C) shall approve or recommend any acquisition of CNG or a material portion of CNG's assets or any tender offer for shares of capital stock of CNG, in each case, by a party other than DRI or any of its affiliates or (D) shall resolve to take any of the Offer Recommendation and the Merger Recommendation actions specified in accordance with its fiduciary dutiesclause (A), (B) or (C).
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Natural Gas Co), Merger Agreement (Dominion Resources Inc /Va/)
Termination. This Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by whether before or after the shareholders of the CompanyCompany Stockholder Approval is obtained (except as otherwise expressly noted), as follows:
(a) by mutual written consent of Parent, Merger Sub each of Parent and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if Company, if:
(i) the Effective Time Merger shall not have occurred been consummated on or before 5:00 p.m. (Chicago, Illinois, United States time) on the twelve (12)-month anniversary of the date which is nine months from the date hereof of this Agreement (the “Termination Date”); provided that if, on the Termination Date, any of the conditions to Closing set forth in Section 6.1(d) or Section 6.1(e) (if the Restraint is in respect of an Antitrust Law) shall not have been satisfied, but all other conditions set forth in Section 6.1 through Section 6.3 shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Effective Time (if such conditions are capable of being satisfied were the Closing to occur at such time)), the Termination Date shall automatically, without any action on the part of the parties hereto, be extended for three (3) months, and such date as so extended shall be the “Termination Date” for all purposes hereunder; provided, further, that the right to terminate this Agreement pursuant to this Section 8.1(c7.1(b)(i) shall not be available to the any party seeking to terminate if any action of a material breach by such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the principal cause of, of or principally resulted in, in the failure of the Effective Time Closing to occur have occurred on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferDate;
(dii) prior to the Effective Time, any Restraint shall have been enacted or promulgated after the date of this Agreement that has the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, and in the case of a Restraint that is an Order, such Order shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a party if 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 Restraint; 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 if:
(i) Parent or Merger Sub shall have breached or failed to perform any representationof their respective representations, warrantywarranties, covenant covenants or agreement contained other agreements set forth in this Agreement Agreement, which breach or failure to perform (without giving effect to any limitation on any representation A) would result in the failure of a condition set forth in Section 6.3(a) or warranty indicated Section 6.3(b) and (B) is not capable of being cured by Parent or Merger Sub, as applicable, by the words “Parent Material Adverse Effect”Termination Date or, “in all material respects”if capable of being cured, “in any material respect”, “material” or “materially”), and (i) such breach has shall not have been cured prior to by Parent or Merger Sub on or before the earlier of (A) 30 days following notice of such breach to Parent and (Bx) the Termination Date and (iiy) the date that is thirty (30) calendar days following the Company’s delivery of written notice to Parent of such breach has hador failure to perform; provided, or would reasonably be expected to havehowever, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d7.1(c)(i) if the Company is then in material breach of any of its obligations under this Agreement so as to result in the failure of a condition set forth in Section 6.2(b); or
(ii) at any time prior to receipt of the Company Stockholder Approval, in order for the Company to enter into a definitive agreement with respect to a 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 substantially concurrently with such termination, the Company pays or causes to be paid to Merger Sub (or a United States Affiliate of Merger Sub as Merger Sub may designate) the Termination Amount; or
(d) by Parent if:
(i) the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained set forth in this Agreement; provided further that this Agreement may not be terminated pursuant , which breach or failure to this Section 8.1(dperform (A) after Parent or Merger Sub accepts Shares for payment pursuant to would result in the Offer;
(e) by Parent if there shall have been failure of a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions condition set forth in clause (cSection 6.2(a) or Section 6.2(b) and (dB) is not capable of Exhibit A would not be satisfied andbeing cured by the Company by the Termination Date or, in either such caseif capable of being cured, such breach shall not have been cured prior to by the Company on or before the earlier of (Ax) 30 the Termination Date and (y) the date that is thirty (30) calendar days following Parent’s delivery of written notice to the Company of such breach or failure to the Company and (B) the Termination Dateperform; provided provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e7.1(d)(i) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that obligations under this Agreement may not be terminated pursuant so as to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent result in the event that an Adverse Recommendation Change has occurred;
(g) by Parent failure of a condition set forth in the event that a willful and material breach of Section 6.4 has occurred6.3(b); or
(hii) by Parent at any time prior to the receipt of the Company Stockholder Approval, (A) the Company Board shall have made an Adverse Recommendation Change, (B) the Company or 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 (I) materially violated or breached any of its obligations under Section 5.6(a), (II) failed to publicly reaffirm the Company Recommendation within ten (10) Business Days of receipt of a written request by Parent to provide such reaffirmation following receipt by the Company of an Acquisition Proposal that is publicly announced and not publicly withdrawn (which request by Parent may only be given once with respect to each such Acquisition Proposal; provided that Parent may make another written request to which this clause (II) shall apply in the event of any publicly disclosed change to the price or other material terms of such Acquisition Proposal) or (III) failed to recommend against any Acquisition Proposal that is a tender or exchange offer subject to Regulation 14D under the 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 twentieth Business Day following an Adverse Recommendation Change if commencement (xwithin the meaning of Rule 14d-2 under the Exchange Act) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiessuch tender or exchange offer.
Appears in 2 contracts
Sources: Merger Agreement (AZEK Co Inc.), Merger Agreement (James Hardie Industries PLC)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Acceptance Time, notwithstanding approval by the shareholders of the Companyas follows:
(a) by mutual written consent duly authorized by the Boards of Parent, Merger Sub Directors of Nikola and the CompanyRomeo;
(b) by Parent either Nikola or Romeo if the Company Acceptance Time shall not have occurred by January 30, 2023 (the “End Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to Romeo, on the one hand, or to Nikola and Purchaser, on the other hand, if any such Party’s action or failure to act has been a principal cause of the failure of the Acceptance Time to occur on or before the End Date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Nikola or Romeo if a court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Body shall have issued a final and nonappealable order, decree or ruling ruling, or shall have taken any other final action action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealableMerger;
(cd) by either Parent Nikola or Romeo if (i) the Company if Offer shall have terminated or expired in accordance with its terms solely as a result of the Effective Time non-satisfaction of the Minimum Condition (subject to the rights and obligations of Nikola or Purchaser to extend the Offer pursuant to Section 1.1(e)(ii)); provided, however, that the right to terminate this Agreement under this Section 8.1(d) shall not be available to (x) Nikola and Purchaser if Nikola or Purchaser shall have occurred on failed to comply in any material respect with its respective obligations under Section 1.1 or before the date which is nine months from the date hereof (the “Termination Date”)y) Romeo if Romeo shall have failed to comply in any material respect with its obligations under Section 1.2 or Section 5.4;
(e) by Nikola if a Romeo Triggering Event shall have occurred; provided provided, that the Nikola’s right to terminate this Agreement pursuant to this Section 8.1(c8.1(e) shall not be available expire at 5:00 p.m. (Eastern time) on the tenth (10th) Business Day following the date on which Romeo has provided written notification to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure Nikola of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes occurrence of a breach of this AgreementRomeo Triggering Event; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub Nikola shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(e) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further for each Romeo Triggering Event that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offeroccur;
(ef) by Parent if there shall have been Romeo, upon a breach of any representation, warranty, covenant or agreement on the part of Nikola or Purchaser set forth in this Agreement, or if any representation or warranty of Nikola or Purchaser shall have become inaccurate, in either case such that (i) (a) the Company contained representations and warranties of Nikola and Purchaser in Section 4.2 (Capitalization) shall not be true and correct, subject only to de minimis exceptions, at and as of the date of this Agreement or at and as of the Closing as if made at and as of the Closing, except for those representations and warranties which address matters only as of a particular date (which representations were not so true and correct as of such particular date); (b) the representations and warranties of Nikola and Purchaser in Sections 4.1 (Organization; Authority; Enforceability), 4.3 (Non-Contravention; Governmental Consents), 4.6 (SEC Filings), 4.9 (Shares of Common Stock) and 4.10 (No Vote of Nikola Stockholders) are not true and correct in all material respects as of the date of this Agreement or are not true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, except for those representations and warranties which address matters only as of a particular date (which representations were not so true and correct as of such particular date); and (c) any other representations and warranties of Nikola and Purchaser in Section 4 are not true and correct as of the date of this Agreement or are not true and correct on and as of the Closing Date with the same force and effect as if made on the Closing Date except (with respect solely to this clause (c)) (x) in each case, or in the aggregate, where the failure to be true and correct would not have an Nikola Material Adverse Effect (provided that all “Nikola Material Adverse Effect” qualifications and other materiality qualifications limiting the scope of the representations and warranties of Nikola and Purchaser in Section 4 will be disregarded), or (y) for those representations and warranties which address matters only as of a particular date (which representations were not so true and correct, subject to the qualifications as set forth in the preceding clause (i), as of such particular date) or (ii) any of the covenants and obligations in this Agreement that either Nikola or Purchaser is required to comply with or to perform at or prior to the Closing shall not have been complied with or performed in all material respects; provided, that if such inaccuracy in Nikola’s or Purchaser’s representations and warranties or breach by Nikola or Purchaser is curable by Nikola or Purchaser, then this Agreement shall not terminate pursuant to this Section 8.1(f) as a result of such particular breach or inaccuracy until the earlier of (I) the expiration of a thirty (30) day period commencing upon delivery of written notice to Nikola or Purchaser (as applicable) of such breach or inaccuracy and (II) the End Date; provided, however, that the right to terminate this Agreement under this Section 8.1(f) shall not be available to Romeo at any time that this Agreement is then terminable by Nikola pursuant to Section 8.1(g);
(g) by Nikola, (A) upon a breach of any representation, warranty, covenant or agreement on the part of Romeo set forth in this Agreement, or if any representation or warranty of Romeo shall have become inaccurate, in either case such that the conditions set forth in clause Section (cE)(1) or (dE)(2) of Exhibit A Schedule B would not be satisfied and, in either such case, as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided, that if such inaccuracy in Romeo’s representations and warranties or breach by Romeo is curable by Romeo then this Agreement shall not have been cured prior terminate pursuant to this Section 8.1(g) as a result of such particular breach or inaccuracy until the earlier of (Ai) 30 days following the expiration of a thirty (30) day period commencing upon delivery of written notice to Romeo of such breach to or inaccuracy and (ii) the Company and End Date or (B) upon five Business Days’ written notice to Romeo, if Romeo or any of its Subsidiaries shall have filed or instituted a bankruptcy, reorganization, liquidation, receivership or insolvency proceeding, or made an assignment for the Termination Datebenefit of its creditors; provided provided, however, that Parent in the case of any involuntary bankruptcy proceeding, if Romeo or any of its Subsidiaries consent to the involuntary bankruptcy or such proceeding is not dismissed within sixty (60) days after the filing thereof; provided, however, that the right to terminate this Agreement under this Section 8.1(g) shall not have the right be available to Nikola at any time that this Agreement is then terminable by Romeo pursuant to Section 8.1(f). The Party desiring to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated 8.1 (other than pursuant to this Section 8.1(e8.1(a)) after Parent or Merger Sub accepts Shares for payment shall give a notice of such termination to the other Party specifying the provisions hereof pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation which such termination is made and the Merger Recommendation basis therefor described in accordance with its fiduciary dutiesreasonable detail.
Appears in 2 contracts
Sources: Merger Agreement (Nikola Corp), Merger Agreement (Romeo Power, Inc.)
Termination. This Unless Purchaser determines, in its sole and absolute judgment, that the Property is suitable for Purchaser’s intended use or purpose, or is in satisfactory condition, then this Agreement may be terminated and shall terminate upon the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders expiration of the Company:
(a) by mutual written consent of ParentInspection Period, Merger Sub in which case the ▇▇▇▇▇▇▇ Money will be returned to Purchaser, and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States neither party shall have issued any further right or obligation under this Agreement except for those rights or obligations that expressly survive termination. If Purchaser determines that the Property is acceptable in its sole and absolute discretion, then Purchaser shall provide a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred notice to Seller on or before the date which is nine months from expiration of the date hereof Inspection Period that it has approved the Property (the “Termination DateApproval Notice”); provided that the right to terminate ) and this Agreement pursuant shall remain in full force and effect. If this Agreement does not terminate and Purchaser delivers the Approval Notice, the Inspection condition and any objections regarding the Inspection shall be deemed to have been waived by Purchaser for all purposes, and the ▇▇▇▇▇▇▇ Money shall become non-refundable subject to all of the other terms and conditions of this Section 8.1(c) Agreement. The Inspection shall not be available conducted at Purchaser’s sole cost and expense. For the avoidance of doubt, if Purchaser fails to provide Seller with the Approval Notice prior to the party seeking expiration of the Inspection Period, such failure shall be conclusively deemed to terminate if any action be full and complete disapproval of such matters and this Agreement shall terminate, the ▇▇▇▇▇▇▇ Money will be returned to Purchaser, and neither party (or, in the case of Parent, Merger Sub) shall have any further right or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at except for those rights 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 action or failure to perform constitutes a breach of this Agreement; and provided further obligations that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesexpressly survive termination.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Termination. 8.1 This Agreement AGREEMENT is in full force and effect from the EFFECTIVE DATE and remains in effect until the expiration of the last-to-expire patent in PATENT RIGHTS, unless otherwise terminated by operation of law or by acts of the parties in accordance with the terms of this AGREEMENT.
8.2 If this AGREEMENT has been in effect for at least three (3) years and if a LICENSE AGREEMENT(s) is (are) not in effect or in negotiation, then either party may terminate this AGREEMENT for any reason upon at least ninety (90) days written notice to the other party, but in any event not less than ninety (90) days prior to any patent prosecution deadline, whereby the failure to meet such deadline would result in any of the PATENT RIGHTS going abandoned. Nothing herein will be terminated and the Merger contemplated hereby may be abandoned at construed to release either party of any time obligation matured prior to the Effective Timeeffective date of termination, notwithstanding approval by or rescind any payments made or due before termination.
8.3 Termination of this AGREEMENT shall not affect the shareholders obligation of the Company:terminating party to pay its share of costs related to the PATENT RIGHTS in accordance with Article 2. Payment of such costs related to the PATENT RIGHTS shall continue for the life of each patent contained in the PATENT RIGHTS. Should either party decline to pay for its share of costs and charges associated with the filing, prosecuting, maintaining or enforcing the PATENT RIGHTS, it shall so notify the other party in writing pursuant to Sections 2.4 through 2.9 above.
(a) by mutual written consent 8.4 Termination of Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time this AGREEMENT shall not have occurred on affect any LICENSEE AGREEMENT(s) then in existence, and NET REVENUES received from such LICENSEE AGREEMENT(s) shall be distributed as set forth in this AGREEMENT. EMORY and INSTITUTION agree that, upon termination, both parties will be permitted to grant nonexclusive licenses under the PATENT RIGHTS, without paying compensation to the other party to this AGREEMENT, provided that each party pays fifty percent (50%) of all costs incurred thereafter in the preparation, prosecution, and maintenance of PATENT RIGHTS. All such license agreement(s) granted after termination of this AGREEMENT shall not contain terms that would create a breach by EMORY or before INSTITUTION of the date which is nine months provisions of any LICENSE AGREEMENT(s) granted prior to termination. Each party will be solely responsible for distributing any monies received from its own licensing of the PATENT RIGHTS according to its own policies, unless the parties otherwise agree in writing. Apart from the date hereof (obligation to share patent costs and apart from the “Termination Date”); provided that obligations accrued prior to termination, 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, in the case of Parent, Merger Sub) parties will have no further rights or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) AGREEMENT after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutieseffective termination.
Appears in 2 contracts
Sources: Inter Institutional Agreement, Inter Institutional Agreement
Termination. This Agreement may be terminated terminated, and the Merger transactions contemplated hereby may be abandoned abandoned, at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing Date:
(a) by mutual written consent agreement of Parent, Merger Sub ConAgra and the CompanyAcquisition LP;
(b) by Parent either ConAgra, on the one hand, or Acquisition LP, on the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderhand, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time Closing shall not have occurred on or before the date earlier of (i) September 30, 2002, or (ii) the first business day immediately following the sixtieth (60th) day after the initial day that actual marketing of the debt securities contemplated by the Bridge Commitment Letter begins (which is nine months from for purposes of this Agreement shall be the date hereof (that the “Termination Date”definitive offering memorandum is first delivered to potential purchasers of such debt securities); provided that, if Acquisition LP has delivered to ConAgra a termination notice as contemplated by Section 11.1(d) and if such termination is ineffective as a result of a timely cure by ConAgra of the asserted breach, then Acquisition LP shall have the right, by means of notice to ConAgra, to extend such date to a date that is the first business day immediately following the sixtieth (60th) day after the tenth (10th) day of the applicable cure period (the "Termination Date"); provided further that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c11.1(b) shall not be available to the party seeking to terminate if have breached in any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its material respect their obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, in any manner that shall have proximately caused the failure of to consummate the Effective Time to occur transactions contemplated herein on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause Date;
(c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) Closing by either ConAgra, on the Termination Date and (ii) such breach has hadone hand, or would reasonably be expected to haveAcquisition LP, individually on the other hand, if any permanent injunction, order, decree or in ruling by any Governmental Authority of competent jurisdiction preventing the aggregateconsummation of the transactions contemplated herein shall have become final and nonappealable; provided, a Parent Material Adverse Effect; provided however, that the Company shall not have the right party seeking to terminate this Agreement pursuant to this Section 8.1(d11.1(c) shall have used its reasonable best efforts to remove such injunction or overturn such action;
(d) by Acquisition LP, at any time, if there shall have been any (A) breach of one or more representations or warranties of ConAgra (which has not been waived), except for breaches (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth in such representations and warranties) which, individually and in the aggregate, have not had a Company is then in Material Adverse Effect and except for breaches that result from actions expressly permitted under or taken pursuant to this Agreement, or (B) material breach of any of its representations, warranties, one or more material covenants or agreements contained material obligations set forth in this Agreement; provided further that this Agreement may by ConAgra (which has not be terminated pursuant to this Section 8.1(dbeen waived), in each case of clause (A) after Parent or Merger Sub accepts Shares for payment pursuant to (B), which breach or breaches shall not have been cured within ten (10) days following receipt by ConAgra of written notice from Acquisition LP of such breach, and whether or not the Offerbreach was (1) within the control of ConAgra or (2) the result of ConAgra's actions or inactions;
(e) by Parent ConAgra, at any time, if there shall have been a any (A) breach of one or more representations or warranties of Acquisition LP (which has not been waived), except for breaches (without giving effect to any representationlimitation as to materiality or material adverse effect set forth in such representations and warranties) which, warrantyindividually and in the aggregate, covenant have not had a material adverse effect and except for breaches that result from actions expressly permitted under or agreement on the part taken pursuant to this Agreement, or (B) material breach of the Company contained one or more covenants or agreements set forth in this Agreement such that the conditions set forth by Acquisition LP (which has not been waived), in each case of clause (cA) or (d) of Exhibit A would not be satisfied andB), in either such case, such which breach or breaches shall not have been cured prior to the earlier of within ten (A10) 30 days following receipt by Acquisition LP of written notice from ConAgra of such breach, and whether or not the breach to was (1) within the Company and control of Acquisition LP or (B2) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent result of Acquisition LP's actions or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerinactions;
(f) by Parent in the event that an Acquisition LP, if any Closing Material Adverse Recommendation Change has occurred;Effect shall have been incurred or suffered; or
(g) by Parent in the event that ConAgra pursuant to Section 9.12 while contemporaneously (i) entering into definitive documents with respect to a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied Superior Offer and (yii) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors tendering payment of the Company Termination Fee pursuant to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesSection 9.12.1.
Appears in 2 contracts
Sources: Joint Venture Agreement (Conagra Foods Inc /De/), Joint Venture Agreement (S&c Resale Co)
Termination. This Agreement may be terminated and the Offer and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Acquisition and the Company;
(b) by Parent or Acquisition or the Company if (i) any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within in the United States or other United States governmental authority shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Offer or the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
nonappealable or (cii) the Merger has not been consummated by either Parent or October 31, 1999 (unless otherwise extended by the Company parties; provided that no party may terminate this Agreement pursuant to this clause (ii) if such party's failure to fulfill any of its obligations under this Agreement shall have been the reason that the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offersaid date;
(dc) by the Company if Parent or Merger Sub (i) there shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on been a breach of any representation or warranty indicated by on the words “part of Parent or Acquisition set forth in this Agreement, or if any representation or warranty of Parent or Acquisition shall have become untrue, in either case which materially adversely affects the consummation of the Offer, (ii) there shall have been a breach on the part of Parent or Acquisition of any of their respective covenants or agreements 38 39 hereunder having a Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” Effect or “materially”)materially adversely affecting the consummation of the Offer, and (i) Parent or Acquisition, as the case may be, has not cured such breach has not been cured prior to the earlier of (A) 30 ten (10) days following notice of such breach to Parent by the Company thereof and (B) two (2) Business Days prior to the Termination Date date on which the Offer expires; provided, however, that the Company has not breached any of its obligations hereunder in a manner that proximately contributed to such breach by Parent or Acquisition or (iii) prior to the purchase of Shares pursuant to the Offer, the Company has received a Superior Proposal and the Company Board by a majority vote shall have determined in its good faith judgment, on advice of counsel, that it must do so in the exercise of its fiduciary duties under the CGCL; provided, however, that, without limiting Parent's rights under Section 7.3(a), such termination under this clause (iii) shall not be effective until payment of the amount required by Section 7.3(b); or
(d) by Parent or Acquisition prior to the purchase of shares of Company Common Stock pursuant to the Offer if (i) the Company Board withdraws or modifies in a manner materially adverse to Parent or Acquisition its favorable recommendation of the Offer or the approval or recommendation of the Merger or shall have recommended a Third Party Acquisition (as defined below), (ii) such a Third Party Acquisition occurs, (iii) there shall have been a breach has hadof any representation or warranty on the part of Company set forth in this Agreement, or any representation or warranty of the Company shall have become untrue, in either case if the respects in which the representations and warranties made by the Company are inaccurate would reasonably be expected to havein the aggregate have a Company Material Adverse Effect or materially adversely affect (or delay) the consummation of the Offer or the Merger, (iv) there shall have been a breach on the part of the Company of its covenants or agreements hereunder having, individually or in the aggregate, a Parent Company Material Adverse Effect; provided that Effect or materially adversely affecting (or materially delaying) the consummation of the Merger, and, with respect to clauses (iii) and (iv) above, the Company shall has not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, cured such breach shall not have been cured prior to the earlier of (A) 30 ten (10) days following notice of such breach to by the Company Parent or Acquisition thereof and (B) two (2) Business Days prior to the Termination Datedate on which the Offer expires; provided that Parent shall not have the right that, with respect to terminate this Agreement pursuant to this Section 8.1(eclauses (iii) if and (iv) above, neither Parent or Merger Sub is then in material breach of Acquisition has breached any of its representations, warranties, covenants their respective obligations hereunder in a manner that proximately caused such breach by the Company or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e(v) after Parent or Merger Sub accepts Shares for payment pursuant Acquisition shall have discovered that any information supplied to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or Acquisition by the Company after (excluding, for such purposes, any projections or forecasts or other forward looking information supplied by the twentieth Business Day following an Adverse Recommendation Change if (x) Company), at the Majority Tender Condition has not then been satisfied and (y) time provided to Parent has not increased or Acquisition, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the Offer Price statements therein, in an amount sufficient to permit the Board of Directors light of the circumstances under which they were made, not misleading, and such misstatement or omission would have a Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Hi Holdings Inc), Merger Agreement (Haskel International Inc)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing as follows:
(a) by the mutual written consent of Parent, Merger Sub the Parent and the CompanyPurchaser;
(b) by the Parent or CVS, if the Company Closing shall not have occurred on or before August 31, 2004 (the “End Date”), otherwise than as a result of any material breach of any provision of this Agreement by the party, or such party’s affiliates who are parties to this Agreement, seeking to terminate this Agreement;
(c) by the Parent or CVS, if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderpermanently enjoined, decree or ruling or taken any other final action restraining, enjoining restrained or otherwise prohibiting prohibited the Merger consummation of the transactions contemplated hereby and such orderinjunction, decree, ruling restraint or other action is or prohibition shall have become final and nonappealable, provided that the party seeking to terminate this Agreement shall have used its reasonable best efforts to prevent and remove such injunction, restraint or prohibition;
(cd) by either the Parent, (i) if CVS or the Purchaser 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 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 Company 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, or (ii) if the Effective Time Parent or the Sellers shall have materially breached any of their respective covenants contained in this Agreement, in each case which breach cannot have occurred on be or before has not been cured within 30 calendar days after the date which is nine months from giving of written notice to the date hereof (Parent and the “Termination Date”); provided that the right Sellers. The party desiring to terminate this Agreement pursuant to this Section 8.1(c) 6.01 shall not be available to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following give notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant termination to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesother party.
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 contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing Date:
(a) by mutual written consent of Parent, Merger Sub the Seller and the CompanyBuyer;
(b) by 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 or other Governmental Entity located or having jurisdiction within in the United States or any state shall have issued a final an order, judgment or decree or ruling or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger and Closing, and, in either case, if such order, decreerule, ruling regulation, judgment or other action is or decree shall have become final and nonappealable;.
(c) by either Parent the Buyer or the Company Seller, by written notice to the other party, if the Effective Time Closing Date shall not have occurred on or before the date which that is nine months forty-five (45) calendar days from the date hereof (the “Initial Termination Date”); provided provided, however, that the right to terminate this the Agreement pursuant to under this Section 8.1(c) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required shall have proximately contributed to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time Closing Date to occur on or before such date; and provided, further, that if on the Initial Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant the conditions to the OfferClosing 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;
(d) by the Company Buyer, by written notice to the Seller, if Parent or Merger Sub there shall have breached been any breach of any representation or failed to perform any representation, warranty, or any breach of any covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by of the words “Parent Material Adverse Effect”Seller hereunder, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, which breaches individually or in the aggregate, aggregate would result in a Parent Company Material Adverse Effect; provided that the Company , and such breach shall not have been remedied within thirty (30) days after receipt by the right to terminate this Agreement pursuant to this Section 8.1(dSeller of notice in writing from the Buyer, specifying the nature of such breach and requesting that it be remedied, or the Buyer shall not have received adequate assurance of a cure of such breach within such thirty (30) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerday period;
(e) by Parent the Seller, by written notice to the Buyer, if (i) there shall have been a breach of any representationof 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 on the part of the Company contained Buyer hereunder, which breaches individually or in this Agreement such that the conditions set forth aggregate would result in clause a Buyer Material Adverse Effect, and, in the case of either (ci) or (d) of Exhibit A would not be satisfied and, in either such caseii), such breach shall not have been cured prior to remedied within thirty (30) days after receipt by the earlier Buyer of (A) 30 days following notice in writing from the Seller, specifying the nature of such breach to and requesting that it be remedied, or the Company and (B) the Termination Date; provided that Parent Seller shall not have the right to terminate this Agreement pursuant to this Section 8.1(ereceived adequate assurance of a cure of such breach within such thirty (30) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerday period;
(f) by Parent 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 the event that an a Company Material Adverse Recommendation Change has occurred;Effect; or
(g) by Parent the Seller if the Buyer shall not have satisfied, by April 1, 2003, its condition to close set forth in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties7.2(f).
Appears in 2 contracts
Sources: Purchase Agreement, LLC Purchase Agreement (Dqe Inc)
Termination. This Except as provided in Section 7.2, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing only:
(a) by mutual written consent agreement of the Company and Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time Closing Date shall not have occurred on or before the date which is nine months from the date hereof by September 30, 2018 (the “Termination End Date”); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c7.1(b) shall not be available to the any party seeking whose action or failure to terminate if any action act has been a principal cause of such party (or, or resulted in the case of Parent, Merger Sub) or the failure of the Merger to occur on or before such party date and such action or failure to act constitutes breach of this Agreement;
(or, c) by Parent if it is not in the case of Parent, Merger Sub) to perform any material breach of its obligations under this Agreement required to be performed at or prior to the Effective Time and there has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform inaccuracy in any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (cSections 2.2(b)(i) or (dand 2.2(b)(ii) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to as of the earlier of (A) 30 days following notice time of such breach or inaccuracy and such breach or inaccuracy has not been cured within thirty (30) calendar days after written notice thereof to the Company Company; provided, however, that no cure period shall be required (i) for a breach or inaccuracy which by its nature cannot be cured or (ii) if any of the conditions to Closing in Sections 2.2(a) and (B2.2(b) for the Termination benefit of Parent are incapable of being satisfied on or before the End Date; provided that Parent shall or
(d) by the Company if it is not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of its obligations under this Agreement and there has been a breach of or inaccuracy in any representation, warranty, covenant or agreement of its representations, warranties, covenants or agreements Parent contained in this Agreement; provided Agreement such that this Agreement may the conditions set forth in Sections 2.2(c)(i) and 2.2(c)(ii) would not be terminated pursuant to this Section 8.1(e) after Parent satisfied as of the time of such breach or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful inaccuracy and material such breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition inaccuracy has not then been satisfied cured within thirty (30) calendar days after written notice thereof to Parent; provided, however, that no cure period shall be required (i) for a breach or inaccuracy which by its nature cannot be cured or (ii) if any of the conditions to Closing in Sections 2.2(a) and (y2.2(c) Parent has not increased for the Offer Price in an amount sufficient to permit the Board of Directors benefit of the Company to reinstate are incapable of being satisfied on or before the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesEnd Date.
Appears in 2 contracts
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective TimeFirst Tranche Closing Date, notwithstanding approval by the shareholders of the CompanyCompany of the Merger and the transactions contemplated herein:
(a) by mutual written consent duly authorized by the Boards of Parent, Merger Sub Directors of the Company and the Company;Landmark Parties; or
(b) by Parent either the Company or the Landmark Parties if the First Tranche Closing shall not have occurred on or before November 30, 2001 (the "End --- Date") (provided, that a later date may be agreed upon in writing by the parties ---- -------- hereto and provided, further, that the right to terminate this Agreement under -------- ------- this Section 9.2(b) shall not be available to any party whose willful breach of this Agreement or failure to perform in all material respects its obligations under this Agreement to be performed or complied with prior to the First Tranche Closing has been the cause of or resulted in the failure of the First Tranche Closing to occur on or before such date); or
(c) by either the Company or the Landmark Parties if any a court of competent jurisdiction or other Governmental Entity located governmental, regulatory or having jurisdiction within the United States administrative agency or commission shall have issued a non-appealable final order, decree or ruling or taken any other final action action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)transactions contemplated hereby; provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company Landmark Parties if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by at the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has Shareholders' Meeting the approvals required under Section 6.11 are not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effectobtained; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(e) by Parent if there shall have been the Landmark Parties, (i) upon a material breach of any representation, warranty, covenant or agreement on the part of the Company contained (except for representations and warranties qualified by reference to materiality in which case any breach would give cause) set forth in this Agreement which is not cured within twenty (20) days after the Landmark Parties give notice of breach, or if any representation or warranty of Company shall have become untrue in any material respect (except for representations and warranties qualified by reference to materiality in which case if they become untrue in any respect cause would exist) such that the conditions set forth in clause (c) Section 6 or (d) of Exhibit A Section 7 would not be satisfied and, in either such case, such breach shall not have been cured prior to within twenty (20) days after the earlier of (A) 30 days following Landmark Parties give notice of such breach to the Company and breach, (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(eii) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate shall have withheld, withdrawn, or modified its recommendation of shareholder approval of the Offer Recommendation Merger and the Merger Recommendation transactions contemplated herein or shall have resolved to do any of the foregoing, (iii) upon the occurrence of any default under any Forbearance Agreement (including without limitation under Section 4 of the Forbearance Agreement between the Company and American National Bank) or any Forbearance Termination Event (as such term is defined in accordance with its fiduciary dutiesany applicable Forbearance Agreement) has occurred, or (iv) for any reason the Company fails to call and hold the Shareholders' Meeting by the End Date; provided, however, that -------- ------- the right to terminate this Agreement by the Landmark Parties under this Section 9.2(e) shall not be available to the Landmark Parties where the Landmark Parties are at that time in willful breach of this Agreement; or
(f) by either the Landmark Parties or the Company, if the Company shall have accepted a Superior Proposal or if the Board of Directors of the Company recommends a Superior Proposal to the shareholders of the Company.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Coolsavings Com Inc), Securities Purchase Agreement (Golden Steven M)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to or at the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by By the mutual written consent of Parent, Merger Sub and the Company, Uni-Pixel, Gemini and Merger Sub;
(b) by Parent By the Company, if the conditions precedent set forth in Article X shall not have been complied with, waived or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger performed and such ordernoncompliance or nonperformance shall not have been cured or eliminated (or by its nature cannot be cured or eliminated) on or before midnight, decreeHouston, ruling or other action is or shall have become final and nonappealableTexas time on December 31, 2004 (the "Termination Date");
(c) by either Parent or the Company By Uni-Pixel, if the Effective Time conditions precedent set forth in Article VIII shall not have been complied with, waived or performed and such noncompliance or nonperformance shall not have been cured or eliminated (or by its nature cannot be cured or eliminated) on or before the Termination Date;
(d) By Gemini, if the conditions precedent set forth in Article IX shall not have been complied with, waived or performed and such noncompliance or nonperformance shall not have been cured or eliminated (or by its nature cannot be cured or eliminated) on or before the Termination Date;
(e) By the Company, if any material item of disclosure or information obtained during the Company's ongoing due diligence investigation of Uni-Pixel shall warrant termination of this Agreement and the Transactions, as determined in the Company's reasonable discretion using any relevant information;
(f) By the Company, Uni-Pixel, Gemini or Merger Sub, if the Closing Date shall not have occurred on or before prior to the date which is nine months from Cutoff Date unless the date hereof (failure of such occurrence shall be due to the “Termination Date”); provided that failure of the right Party seeking 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of or observe its obligations under this Agreement required agreements set forth herein to be performed or observed by such Party 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 Closing Date;
(g) By any Party, upon written notice to the other Parties if any application for regulatory or governmental approval necessary to consummate the Merger and the Transactions shall have been denied or withdrawn at the request or recommendation of the applicable regulatory agency or governmental authority or by the Company upon written notice to the other Parties if any such action or failure application is approved with conditions which materially impair the value of Uni-Pixel, taken as a whole, to perform constitutes the Company;
(h) By the Company, if (i) there shall have occurred a breach Material Adverse Change in Uni-Pixel from that disclosed by Uni-Pixel on the date of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause , or (cii) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform there was a material breach in any representation, warranty, covenant covenant, agreement or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), obligation of Uni-Pixel hereunder and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to remedied within thirty (30) days after receipt by the earlier breaching Party of (A) 30 days following notice in writing from the Company specifying the nature of such breach and requesting that it be remedied; Except as otherwise specifically set forth herein, any termination of this Agreement under this Section 12.1 will be effective by the delivery of notice of the terminating Party to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesother Parties hereto.
Appears in 2 contracts
Sources: Merger Agreement (Uni-Pixel), Merger Agreement (Uni-Pixel)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing as follows:
(a) by mutual written consent notice of ParentBuyer to Seller or Seller to Buyer, Merger Sub if the other breaches any of its representations or warranties contained herein (without giving effect to any materiality qualifiers contained therein), in any material respect, or defaults in the performance of its covenants or agreements contained herein (without giving effect to any materiality qualifier contained therein), in any material respect, and such breach or default shall not be cured within thirty (30) days after the Company;date notice of such breach or default is served by the party seeking to terminate this Agreement; or
(b) by Parent written notice of Buyer to Seller or Seller to Buyer, if the Company if any court of competent jurisdiction FCC denies granting the FCC Consents or other Governmental Entity located or having jurisdiction within designates the United States shall have issued application for a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;trial-type hearing; or
(c) by either Parent written notice of Buyer to Seller or Seller to Buyer, if there shall be in effect any judgment, decree or order that would prevent or make unlawful the Company Closing of the transactions contemplated by this Agreement; or
(d) by written notice of Buyer to Seller, or by Seller to Buyer, if the Effective Time Closing shall not have occurred been consummated on or before the date which is nine months from first anniversary of the date hereof filing by the parties of the application for the FCC Consents (the “"Termination Date”"); provided or
(e) by written notice of Buyer to Seller, if the FCC grants the FCC Consents with conditions adverse to Buyer or its affiliates; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the no party seeking to terminate hereto may effect a termination hereof if any action of such party (or, is then in the case of Parent, Merger Sub) material breach or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach default of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representationfurther, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate termination of this Agreement pursuant to this Section 8.1(d) if the Company is then in material paragraph shall not relieve any party of any liability for breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier date of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiestermination.
Appears in 2 contracts
Sources: Letter Agreement for the Purchase of Construction Permit (Capstar Broadcasting Corp), Letter Agreement for the Purchase of Construction Permit (Capstar Broadcasting Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be Transactions abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by mutual written consent of Parent, Merger Sub both the Company and the CompanySPAC at any time;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderSPAC, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time Closing shall not have occurred by 5:00 p.m. (Hong Kong time) on or before the date which is nine months from the date hereof October 26, 2024 (the “Termination Agreement End Date”); provided provided, that neither the right to Company nor SPAC may terminate this Agreement pursuant to this Section 8.1(c9.1(b) shall not be available to the party seeking to terminate if any action it is in material breach of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required hereunder and such material breach causes, or results in, either (i) the failure to be performed at or satisfy the conditions to the obligations of the terminating party to consummate the Closing set forth in Article VIII prior to the Effective Time has been the cause ofAgreement End Date, or resulted in, (ii) the failure of the Effective Time Closing to occur on or before have occurred prior to the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause End Date;
(c) after Parent by the Company or SPAC, if any Governmental Authority (except for the Taiwan DIR Approval) shall have enacted, issued, promulgated, enforced or entered any Governmental Order, which has become final and nonappealable and has the effect of making consummation of the Merger Sub accepts Shares for payment pursuant to or the OfferFST Restructuring illegal or otherwise preventing or prohibiting consummation of the Merger or the FST Restructuring;
(d) by the Company Company, if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company SPAC Shareholder Approval shall not have been obtained by reason of the right failure to terminate this Agreement pursuant to this Section 8.1(dobtain the required vote at the SPAC Shareholders’ Meeting duly convened therefor and at any adjournment or postponement thereof, as applicable;
(e) by the Company, if the Company SPAC is then in material breach of any of its representationsobligations hereunder and such material breach will result in the failure to satisfy the conditions to the obligations of the Company Parties to consummate the Closing set forth in Section 8.3, warrantiesprovided that if such material breaches are curable by SPAC, covenants then, for a period of up to thirty (30) calendar days after receipt by SPAC of notice from the Company of such material breaches, but only as long as SPAC continues to use its reasonable best efforts to cure such material breaches, such termination by the Company shall be effective by the end of such thirty (30) calendar days;
(f) by SPAC, if the condition in Section 8.2(c) is not or agreements contained in will not be satisfied at the FST Restructuring Closing;
(g) by SPAC, if (i) the Company Parties fail to receive the Phase I DIR Approval within one hundred thirty two (132) calendar days after the date of this Agreement; (ii) the Company Parties fail to receive the Phase II DIR Approval within two hundred and ten (210) calendar days after the date of this Agreement; or (iii) such Taiwan DIR Approval is revoked, terminated or loses effect, provided further that in each case of (i) and (ii), if the Company provides a written confirmation prior to the relevant deadline (or if later, the date on which SPAC notifies the Company it wants to terminate under this Agreement may Section 9.1(g)) to SPAC, with reasonable evidence demonstrating that failure to obtain Phase I DIR Approval or Phase II DIR Approval (as applicable) was due to curable defects, then, for sixty (60) calendar days from the delivery of such confirmation, any termination notice from SPAC under this Section 9.1(g) shall not be terminated pursuant effective, as long as the Company Parties use their respective best efforts in such period to cure all such defects and seek the Taiwan DIR Approval, and if by the end of the period the Taiwan DIR Approval has not been obtained, any termination notice by SPAC under this Section 8.1(d9.1(g) after Parent or Merger Sub accepts Shares for payment pursuant to the Offercan be immediately effective;
(eh) by Parent SPAC, 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 clause has suffered or there is a Company Material Adverse Effect;
(ci) or (d) of Exhibit A would not be satisfied andby SPAC, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to if the Company and (B) the 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 Parties are in material breach of any of its representationstheir respective obligations hereunder and such material breach will result in the failure to satisfy the conditions to the obligations of SPAC to consummate the Closing set forth in Section 8.2, warranties, covenants or agreements contained in this Agreement; provided that if such material breaches are curable by the Company Parties, then, for a period of up to thirty (30) calendar days after receipt by the Company of notice from SPAC of such material breaches, but only as long as the Company Parties continue to use their respective reasonable best efforts to cure such material breaches, such termination by SPAC shall be effective by the end of such thirty (30) calendar days; and
(j) by SPAC, if the Company Shareholder Approval shall not have been obtained within forty-five (45) Business Days after the date of this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent and at any adjournment or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiespostponement thereof, as applicable.
Appears in 2 contracts
Sources: Business Combination Agreement (Chenghe Acquisition I Co.), Business Combination Agreement (Chenghe Acquisition I Co.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after approval by the shareholders of the CompanyCTS Shareholder described herein:
(a) by By mutual written consent of Parent, Merger Sub Microfield and the CompanyCTS;
(b) by Parent By either Microfield or the Company CTS if (i) any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Authority shall have issued a final an order, decree or ruling or taken any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the Merger completion of the transactions contemplated by this Agreement and such order, decree, decree or ruling or other action is or shall have become final and nonappealable, or (ii) the CTS Shareholders does not approve the Merger;
(c) by either Parent By Microfield if:
(i) CTS 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 Company if the Effective Time giving of written notice thereof to CTS;
(ii) Any representation or warranty of CTS shall not have occurred 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 CTS 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 Microfield 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, that such representation or warranty is incapable of being cured or has not been cured within 5 days after the giving of written notice thereof to CTS;
(iv) Since the date of the issuance of the CTS Financial Statements, CTS shall have suffered a Material Adverse Change, or any representation or warranty contained in the VSI Merger Agreement shall cease to be true and correct at any later date, as if made on such date.
(d) By CTS if:
(i) Microfield or Merger Sub 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 Microfield; 39-AGREEMENT AND PLAN OF MERGER
(ii) Any representation or warranty of Microfield or Merger Sub 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 Microfield or Merger Sub 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 CTS 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, that such representation or warranty is incapable of being cured or has not been cured within 5 days after the giving of written notice thereof to Microfield or Merger Sub;
(iv) Since June 29, 2003, Microfield shall have suffered a Material Adverse Change.
(e) By either Microfield or CTS if the Merger is not completed on or before the date which is nine months from the date hereof (the “Termination Date”); October 1, 2003, provided that the right to terminate this Agreement pursuant to this Section 8.1(c9.1(e) shall not be available to the any party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the where failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, results in the failure of the Effective Time Merger to occur on or before the Termination Date and be completed by such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right time. The party desiring to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there preceding paragraphs 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 clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following give written notice of such breach termination to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation other party in accordance with its fiduciary dutiesSection 10.5 hereof.
Appears in 2 contracts
Sources: Merger Agreement (Microfield Group Inc), Merger Agreement (Microfield Group Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of ParentWashington Mutual and Providian in a written instrument, Merger Sub and if the CompanyBoard of Directors of each so determines;
(b) by Parent either Washington Mutual or Providian if (i) any Governmental Entity which must grant a Requisite Regulatory Approval has denied approval of the Company if Merger or, unless Washington Mutual shall have waived the condition set forth in Section 8.2(f), the Subsidiary Merger and such denial has become final and nonappealable or (ii) any court Governmental Entity of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, nonappealable order enjoining or otherwise prohibiting the consummation of the Merger and such orderor, decree, ruling or other action is or unless Washington Mutual shall have become final and nonappealablewaived the condition set forth in Section 8.2(f), the Subsidiary Merger;
(c) by either Parent Washington Mutual or the Company Providian if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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 (orMarch 31, in the case of Parent2006, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, unless the failure of the Effective Time to occur on or before by such date shall be due to the Termination Date and such action or failure of the party seeking to terminate this Agreement to perform constitutes a breach or observe the covenants and agreements of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offersuch party set forth herein;
(d) by the Company if Parent either Washington Mutual or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement Providian (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall terminating party is not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or other agreement on contained herein) if the part other party shall have breached (i) any of the Company contained in this Agreement covenants or agreements made by such that the conditions set forth in clause (c) other party herein or (dii) any of Exhibit A would not be satisfied andthe representations or warranties made by such other party herein, and in either such case, such breach (x) is not cured within 30 days following written notice to the party committing such breach, or which breach, by its nature, cannot be cured prior to the Closing and (y) would entitle the non-breaching party not to consummate the transactions contemplated hereby under Section 8 hereof;
(e) by either Washington Mutual or Providian if any approval of the stockholders of Providian contemplated by this Agreement shall not have been cured prior obtained by reason of the failure to obtain the earlier of (A) 30 days following notice of such breach to required vote at the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent Providian Stockholders Meeting or Merger Sub is then in material breach of at any of its representations, warranties, covenants adjournment or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerpostponement thereof;
(f) by Parent Washington Mutual, if (i) the Board of Directors of Providian shall have failed to recommend the Merger, or shall have withdrawn, modified or changed in a manner adverse to Washington Mutual its recommendation of the event that an Adverse Recommendation Change has occurred;Merger (or shall have disclosed its intention to withdraw, modify or adversely change such recommendation), (ii) Providian shall have materially breached the terms of Section 7.10 hereof in any respect adverse to Washington Mutual or Providian or its Representatives shall have participated in any discussions or negotiations regarding any Acquisition Proposal for more than twenty (20) days after the date on which such discussions or negotiations first commenced, or (iii) Providian shall have breached its obligations under Section 7.3 by failing to call, give notice of, convene and hold the Providian Stockholders Meeting in accordance with Section 7.3; or
(g) by Parent in Washington Mutual if a tender offer or exchange offer for 25% or more of the event that outstanding shares of Providian Common Stock is commenced (other than by Washington Mutual or a willful Subsidiary thereof), and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of Providian recommends that the Company stockholders of Providian tender their shares in such tender or exchange offer or otherwise fails to reinstate recommend that such stockholders reject such tender offer or exchange offer within the Offer Recommendation and 10 business day period specified in Rule 14e-2(a) under the Merger Recommendation in accordance with its fiduciary dutiesExchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Providian Financial Corp), Merger Agreement (Washington Mutual Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after approval of the matters presented in connection with the Merger by the shareholders of the CompanyState Bancorp:
(a) by mutual written consent of Parent, Merger Sub State Bancorp and the CompanyValley;
(b) by Parent either Valley or State Bancorp upon written notice to the Company other party if the approval of any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting required for consummation of the Merger and the other transactions contemplated by this Agreement is denied by final, non-appealable action of such orderGovernmental Entity; provided, decreehowever, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right to terminate this Agreement pursuant to this Section 8.1(c7.1(b) shall not be available to the any party seeking whose failure to terminate if comply with any action provision of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted inmaterially contributed to, such action;
(c) by either Valley or State Bancorp, if the failure of the Effective Time to occur Merger shall not have been consummated on or before the Termination Date and Cutoff Date, or such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub later date as shall have breached or failed been agreed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated writing by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”Valley and State Bancorp), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has hadprovided, or would reasonably be expected to havehowever, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to no party may terminate this Agreement pursuant to this Section 8.1(d7.1(c) if the Company is then in failure of the Closing to have occurred on or before said date was due to such party’s material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or herein;
(d) by either Valley or State Bancorp if the approval of Exhibit A would not be satisfied and, in either such case, such breach the shareholders of State Bancorp required for the consummation of the Merger shall not have been cured prior obtained by reason of the failure to obtain the earlier of (A) 30 days following notice required vote at a duly held meeting of such breach to the Company and shareholders or at any adjournment or postponement thereof;
(Be) the Termination Date; by either Valley or State Bancorp (provided that Parent shall the terminating party is not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any representation, warranty, covenant or other agreement contained herein), if there shall have been a breach of its representations, warranties, covenants any of the representations or agreements contained warranties set forth in this Agreement; provided that this Agreement may on the part of the other party, which breach is not cured within thirty (30) days following written notice to the party committing such breach, or which breach, by its nature, cannot be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant cured prior to the OfferCutoff Date, and which breach of a representation or warranty, would, individually or in the aggregate with other breaches, (i) result in a Material Adverse Effect with respect to the party committing such breach, or (ii) result in one or more of the conditions set forth in Sections 6.1, 6.2 (in case of a termination by Valley) or 6.3 (in case of termination by State Bancorp) not to be satisfied or not capable of being satisfied by the Cutoff Date;
(f) by Parent either Valley or State Bancorp (provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein), if there shall have been a material breach of any of the covenants or agreements set forth in this Agreement on the part of the other party, which breach is not cured within thirty (30) days following written notice to the party committing such breach, or which breach, by its nature, cannot be cured prior to the Cutoff Date, and which breach of a representation, warranty or covenant, would, individually or in the event that an aggregate with other breaches, (i) result in a Material Adverse Recommendation Change has occurredEffect with respect to the party committing such breach, or (ii) result in one or more of the conditions set forth in Sections 6.1, 6.2 (in case of a termination by Valley) or 6.3 (in case of termination by State Bancorp) not to be satisfied or not capable of being satisfied by the Cutoff Date;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of Valley if, prior to receipt of the Company State Bancorp Shareholder Approval, State Bancorp or the State Bancorp Board of Directors (or any committee thereof) has (A) effected a State Bancorp Subsequent Determination or approved, adopted, endorsed or recommended any Acquisition Proposal, (B) failed to reinstate recommend the Offer Recommendation Merger and the Merger Recommendation approval of this Agreement by the shareholders of State Bancorp, (C) breached the terms of Section 5.3 in any material respect adverse to Valley, or (D) in response to the commencement (other than by Valley or a Subsidiary thereof) of a tender offer or exchange offer for 25% or more of the outstanding shares of State Bancorp Common Stock, recommended that the shareholders of State Bancorp 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 (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act;
(h) By State Bancorp if State Bancorp has received a Superior Proposal, and in accordance with its fiduciary duties.Section 5.3 of this Agreement, has entered into an acquisition agreement with respect to the Superior Proposal;
(i) by Valley if one or more of the conditions set forth in Sections 6.1 and 6.2 are not satisfied and are not capable of being satisfied by the Cutoff Date;
(j) by State Bancorp if one or more of the conditions set forth in Sections 6.1 and 6.3 are not satisfied and are not capable of being satisfied by the Cutoff Date; or
(k) by State Bancorp, if the State Bancorp Board of Directors so determines by a majority vote of the members of the entire State Bancorp Board of Directors, at any time during the five (5) day period commencing on the day after the Determination Date (the “Effective Termination Date”), if and only if the following conditions are satisfied:
(1) the Valley Final Price is less than $11.04 (such amount taking into consideration the Valley Stock Dividend);
(2) the number (the “Valley Ratio”) obtained by dividing (a) the Valley Final Price by (b) the Valley Initial Price shall be less than the number obtained by dividing (x) the Final Index Price by (y) the Initial Index Price and subtracting 0.20 from such quotient (the “Index Ratio”); and
(3) State Bancorp provides Valley three (3) business days prior written notice of such termination. For purposes of this Section 7.1(k), the following terms shall have the meanings indicated below:
Appears in 2 contracts
Sources: Merger Agreement (Valley National Bancorp), Merger Agreement (State Bancorp Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Parent and the CompanyCompany in a written instrument;
(b) by either Parent or the Company Company, by written notice to the other party, if (i) any court Governmental Entity which must grant a Required Money Transfer Approval has denied such approval and such denial has become final and non-appealable or (ii) any Governmental Entity of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, non-appealable Order enjoining or otherwise prohibiting the Merger consummation of the transactions contemplated by this Agreement; provided, however, the right to terminate this Agreement pursuant to this clause (ii) shall not be available to any party if issuance of such final non-appealable Order is primarily due to the failure of such party to perform or observe the covenants and agreements of such order, decree, ruling or other action is or shall have become final party set forth herein in all material respects as required and nonappealableas set forth in this Agreement;
(c) by either Parent or the Company Company, by written notice to the other party, if the Effective Time shall not have occurred on or before February 14, 2023 (as such date may be extended pursuant to the date which is nine months from the date hereof (following provisos, the “Termination End Date”); provided provided, that if any of the conditions set forth in Section 6.2(c) have not been satisfied or waived by the party having the benefit of the condition as of February 14, 2023 (the “Initial End Date”) (but all other conditions to the Closing set forth in Article VI shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions)), then either the Company or Parent may extend the End Date to May 14, 2023 (the “Extended End Date”) by delivery of written notice of such extension to the other party on or prior to the Initial End Date, in which case, subject to the second further proviso below regarding the Marketing Period, the End Date shall be deemed for all purposes to have been extended to the Extended End Date; provided, further, that the right to terminate this Agreement pursuant to this Section 8.1(c7.1(c) shall not be available to (i) the Company if the failure of the Effective Time to occur by such date is primarily due to the failure of the Company to perform or observe the covenants and agreements of the Company in all material respects as required and as set forth in this Agreement or (ii) Parent, if the failure of the Effective Time to occur by such date is primarily due to the failure of Parent or Merger Sub to perform or observe the covenants and agreements of such parties in all material respects as required and as set forth in this Agreement; provided, further, however, that if (1) as of the Initial End Date all conditions to the Closing set forth in Article VI shall have been satisfied or waived by the party seeking having the benefit of the condition (other than those conditions that by their nature are to terminate if any action be satisfied at the Closing, but subject to such conditions being capable of being satisfied as of the Initial End Date and at all times through the end of the Marketing Period) and the Marketing Period has not yet ended, the End Date shall automatically be extended solely for purposes of permitting the Marketing Period to be completed to the third (3rd) Business Day following the final day of the Marketing Period (but for the avoidance of doubt, under no circumstances shall the End Date be extended pursuant to this clause (1) past April 26, 2023) or (2) as of the Extended End Date all conditions to the Closing set forth in Article VI shall have been satisfied or waived by the party having the benefit of the condition (other than those conditions that by their nature are to be satisfied at the Closing, but subject to such conditions being capable of being satisfied as of such extended End Date and at all times through the end of the Marketing Period) and the Marketing Period has not yet ended, the End Date shall automatically be extended solely for purposes of permitting the Marketing Period to be completed to the third (3rd) Business Day following the final day of the Marketing Period (but for the avoidance of doubt, under no circumstances shall the End Date be extended pursuant to this clause (2) past June 8, 2023); provided further that Parent shall have the right but not an obligation, which right may be exercised in its sole and absolute discretion, to waive, at the Extended End Date, the failure of the conditions in Section 6.2(c) to be satisfied as of such Extended End Date, solely to permit the Marketing Period to occur and be completed prior to June 8, 2023) (it being agreed that any such waiver shall not affect the Company’s right to obtain the Parent Termination fee pursuant to Section 7.2(c)(i) at or after June 8, 2023) if the Closing does not occur after such waiver as a result of the failure to the conditions in Section 6.2(c) to be satisfied as of June 8, 2023);
(d) by either Parent or the Company (provided, that the terminating party (and, in the case of Parent, Merger Sub) is not then in material breach of any representation, warranty, covenant or other agreement contained herein), by written notice to the other party, if the other party (or, in the case of Parent, Merger Sub) shall have breached (i) any of the covenants or the failure of agreements made by such other party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at herein 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 action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) any of the representations or warranties made by such other party (or, in the case of Parent, Merger Sub) herein, and in either case, such breach has had(a) is not cured within forty-five (45) days following written notice to the party committing such breach (or the End Date (as may be extended under Section 7.1(c)), if earlier), or would reasonably be expected to havewhich breach, individually or in the aggregateby its nature, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may cannot be terminated pursuant cured and (b) would entitle the non-breaching party not to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to consummate the Offertransactions contemplated hereby under Article VI hereof;
(e) by either Parent or the Company, by written notice to the other party, 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 clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach Stockholder Approval shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to obtained at the Company and Stockholders Meeting (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent including any adjournment or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerpostponement thereof);
(f) by Parent, by written notice to the Company, prior to obtaining Company Stockholder Approval, if (i) the Company Board shall have effected a Change of Recommendation, whether or not permitted under this Agreement, (ii) the Company shall have breached Section 5.3 by failing to call and hold the Company Stockholders Meeting as provided therein or the Company shall have committed a Willful and Material Breach of Section 5.4, (iii) the Company shall have failed to publicly recommend against any tender offer or exchange offer that constitutes a Company Acquisition Proposal (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by the Company’s stockholders) within ten (10) Business Days after the commencement (as such term is defined in Rule 14d-2 of the Exchange Act) of such tender offer or exchange offer, or (iv) to the extent requested in writing by Parent, the Company Board shall have failed to publicly reaffirm the Company Recommendation within ten (10) Business Days after receipt of a written request by Parent in the event that an Adverse Recommendation Change to provide such reaffirmation if a Company Acquisition Proposal has occurredbeen publicly announced;
(g) by the Company, by written notice to Parent, if (i) all of the conditions in Section 6.1 and Section 6.2 have been satisfied or waived in writing by Parent (other than those conditions that by their nature are to be satisfied at the Closing; provided, that such conditions are capable of being satisfied), (ii) on or after the date the Closing should have occurred pursuant to Section 1.2 (taking into account the Marketing Period), the Company has delivered irrevocable written notice to Parent confirming that (a) all of the conditions set forth in Section 6.1 and Section 6.2 have been satisfied or waived in writing by Parent (other than those conditions that by their nature are to be satisfied at the event Closing; provided that a willful such conditions are capable of being satisfied), (b) all of the conditions set forth in Section 6.1 and material breach Section 6.3 have been satisfied or waived in writing by the Company (other than those conditions that by their nature are to be satisfied at the Closing; provided that such conditions are capable of being satisfied), (c) the Company is ready, willing and able to consummate the Closing, and (d) if the Equity Financing and Debt Financing are funded then the Closing will occur, and (iii) Parent and Merger Sub have failed to consummate the Closing on or before the third (3rd) Business Day after delivery of the notice referenced in clause (ii) of this Section 6.4 has occurred7.1(g) (or, if earlier, the End Date (as may be extended under Section 7.1(c))) and (x) the Company stood ready, willing and able to consummate the Closing throughout such period and (y) the conditions set forth in Section 6.1 and Section 6.2 (other than those conditions that by their nature are to be satisfied at the Closing; provided that such conditions are capable of being satisfied) remained satisfied or waived in writing by Parent throughout such period; or
(h) by Parent or the Company, by written notice to Parent, prior to obtaining the Company after the twentieth Business Day following an Adverse Recommendation Change Stockholder Approval, if (xi) the Majority Tender Condition has not then been satisfied Company Board authorizes the Company, subject to complying with the terms of Section 5.4(e), to enter into a binding definitive agreement to effect a transaction constituting a Company Superior Proposal, (ii) the Company prior to or concurrently with such termination pays to Parent in immediately available funds the Company Termination Fee, and (yiii) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance enters into such binding definitive agreement substantially concurrently with its fiduciary dutiesor immediately after such termination.
Appears in 2 contracts
Sources: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing as follows:
(a) by the mutual written consent of Seller, Buyer and Parent, Merger Sub and the Company;
(b) by Parent Seller or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;Buyer:
(ci) by either Parent or the Company if the Effective Time Closing shall not have occurred on or before the date which is nine months from the date hereof December 31, 2002 (the “Termination Date”)"TERMINATION DATE") or such other date contemplated by Section 5.07 of this Agreement; provided PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant to under this Section 8.1(c11.01(b)(i) shall not be available suspended as to the any party seeking whose breach, misrepresentation or failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations material obligation under this Agreement required to be performed at or prior to the Effective Time has shall have been the cause of, or shall have resulted in, the failure of the Effective Time Closing to occur on or before prior to the Termination Date and such action Date; or
(ii) if there shall be any Law that restrains or failure to perform constitutes prohibits consummation of the transactions contemplated hereby or if a breach final, nonappealable Governmental Order is issued restraining or otherwise prohibiting consummation of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause the transactions contemplated hereby;
(c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been Seller upon a breach of any representation, warranty, covenant or agreement on the part of either Buyer or Parent set forth in this Agreement, or if any representation or warranty of either Buyer or Parent shall have become untrue, in either case such that the Company contained condition set forth in Section 10.02(a) would not be satisfied, unless such breach or untruth can be cured prior to Closing and after receipt of notice thereof Buyer or Parent, as the case may be, proceeds in good faith to cure such breach or untruth as promptly as practicable;
(d) (A) by Buyer upon a breach of any representation, warranty, covenant or agreement (x) on the part of Seller set forth in this Agreement or (y) on the part of the Majority Stockholder or ▇▇▇▇▇▇ ▇▇▇▇▇ set forth in the Voting Agreement, or (B) if any representation or warranty of Seller, the Majority Stockholder or ▇▇▇▇▇▇ ▇▇▇▇▇ shall have become untrue, in each case such that the conditions condition set forth in Section 10.03(a) would not be satisfied, unless such breach or untruth can be cured prior to Closing and after receipt of notice thereof Seller or the Majority Stockholder, as applicable, proceeds in good faith to cure such breach or untruth as promptly as practicable;
(e) by Buyer if Seller or the Majority Stockholder shall have breached any of its respective obligations under Sections 5.08 or 5.09 of this Agreement or Sections 1.01 and 1.02 of the Voting Agreement or if the Stockholders fail to approve this Agreement and the transactions contemplated hereby, whether by vote or written consent, as contemplated by Section 5.08 of this Agreement.
(f) by Buyer as set forth in Section 5.07(a).
(g) by Buyer upon the filing of an insolvency proceeding by Seller or Seller having taken any corporate action to authorize such action.
(h) by Buyer if, in accordance with the survey conducted pursuant to Section 2.12 of this Agreement, fewer than 95% of Colleges Installed on the date of this Agreement are Installed on the Closing Date. Notwithstanding the foregoing, no party may terminate this Agreement pursuant to clause (c) or (d) of Exhibit A would not be satisfied andthis Section 11.01 if any representation or warranty of the party seeking to terminate is materially inaccurate or breached or such party has failed to comply with or satisfy, in either such caseall material respects, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company its covenants and (B) the Termination Date; provided that Parent shall not have the right agreements made hereunder. The party desiring to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated 11.01 (other than pursuant to this Section 8.1(e11.01(a)) after Parent or Merger Sub accepts Shares for payment pursuant shall give notice of such termination to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutieseach other party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Stein Avy H), Asset Purchase Agreement (CTN Media Group Inc)
Termination. This Agreement may be terminated and the Merger ----------- contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval thereof by the shareholders stockholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Parent and the Company;; or
(b) by Parent, upon any breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement that, either individually or in the aggregate, would constitute grounds for Parent to elect not to consummate the Merger pursuant to Section 5.2(a) or (b), if either (i) such breach cannot be cured prior to the Closing Date, or (ii) has not been cured within 45 days after the date on which written notice of such breach is given by Parent to the Company, specifying in reasonable detail the nature of such breach;
(c) by the Company, upon any breach of any representation, warranty, covenant or agreement of Parent set forth in this Agreement that, either individually or in the aggregate, would constitute grounds for the Company to elect not to consummate the Merger pursuant to Section 5.3(a) or (b), if either (i) such breach cannot be cured prior to the Closing Date, or (ii) has not been cured within 45 days after the date on which written notice of such breach is given by the Company to Parent, specifying in reasonable detail the nature of such breach;
(d) by either Parent or the Company Company, if any court of competent jurisdiction permanent injunction or other action by any Governmental Entity located or having jurisdiction within preventing the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting consummation of the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided 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 action and such failure materially contributed to such imposition;
(ce) by either Parent or the Company if (other than due to the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to willful failure of the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) this Agreement to perform any of its obligations under this Agreement hereunder which are required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (BTime) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured consummated on or prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representationsOctober 31, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;1997.
(f) by either Parent in or the event that an Adverse Recommendation Change has occurredCompany, if the approval of the stockholders of the Company of this Agreement and the Merger required for the consummation of the Merger shall not have been obtained by October 31, 1997;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by either Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change Company, if (xA) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company shall have approved or have recommended to reinstate the Offer Recommendation shareholders of the Company a Transaction Proposal or shall have resolved to do the foregoing; or (B) a tender offer or exchange offer for not less than a majority of the outstanding Voting Stock (as defined herein) of the Company (a "Takeover Proposal") is commenced (other than by Parent or any of its subsidiaries or affiliates), and the Merger Recommendation Board of Directors of the Company recommends that the shareholders of the Company tender their shares in accordance with such Takeover Proposal or otherwise fails to recommend that such shareholders reject such Takeover Proposal within ten business days of the commencement thereof; provided, however, that in each case this Agreement may only be terminated by the Company if, and only to the extent that, the Board of Directors of the Company, after advice of independent legal counsel, determines in good faith that failure to take such action could reasonably be deemed to constitute a breach of the Board's fiduciary duties under applicable law;
(h) by Parent in the event of a material adverse change in the business, prospects or financial condition of the Company;
(i) by the Company in the event of a material adverse change in the business, prospects or financial condition of Parent; or
(j) by either Parent or the Company after August 31, 1997, if the Form S-4 has not been declared effective by the SEC; provided that such right of termination shall not be available to a party if such party shall have materially breached its fiduciary dutiesobligation under Section 4.14 of this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Medarex Inc), Agreement and Plan of Reorganization (Medarex Inc)
Termination. This Agreement may be terminated terminated, and the Merger transactions contemplated hereby may be abandoned abandoned, at any time prior to the Effective Time, notwithstanding whether prior to or after the approval and adoption of this Agreement and the transactions contemplated hereby by the shareholders stockholders of the Company, Sub and Parent:
(a) by mutual written consent agreement of Parent, Merger Sub Parent and the Company;Company duly authorized by action taken by or on behalf of their respective Boards of Directors; or
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company upon notification to the non-terminating party by the terminating party:
(i) at any time after March 31, 2008 if the Effective Time Merger shall not have occurred been consummated on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date such date and such action or failure to perform constitutes consummate the Merger is not caused by a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to by the Offerterminating party;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that if the Company shall not have obtained approval of the right Merger by its stockholders by reason of the failure to terminate this Agreement pursuant to this Section 8.1(d) if obtain the Company is then in material breach requisite vote of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offersuch stockholders;
(eiii) if any Governmental Authority, the taking of action by which is a condition to the obligations of either the Company or Parent if there 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 Company contained non-terminating party set forth in this Agreement such that which breach has not been cured within 15 business days following receipt by the conditions set forth in clause (c) or (d) non-terminating party of Exhibit A would not be satisfied and, in either such case, notice of such breach from the terminating party or assurance of such cure reasonably satisfactory to the terminating party shall not have been cured prior to given by or on behalf of the earlier of (A) 30 days following notice of non-terminating party within such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerfive business day period;
(fv) by Parent in if any court of competent jurisdiction or other competent Governmental Authority shall have issued an order making illegal or otherwise restricting, preventing or prohibiting the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful Merger and material breach of Section 6.4 has occurredsuch order shall have become final and nonappealable; or
(hvi) 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 shares of the Parent are listed (other than as a result of the triggering of “circuit-breakers” or other similar stock exchange protection devices), (B) a declaration of a banking moratorium by any federal or state Governmental Authority or any suspension of payments in respect of banks in the United States or Australia, and (C) any limitation (whether or not mandatory) by Parent any federal or state Governmental Authority on the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board extension of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiescredit by banks or other lending institutions.
Appears in 2 contracts
Sources: Merger Agreement (Progen Pharmaceuticals LTD), Merger Agreement (Progen Pharmaceuticals LTD)
Termination. This Notwithstanding anything herein to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by Time whether before or after the shareholders of the CompanyATN Unitholder Approval or Parent Stockholder approval:
(a) by By the mutual written consent of Parent, Merger Sub Parent and the CompanyATN in a written instrument;
(b) by By either ATN or Parent or upon written notice to the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final orderother, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting if:
(i) the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall has not have occurred been consummated on or before the date which is nine months from the date hereof February 28, 2010 (the “Termination Date”); provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c9.1(b)(i) shall not be available to the a party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time other breach of this Agreement has been the a cause of, or resulted in, the failure of the Effective Time Merger to occur have been consummated on or before such date;
(ii) any Governmental Authority has issued a statute, rule, order, decree or regulation or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger or making the Merger illegal and such statute, rule, order, decree, regulation or other action shall have become final and nonappealable (provided that the terminating party has complied with its obligations hereunder);
(iii) ATN fails to obtain the ATN Unitholder Approval at the ATN Meeting;
(iv) there has been a material breach of or any inaccuracy in any of the representations or warranties set forth in this Agreement on the part of any of the other parties (treating Parent and Merger Sub as one party for the purposes of this Section 9.1), which breach is not cured within 30 days following receipt by the breaching party of written notice of such breach from the terminating party, or which breach, by its nature, cannot be cured prior to the Termination Date and (provided in any such action or failure to perform constitutes a case that the terminating party is not then in material breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or other agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”herein); provided, “in all material respects”however, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company no party shall not have the right to terminate this Agreement pursuant to this Section 8.1(d9.1(b)(iv) unless (x) the breach of representation or warranty, together with all other such breaches, would entitle the party receiving such representation not to consummate the transactions contemplated by this Agreement under Section 8.5 (in the case of a breach of representation or warranty by Parent or Merger Sub) or Section 8.6 (in the case of a breach of representation or warranty by ATN), and (y) such terminating party is not in material breach of this Agreement;
(v) if the Company is then in there has been a material breach of any of its representations, warranties, the covenants or agreements contained set forth in this Agreement; provided further that this Agreement may on the part of any of the other parties, 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 terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant cured prior to the Offer;
Termination Date (e) by Parent if there shall have been a provided in any such case that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such herein); provided, however, that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach no party shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.1(b)(v) if unless (x) the breach of covenants or agreements, together with all other such breaches, would entitle the party receiving the benefit of such covenants or agreements not to consummate the transactions contemplated by this Agreement under Section 8.5 (in the case of a breach of covenants or agreements by Parent or Merger Sub Sub) or Section 8.6. (in the case of a breach of covenants or agreements by ATN), and (y) such terminating party is then not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant or
(vi) Parent fails to this Section 8.1(e) after obtain the Parent or Merger Sub accepts Shares for payment pursuant to Stockholder Approval at the OfferParent Meeting;
(fc) by Parent in By ATN (with the event that an Adverse Recommendation Change has occurred;
(g) by Parent prior approval of the ATN Special Committee), upon written notice to Parent, in the event that a willful and material breach of Section 6.4 Parent Change in Recommendation has occurred; or
(hd) by Parent or By Parent, upon written notice to ATN, in the Company after the twentieth Business Day following event that an Adverse ATN Change in Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesoccurred.
Appears in 2 contracts
Sources: Merger Agreement (Atlas Energy Resources, LLC), Merger Agreement (Atlas Resources Public #18-2008 Program)
Termination. (a) This Agreement may be terminated and by action of the Merger contemplated hereby may be abandoned Board of Directors of Trustmark or Cadence at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyTime if:
(ai) by mutual written consent of Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within in the United States or other United States (federal or state) governmental body shall have issued a final an order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have been final and non-appealable;
(ii) any of the transactions contemplated by this Agreement are disapproved (and such disapproval has become final and nonappealable;non-appealable) by any regulatory authority or other person whose approval is required to consummate any of such transactions; or
(ciii) by either Parent or the Company if the Effective Time Merger shall not have occurred become effective on or before March 31, 2011, or such later date as shall have been approved in writing by the date which is nine months from the date hereof (the “Termination Date”)Boards of Directors of Trustmark and Cadence; provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(a)(iii) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations material obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or has resulted in, the failure of the Effective Time Merger to occur become effective on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this date.
(b) This Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant at any time prior to the Offer;
(d) Closing by the Company Board of Directors of Cadence if Parent or Merger Sub (i) Trustmark shall have breached or failed fail to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “comply in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of respect with any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent , or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company representations or warranties of Trustmark contained herein shall be inaccurate in this Agreement any respect and such that inaccuracy constitutes a Material Adverse Effect or (ii) if the conditions set forth in clause (c) Article X have not been met or (d) waived by Cadence. In the event the Board of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier Directors of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right Cadence desires to terminate this Agreement pursuant because of an alleged breach or inaccuracy or change as provided in (i) above, such Board of Directors must notify Trustmark in writing of its intent to this Section 8.1(eterminate stating the reason therefor. Trustmark shall have fifteen (15) days from the receipt of such notice to cure the alleged breach or inaccuracy, subject to the approval of Cadence (which approval shall not be unreasonably withheld).
(c) This Agreement may be terminated at any time prior to the Closing by action of the Board of Directors of Trustmark if Parent or Merger Sub is then (i) Cadence shall fail to comply in any material breach of respect with any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may , or if any of the representations or warranties of Cadence contained herein shall be inaccurate in any respect and such inaccuracy constitutes a Material Adverse Effect, (ii) if the conditions set forth in Article IX have not be terminated pursuant to this Section 8.1(ebeen met or waived by Trustmark, or (iii) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of Trustmark reasonably concludes, after consulting with counsel, that Trustmark will be unable to obtain any regulatory approval required in order to consummate the Company Merger or any such approval is accompanied by terms or conditions which impose materially detrimental restrictions on the operations of Trustmark or the Continuing Corporation or which materially and adversely impact the value of the Merger transaction, taken as whole, to reinstate Trustmark. In the Offer Recommendation event the Board of Directors of Trustmark desires to terminate this Agreement because of an alleged breach or inaccuracy or change as provided in (i) above, such Board of Directors must notify Cadence in writing of its intent to terminate stating the cause therefor. Cadence shall have fifteen (15) days from the receipt of such notice to cure the alleged breach or inaccuracy, subject to the approval of Trustmark (which approval shall not be unreasonably withheld).
(d) This Agreement may be terminated at any time prior to the Closing with the mutual written consent of Trustmark and Cadence and the Merger Recommendation approval of such action by their respective Boards of Directors.
(e) This Agreement may be terminated at any time prior to the Closing by the Board of Directors of Cadence, if prior to the Effective Time, Cadence shall have received a bona fide Acquisition Proposal and Cadence’s Board of Directors determines in accordance with its good faith judgment and in the exercise of its fiduciary duties, based as to legal matters on the advice of independent legal counsel and as to financial matters on the advice of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. or an investment banking firm of national reputation, that such alternative Acquisition Proposal (if consummated pursuant to its terms) is a Superior Proposal, 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, that termination under this clause (e) shall not be deemed effective until payment of the Termination Fee required by Section 8.3.
(f) This Agreement may be terminated at any time prior to the Closing by the Board of Directors of Trustmark if Cadence’s Board of Directors shall have (i) resolved to accept an Acquisition Proposal, or (ii) withdrawn or modified, in any manner that is adverse to Trustmark, its recommendation or approval of this Agreement or the Merger or recommended to Cadence shareholders acceptance or approval of any alternative Acquisition Proposal, or shall have resolved to do the foregoing.
(g) This Agreement may be terminated at any time prior to Closing by either Trustmark or Cadence, if the shareholders of Cadence fail to approve the Merger at the special meeting of shareholders called for such purpose (or any adjournment thereof).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Trustmark Corp), Agreement and Plan of Reorganization (Cadence Financial Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(ai) by mutual written consent of Parent, Merger Sub UAG and the CompanyStockholder;
(bii) by Parent either UAG or the Company Stockholder if the Closing shall not have taken place on or prior to April 30, 1997, or such later date as shall have been approved by UAG and the Stockholder (provided that the terminating party is not otherwise in material breach of its representations, warranties, covenants or agreements under this Agreement);
(iii) by UAG or the Stockholder if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within in the United States or other United States governmental body shall have issued a final an order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger transactions contemplated by this Agreement, and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable;
(civ) by either Parent UAG or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate Sub if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall conditions specified in Article 6 hereof have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier met or waived by UAG and Sub at such time as such condition is no longer capable of satisfaction (A) 30 days following notice of such breach to Parent provided UAG and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall Sub are not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then otherwise in material breach of any of their or its representations, warranties, covenants or agreements contained in under this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer);
(ev) by Parent the Stockholder if any of the conditions specified in Article 7 hereof have not been met or waived by the Stockholder at such time as such condition is no longer capable of satisfaction (provided that neither the Stockholder nor the Company is otherwise in material breach of their or its representations, warranties covenants or agreements under this Agreement); or
(vi) by either UAG or the Stockholder if there shall have has been a material breach on the part of the other of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would this Agreement, which breach has not be satisfied and, in either such case, such breach shall not have been cured prior to within ten (10) Business Days following receipt by the earlier breaching party of (A) 30 days following written notice of such breach to breach. If UAG or the Company and (B) the Termination Date; provided that Parent Stockholder shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representationsthe provisions hereof, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not such termination shall be terminated effected by notice to the other party specifying the provision hereof pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutieswhich such termination is made.
Appears in 2 contracts
Sources: Stock Purchase Agreement (United Auto Group Inc), Stock Purchase Agreement (United Auto Group Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing Date:
(a) by By mutual written consent agreement of Parent, Merger Sub the Purchaser and the CompanySellers;
(b) by Parent By the Purchaser, if the conditions set forth in Article 7 shall not have been complied with or performed in any material respect on or before the Company Closing Date or if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States events shall have issued a final order, decree occurred which have made it impossible for the conditions to Closing set forth in Article 7 to be satisfied on or ruling or taken any other final action restraining, enjoining or otherwise prohibiting before the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;Closing Date; or
(c) by either Parent or By the Company Sellers, if the Effective Time conditions set forth in Article 8 shall not have occurred been complied with or performed in any material respect on or before the date Closing Date or if events shall have occurred which is nine months from have made it impossible for the date hereof conditions to Closing set forth in Article 8 to be satisfied on or before the Closing Date; or
(d) By the “Termination Date”Sellers, the Purchaser or Blackhawk, if the Closing has not occurred by September 20, 1996; or
(e) By the Purchaser if at any time it shall have determined in good faith that it will be unable to finance the payment of the Purchase Price (in which event the provisions of Section 6.9 shall be applicable); provided that the right to no party hereto may terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate 11.4 if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material and willful breach of any of its representations, warranties, covenants or agreements contained in this AgreementAgreement or if it caused any of the conditions to closing not to be satisfied; and provided further that (i) the Sellers may extend the date specified in clause (d) above by an amount of time reasonably necessary to permit the Closing to occur as soon as is practicable if there is a willful failure by the Purchaser to satisfy one or more material closing conditions specified in Article 8 above and (ii) the Purchaser may extend the date specified in clause (d) above by an amount of time reasonably necessary to permit the Closing to occur as soon as is practicable if there is a willful failure by the Sellers to satisfy one or more of the closing conditions specified in Article 7 above. In the event of the termination of this Agreement, this Agreement may not be terminated pursuant shall thereafter become void and have no effect, and no party hereto shall have any liability to the other parties hereto or their respective stockholders or directors or officers in respect thereof, except for the obligations of the parties hereto which by their express terms survive termination hereof and the obligations of the parties hereto in Sections 6.5 and 6.6 and this Section 8.1(d) after Parent or Merger Sub accepts Shares 11.4 and except that nothing herein shall relieve any party from liability for payment pursuant to the Offer;
(e) by Parent if there shall have been a any willful breach of any representation, warranty, covenant or agreement on the part provision of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiestermination.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Prime Succession Inc), Stock Purchase Agreement (Loewen Group Inc)
Termination. This Except as provided in Sections 7.2 or 7.3 and other than the termination provisions applicable to particular Sections of this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Timethat are specifically provided elsewhere in this Agreement, notwithstanding approval by the shareholders of the Companythis Agreement shall terminate:
(a) by in its entirety, with the mutual written consent agreement of Parent, Merger Sub the Company and the Companyeach Investor Party;
(b) with respect to an Investor Party, upon written notice by Parent or such Investor Party to the other parties hereto, upon a material breach by the Company if of any of the Company’s representations or warranties in Article VI or any of its covenants or agreements contained herein with respect to such Investor Party, provided that such breach shall not have been cured within ten (10) Business Days after written notice thereof shall have been received by the Company; and provided further that other than with respect to an intentional breach, such ten (10) Business Day period shall be tolled for so long as (i) the Company is making reasonably diligent efforts to cure such breach (provided that the period during which such termination right is tolled shall not exceed a total of thirty (30) Business Days unless (x) such breach is not curable by the end of such 30 Business Day period and (y) before the end of such 30 Business Day period the Company obtains a determination from a court of competent jurisdiction that the Company is making reasonably diligent efforts to cure such breach or other Governmental Entity located equitable relief providing for such tolling, in which case the tolling shall continue for so long as the court may determine up to a maximum of ninety (90) days) or having (ii) the Company is contesting such alleged breach in good faith and has obtained temporary or preliminary relief from a court of competent jurisdiction within thirty (30) Business Days (provided, that to the United States extent such temporary or preliminary relief is lifted, this Agreement shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and be immediately terminable by such order, decree, ruling or other action is or shall have become final and nonappealableInvestor Party);
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided that the right with respect 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 (oran Investor Party, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) upon written notice by the Company if Parent or Merger Sub shall have breached or failed to perform any representationsuch Investor Party, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, upon a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach by such Investor Party of any of its such Investor Party’s representations, warranties, covenants or agreements contained in this Agreement; herein, provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured within ten (10) Business Days after written notice thereof shall have been received by such Investor Party; and provided further that other than with respect to an intentional breach, such ten (10) Business Day period shall be tolled for so long as (i) the Investor Party is making reasonably diligent efforts to cure such breach (provided that the period during which such termination right is tolled shall not exceed a total of thirty (30) Business Days unless (x) such breach is not curable by the end of such thirty (30) Business Day period and (y) before the end of such thirty (30) Business Day period the Investor Party obtains a determination from a court of competent jurisdiction that the Investor Party is making reasonably diligent efforts to cure such breach or other equitable relief providing for such tolling, in which case the tolling shall continue for so long as the court may determine up to a maximum of ninety (90) days) or (ii) the Investor Party is contesting such alleged breach in good faith and has obtained temporary or preliminary relief from a court of competent jurisdiction within thirty (30) Business Days (provided, that to the extent such temporary or preliminary relief is lifted, this Agreement shall be immediately terminable by the Company);
(d) with respect to an Investor Party, upon such Investor Party having an Equity Interest of less than 5%;
(e) in its entirety, upon termination of the Contribution Agreement in accordance with its terms prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferClosing;
(f) in its entirety, upon written notice by Parent any party hereto to the other parties hereto, at any time during the thirty (30)-day period commencing upon the expiration of the thirty (30)-day period set forth in the event that an Adverse Recommendation Change has occurredSection 7.3;
(g) by Parent in the event that with respect to Liberty, upon a willful and material breach Liberty Change of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesControl.
Appears in 2 contracts
Sources: Stockholders Agreement (CCH I, LLC), Stockholders Agreement (Charter Communications, Inc. /Mo/)
Termination. This Agreement may be validly terminated and the Merger contemplated hereby may be abandoned abandoned, whether before or after the Company Stockholder Approval has been obtained (except as otherwise provided below), at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Company:
(a) by mutual written consent of Parent, Merger Sub Parent and the Company;
(b) by either Parent or the Company Company, upon written notice to the other party, if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such orderhas not been consummated on or before February 17, decree2025 (the “End Date”); provided, ruling however, that the right to terminate this Agreement under this Section 8.01(b) shall not be available to any party whose material breach of any provision of this Agreement has primarily caused the failure to consummate the Transactions on or other action is or shall have become final and nonappealableprior to the End Date;
(c) by either Parent or the Company Company, upon written notice to the other party, if any Governmental Authority of competent jurisdiction shall have issued a final and non-appealable Order or taken any other final action permanently enjoining, restraining or otherwise prohibiting the Effective Time shall not have occurred on or before consummation of the date which is nine months from the date hereof (the “Termination Date”)Transactions; provided provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c8.01(c) shall not be available to have (i) breached in any material respect its obligations under Section 6.09 or (ii) been the party seeking to terminate if any action primary cause of such party (or, in the case of Parent, Merger Sub) Order or the other action due to failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerobligations;
(d) by either Parent or the Company, upon written notice to the other party, if the Stockholders’ Meeting shall have concluded (including after any postponement, recess or adjournment thereof taken in accordance with this Agreement) and the Company if Stockholder Approval shall not have been obtained thereat;
(e) by Parent, upon written notice to the Company, in the event of a breach by the Company of any representation, warranty, covenant or other agreement contained herein that (i) would result in any condition set forth in Section 7.02 not being satisfied and (ii) has not been cured prior to the earlier of the End Date or the thirtieth (30th) calendar day following Parent’s delivery of written notice of such breach to the Company; provided, however, that Parent or shall not be entitled to terminate this Agreement pursuant to this Section 8.01(e) if, at the time of such termination, either Parent of Merger Sub shall have breached or failed to perform is then in material breach of any representation, warranty, covenant or agreement contained in this Agreement such that a condition set forth in Section 7.03 would not be satisfied;
(without giving effect to any limitation on any representation or warranty indicated f) by the words “Company, upon written notice to Parent, in the event of a breach by Parent Material Adverse Effect”or Merger Sub of any representation, “in all material respects”warranty, “in any material respect”, “material” covenant or “materially”), and other agreement contained herein that (i) such breach would result in any condition set forth in Section 7.03 not being satisfied and (ii) has not been cured prior to the earlier of the End Date or the thirtieth (A30th) 30 days calendar day following the Company’s delivery of written notice of describing such breach to Parent and (B) the Termination Date and (ii) such breach has hadParent; provided, or would reasonably be expected to havehowever, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right be entitled to terminate this Agreement pursuant to this Section 8.1(d8.01(f) if if, at the time of such termination, the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions a condition set forth in clause (c) or (d) of Exhibit A Section 7.02 would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurredsatisfied;
(g) by Parent, upon written notice to the Company, if, prior to obtaining the Company Stockholder Approval, (i) the Company Board or any committee thereof shall have effected an Adverse Recommendation Change (provided, however, that the exercise of such termination right by Parent must occur within ten (10) Business Days after such Adverse Recommendation Change) or (ii) the Company has breached its obligations under Section 6.02 in the event that a willful and any material breach of Section 6.4 has occurredrespect; or
(h) by Parent or the Company, upon written notice to Parent, if, prior to obtaining the Company after Stockholder Approval, (i) the twentieth Business Day following Company Board shall have effected an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in order to enter into an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation Alternative Acquisition Agreement providing for a Superior Proposal in accordance with its fiduciary dutiesSection 6.02(f) and (ii) in connection with such termination, the Company pays or causes to be paid to Parent the Termination Fee in accordance with Section 8.02(b).
Appears in 2 contracts
Sources: Merger Agreement (Chuy's Holdings, Inc.), Merger Agreement (Darden Restaurants Inc)
Termination. This Agreement may be validly terminated only as follows (it being understood and the Merger contemplated hereby agreed that this Agreement may not be abandoned terminated for any other reason or on any other basis):
(a) at any time prior to the Effective Time, Time (notwithstanding approval by the shareholders prior receipt of the Company:
(a) Company Shareholder Approval), by mutual written consent agreement of Parent, Merger Sub Parent and the Company;; or
(b) by Parent or either the Company if or Parent, at any court time prior to the Effective Time (notwithstanding the prior receipt of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if Shareholder Approval), in the event that the Effective Time shall not have occurred on or before 120 days following the Effective Date (such date which is nine months from the date hereof (referred to herein as the “Termination Outside Date”); provided provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c10.01(b) shall not be available to any Party whose breach of the party seeking to terminate if any action terms and conditions of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has have been the a principal cause of, or primarily resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreementdate; and provided further that this Agreement may not be terminated pursuant to this clause or
(c) after by Parent, at any time prior to the Effective Time (notwithstanding the prior receipt of the Company Shareholder Approval), in the event that (i) Parent or and Merger Sub accepts Shares for payment pursuant to the Offer;
have not breached (dwithout a subsequent cure) by the Company if Parent any of their respective representations, warranties or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in covenants under this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of breached any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in under this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A Section 8.02 would not be satisfied andand shall have failed to cure, in either such caseor cannot cure, such breach shall not have been cured prior to within fifteen (15) Business Days after the earlier of (A) 30 days following Company has received written notice of such breach from Parent; or
(d) by Parent, at any time prior to the Effective Time, if there shall have occurred a Company and Material Adverse Effect after the Effective Date; or
(Be) by the Company, at any time prior to the Effective Time, if there shall have occurred a Parent Material Adverse Effect after the Effective Date or if the weighted average closing price of the Parent Shares quoted on the website of OTC Markets Group over a forty-five (45) trading day period at any time falls below $0.50 prior to Closing; or
(f) by the Company, at any time prior to the Effective Time (notwithstanding the prior receipt of the Company Shareholder Approval), in the event that (i) the Termination Date; provided that Parent shall Company has not have the right to terminate this Agreement pursuant to this Section 8.1(ebreached (without a subsequent cure) if Parent or Merger Sub is then in material breach of any of its representations, warranties, warranties or covenants or agreements contained in this Agreement; provided that under this Agreement may not be terminated pursuant to this Section 8.1(ein any material respect and (ii) after Parent or Merger Sub accepts Shares for payment pursuant shall have breached any of its representations, warranties or covenants under this Agreement such that the conditions set forth in Section 8.03 would not be satisfied and shall have failed to cure, or cannot cure, such breach within fifteen (15) Business Days after Parent has received written notice of such breach from the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurredCompany;
(g) by Parent the Company in the event that a willful and material breach the Company Shareholder Approval is not obtained, provided that the Parties agree that the provisions of Section 6.4 has occurred10.01(h) shall apply if the failure to obtain the Company Shareholder Approval was predated by the Company Board withdrawing or modifying its approval or recommendation of this Agreement or the Merger in order to comply with its fiduciary duties under applicable law as set forth in Section 10.01(h); or
(h) by Parent the Company, at any time prior to the Effective Date in the event that (i) the Company has not breached or been deemed to have breached Section 5.02; (ii) the Company Board has received a Superior Proposal (iii) in light of such Superior Proposal, the Company Board shall have determined in good faith, after consultation with outside counsel, that it is necessary for the Company Board to withdraw or modify its approval or recommendation of this Agreement or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price Merger in an amount sufficient order to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance comply with its fiduciary dutiesduty under applicable law; (iv) the Company has notified the Parent in writing of the determinations described in clause (iii) above; (v) at least 5 Business Days following receipt by the Parent of the notice referred to in clause (iv) above, and taking into account any revised proposal made by the Parent, such Superior Proposal remains a Superior Proposal and the Company Board has again made the determinations referred to in clause (iii) above; and (vi) the Company Board concurrently approves, and the Company concurrently enters into, a definitive agreement providing for the implementation of such Superior Proposal, provided that, in the event the Company terminates this Agreement pursuant to the terms of this Section 10.01(h), the Company shall pay a termination payment to Parent in the amount of six hundred thousand dollars ($600,000).
Appears in 2 contracts
Sources: Merger Agreement (Helix TCS, Inc.), Merger Agreement (Helix TCS, Inc.)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing:
(a) by the mutual written consent of Parentthe Company, Merger Sub Buyer and the CompanySellers;
(b) by Parent either Buyer or the Company by written notice to the other party if any court of competent Governmental Authority with jurisdiction or other Governmental Entity located or having jurisdiction within the United States over such matters shall have issued a final orderfinal, decree or ruling or taken any other final action non-appealable Governmental Order permanently restraining, enjoining or otherwise prohibiting the Merger consummation of the Purchase and such order, decree, ruling Sale or any of the other action is or shall have become final and nonappealabletransactions contemplated by this Agreement;
(c) by either Parent Buyer or the Company by written notice to the other party if the Effective Time transactions contemplated by this Agreement shall not have occurred been consummated on or before the close of business on (i) the date which that is nine months ninety (90) days from the date hereof Effective Date or (ii) December 31, 2015, upon the request by either Buyer or the Company, provided that all conditions to Closing in ARTICLE IX of the party requesting the extension are satisfied other than (A) the condition set forth in Section 9.1(b) (HSR) and (B) those conditions that by their nature can only be satisfied at Closing (the “Termination Outside Date”); provided that , unless the right failure to terminate consummate the transactions contemplated by this Agreement pursuant on or prior to the Outside Date is the result of any material breach of this Section 8.1(c) shall not be available to Agreement by the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerterminate;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform Company, upon a breach of any representation, warranty, covenant or agreement contained on the part of Buyer set forth in this Agreement (without giving effect to any limitation on Agreement, or if any representation or warranty indicated by of Buyer shall have become untrue, in either case such that the words “Parent Material Adverse Effect”, “conditions set forth in all material respects”, “in any material respect”, “material” or “materially”), and (iSection 9.2(a) such breach has would not been cured prior to be satisfied as of the earlier of (A) 30 days following notice time of such breach or as of the time such representation or warranty shall have become untrue, provided that prior to Parent and (B) the Termination Date and (ii) any termination of this Agreement under this Section 10.1(d), Buyer shall be entitled to cure any such breach has had, or would reasonably be expected capable of being cured during a thirty (30) day period following receipt of written notice from the Company to have, individually or in the aggregate, a Parent Material Adverse Effect; provided Buyer of such breach (it being understood that the Company shall may not have the right to terminate this Agreement pursuant to this Section 8.1(d10.1(d) if the Sellers or the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that shall have materially breached this Agreement may not or if such breach by Buyer is cured during such thirty (30) day period so that such conditions would then be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;satisfied); or
(e) by Parent if there shall have been Buyer, upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained or the Sellers set forth in this Agreement Agreement, or if any representation or warranty of the Company or the Sellers shall have become untrue, in either case such that the conditions set forth in clause (cSection 9.3(a) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to as of the earlier of (A) 30 days following notice time of such breach or as of the time such representation or warranty shall have become untrue, provided that prior to any termination of this Agreement under this Section 10.1(e), the Company and the Sellers shall be entitled to cure any such breach capable of being cured during a thirty (30) day period following receipt of written notice from Buyer to the Company and the Sellers of such breach (B) the Termination Date; provided it being understood that Parent shall Buyer may not have the right to terminate this Agreement pursuant to this Section 8.1(e10.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that it shall have materially breached this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to if such breach by the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent Company or the Company after the twentieth Business Day following an Adverse Recommendation Change if Sellers is cured during such thirty (x30) the Majority Tender Condition has not day period so that such conditions would then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesbe satisfied).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Flowers Foods Inc), Stock Purchase Agreement (Flowers Foods Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to before the Effective Time, notwithstanding approval Time in each case as authorized by the shareholders respective Board of Directors of the CompanyCompany or Brekford:
(a) by By mutual written consent of Parent, Merger Sub each of the Company and the CompanyBrekford;
(b) by Parent or By either the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company Brekford if the Effective Time Mergers shall not have occurred been consummated on or before the date which is nine months from the date hereof August 31, 2017 (the “Termination Date”); provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c9.1(b) shall not be available to the party seeking any Party whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this AgreementDate; and provided further provided, further, that this Agreement may if on the Termination Date the conditions to the Closing set forth in Section 8.1(d) shall not have been fulfilled, but all other conditions to the Closing shall be terminated pursuant fulfilled or shall be capable of being fulfilled, then the Termination Date shall be extended to this clause a date mutually agreed upon by the parties hereto;
(c) after Parent By either the Company or Merger Sub accepts Shares for payment pursuant Brekford 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 shall use their commercially reasonable efforts to lift), in each case permanently restraining, enjoining or otherwise prohibiting the Offertransactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable;
(d) by By either the Company or Brekford if Parent or Merger Sub the other shall have breached breached, or failed to perform comply with, in any representation, warranty, covenant or agreement contained in material respect any of its obligations under this Agreement (without giving effect to any limitation on or any representation or warranty indicated made by the words “Parent Material Adverse Effect”, “such other Party shall have been incorrect in all any material respects”, “respect when made or shall have since ceased to be true and correct in any material respect”, “material” or “materially”), and such breach, failure or misrepresentation is not cured within thirty (i30) days after notice thereof and such breach has not been cured prior breaches, failures or misrepresentations, individually or in the aggregate and without regard to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has hadmateriality qualifiers contained therein, results or would reasonably be expected to have, individually or result in the aggregate, a Parent Material Adverse Effect; provided that Effect on Novume, the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferBrekford;
(e) by Parent if there shall have been By either the Company or Brekford upon the occurrence of a breach of any representation, warranty, covenant or agreement Material Adverse Effect on the part of other or on Novume or an event which could reasonably be expected to result in a Material Adverse Effect on the Company contained in this Agreement such that the conditions set forth in clause (c) other or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offeron Novume;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or By either the Company after the twentieth Business Day following an Adverse Recommendation Change or Brekford if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the other or any committee of the Board of Directors of the other (i) shall withdraw or modify in any adverse manner its approval or recommendation of this Agreement, the Mergers or any other transaction contemplated hereby, (ii) shall fail to reaffirm such approval or recommendation upon such Party’s request, (iii) approve or recommend any acquisition of the other or a material portion of its assets or any tender offer for shares of its capital stock, in each case, other than by a Party or an affiliate thereof, or (iv) shall resolve to take any of the actions specified in clause (i) above; or
(g) By either the Company or Brekford if the Company Stockholders’ Approval or the Brekford Stockholders’ Approval, as applicable, is withdrawn or modified in any adverse manner, or any further required stockholder approval is not provided, such that the transactions contemplated by this Agreement, in whole or in part, are not authorized by all stockholder approval required under Delaware Law and each applicable Party’s Organizational Documents; provided, however, that no termination by Brekford shall be effective pursuant to reinstate the Offer Recommendation and the Merger Recommendation Sections 9.1(f) or (g) under circumstances in which a Termination Fee is payable by Brekford under Section 9.2(b) unless concurrently with such termination, such Termination Fee is paid in full by Brekford in accordance with its fiduciary dutiesthe provisions of Section 9.2(b).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Brekford Traffic Safety, Inc.), Agreement and Plan of Merger (Novume Solutions, Inc.)
Termination. This Agreement may be terminated and the Offer and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, Time (notwithstanding any approval of this Agreement by the shareholders stockholders of the Company:):
(a) by mutual written consent of the Company (including, from and after the Acceptance Date, the Independent Director Approval contemplated by Section 1.03(b)) and Parent, Merger Sub and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company Company:
(i) if the Effective Time Merger Sub shall not have occurred on or before accepted for payment any shares of Company Common Stock pursuant to the Offer prior to the date which that is nine months from the date hereof twenty business days following March 31, 2002 (the “Termination "Drop Dead Date”"); provided that the right to terminate this Agreement pursuant to this Section 8.1(c6.01(b)(i) shall not be available to the any party seeking to terminate if any action whose breach of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of shares of Company Common Stock to have been purchased pursuant to the Effective Time Offer by the Drop Dead Date; or
(ii) if any Governmental Entity shall have issued an order, injunction or other decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the acceptance for payment of, or payment for the Company Common Stock pursuant to occur on the Offer or before the Termination Date Merger and such order, injunction, decree or ruling or other action or failure shall have become final and nonappealable; provided that the party seeking to perform constitutes a breach of this Agreement; and provided further that terminate this Agreement may not be terminated pursuant to this clause Section 6.01(b)(ii) shall have used its commercially reasonable efforts to remove such order, decree, ruling or injunction and shall not be in violation of Section 4.05;
(c) after Parent or Merger Sub accepts Shares for payment pursuant prior to the OfferAcceptance Date by Parent if the Company shall have breached any of its representations, warranties or covenants contained in this Agreement, which breach would give rise to the failure of a condition set forth in paragraph (c) or (d) of Exhibit A and which breach has not been or is incapable of being cured by the Company prior to the Drop Dead Date;
(d) prior to the Acceptance Date by the Company if Parent or Merger Sub shall have breached in any material respect any of its obligations to be performed by either of them under this Agreement, or failed to perform any representation, warranty, covenant or agreement if the representations and warranties of Parent and Merger Sub contained in this Agreement (without giving effect shall not be true and correct, except for such failures to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), be true and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to havecorrect that, individually or and in the aggregate, are not reasonably likely to have a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 2 contracts
Sources: Merger Agreement (Matrix Pharmaceutical Inc/De), Merger Agreement (Matrix Pharmaceutical Inc/De)
Termination. This Agreement may be terminated and the Merger Reorganization contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after any approval by the shareholders stockholders of VoiceStream or Powertel of the Companymatters presented in connection with the Reorganization:
(a) by mutual written consent of Parent, Merger Sub VoiceStream and the CompanyPowertel;
(b) by Parent either VoiceStream or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;Powertel:
(ci) by either Parent or the Company if the Effective Time shall Reorganization has not have occurred been effected on or before prior to the date which is nine months from the date hereof close of business on December 31, 2001 (the “"Termination Date”"); provided that in the event both the DT Merger Agreement and the Powertel Merger Agreement shall have terminated, the Termination Date shall instead be the later of September 30, 2001 and the date that is thirty (30) days after the date of termination of the DT Merger Agreement and the Powertel Merger Agreement; provided further that the right to terminate this Agreement pursuant to this Section 8.1(c7.01(b)(i) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time Reorganization to occur have occurred on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and date; or
(ii) if any Governmental Entity shall have issued an order, decree or ruling or taken any other action (including by enacting any law or regulation) (which order, decree, ruling or other action Powertel and VoiceStream shall use its reasonable best efforts to lift) permanently enjoining, restraining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement and such breach has hadorder, decree or would reasonably be expected to haveruling or other action shall have become final and nonappealable; provided, individually or in the aggregatehowever, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d7.01(b)(ii) shall not be available to any party who has not used its reasonable best efforts to cause such order to be lifted or otherwise taken such action as is required to comply with Section 5.14;
(c) by VoiceStream if the Company is then in material breach of (i) Powertel shall have failed to comply with any of its representations, warranties, covenants or agreements contained in this Agreement required to be complied with prior to the date of such termination, except as would not reasonably be expected to have a Material Adverse Effect on VoiceStream or the transactions contemplated by this Agreement; provided further that this Agreement may , which failure to comply cannot be terminated pursuant or has not been cured within 30 days after receipt by Powertel of written notice of such failure to this Section 8.1(dcomply, (ii) after Parent the stockholders of Powertel shall not approve and adopt the Agreement at the Powertel Stockholders Meeting or Merger Sub accepts Shares for payment pursuant to any adjournment thereof, or (iii) the Offerstockholders of VoiceStream shall not approve and adopt the Agreement at the VoiceStream Stockholders Meeting or any adjournment thereof;
(ed) by Parent Powertel if there (i) VoiceStream 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 clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior failed to the earlier of (A) 30 days following notice of such breach to the Company and (B) the 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 comply with any of its representations, warranties, respective covenants or agreements contained in this Agreement required to be complied with prior to the date of such termination, except as would not reasonably be expected to have a Material Adverse Effect on Powertel or VoiceStream or the transactions contemplated by this Agreement; provided that this Agreement may , which failure to comply cannot be terminated pursuant or has not been cured within 30 days after receipt by VoiceStream of written notice of such failure to comply, (ii) the stockholders of Powertel shall not approve and adopt the Agreement at the Powertel Stockholders Meeting or any adjournment thereof; or (iii) the stockholders of VoiceStream shall not approve and adopt the Agreement at the VoiceStream Stockholders Meeting or any adjournment thereof;
(e) (i) by Powertel if there has been a breach by VoiceStream of any representation or warranty (disregarding all qualifications and exceptions contained therein relating to materiality or a Material Adverse Effect or any similar standard or qualification) except any breach that would not reasonably be expected to have a Material Adverse Effect on VoiceStream or the transactions contemplated by this Section 8.1(eAgreement, in each case which breach cannot be or has not been cured within 30 days after receipt by the breaching party of written notice of the breach and (ii) by VoiceStream if there has been a breach by Powertel of any representation or warranty (disregarding all qualifications and exceptions contained therein relating to materiality or a Material Adverse Effect or any similar standard or qualification) except any breach that would not reasonably be expected to have a Material Adverse Effect on Powertel or VoiceStream or the transactions contemplated by this Agreement, in each case which breach cannot be or has not been cured within 30 days after Parent or Merger Sub accepts Shares for payment pursuant to receipt by the Offer;breaching party of written notice of the breach; or
(f) by Parent in automatically, without any action being required of any party hereto, concurrently with the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors closing of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesDT Merger.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Powertel Inc /De/), Agreement and Plan of Reorganization (Voicestream Wireless Corp /De)
Termination. This Agreement may be terminated and the Merger transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by whether before or after the shareholders of the CompanyILG Shareholder Approval:
(a) by mutual written consent agreement of Parent, Merger Sub Starwood and the CompanyILG;
(b) by Parent Starwood or ILG, if any Law shall have been promulgated, entered, enforced, enacted or issued or shall be deemed to be applicable to the Merger or the Company if other transactions contemplated hereby by any court Governmental Authority of competent jurisdiction which permanently prohibits, restrains or other Governmental Entity located or having jurisdiction within makes illegal the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting consummation of the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)other transactions contemplated hereby; provided provided, that the right to terminate this the Agreement pursuant to this Section 8.1(c9.01(b) shall not be available to the any party seeking to terminate if any whose action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to is the Effective Time has been the primary cause of, or primarily resulted in, the enactment or issuance of any such Law;
(c) by Starwood or ILG, if the Closing shall not have occurred on or prior to October 27, 2016 (the “Outside Date”); provided, that the right to terminate the Agreement pursuant to this Section 9.01(c) shall not be available to any Party whose action or failure to comply with its obligations under this Agreement or the Separation Agreement has been the primary cause of, or has primarily resulted in, the failure of the Effective Time Closing to occur on or before the Termination Date and prior to such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerdate;
(d) by the Company if Parent or Merger Sub shall have breached or failed ILG upon written notice to perform any representationStarwood, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach event of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement Starwood or Vistana, such that the conditions set forth specified in clause (c) Section 8.01 or (d) of Exhibit A Section 8.03 would not be satisfied andat the Closing, in either such caseand which, (i) with respect to any such breach shall that is capable of being cured, is not have been cured by Starwood or Vistana by the earlier of: (x) sixty (60) days after receipt of written notice thereof (y) the Outside Date, or (ii) is incapable of being cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Outside Date; provided provided, that Parent ILG shall not have the right to terminate this Agreement pursuant to this Section 8.1(e9.01(d) if Parent or Merger Sub it is then in material breach of any of its representations, warranties, covenants or agreements contained set forth in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerextent such breach would give rise to the failure of a condition set forth in Section 8.01 or Section 8.02;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vistana Signature Experiences, Inc.), Merger Agreement (Starwood Hotel & Resorts Worldwide, 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 contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing Date:
(ai) by mutual written consent agreement of the Company and Parent, Merger Sub and the Company;
(bii) 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 Company if Significant Stockholders with respect to any court of competent jurisdiction their respective representations, warranties or other Governmental Entity located covenants in this Agreement, in each case such that the conditions set forth in Sections 7.1 or having jurisdiction within the United States shall have issued a final order7.2 hereof would not be satisfied, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such ordermisrepresentation, decreedefault or breach shall not have been cured within ten (10) days after receipt by the Company of notice specifying particularly such misrepresentation, ruling default or other action is or shall have become final and nonappealablebreach;
(civ) by either Parent or the Company or by Parent if the Effective Time Closing shall not have occurred on or before 60 days after the date which is nine months from the date hereof (the “Termination Date”)of this Agreement; provided that the right Party seeking to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking entitled to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at if its breach or prior to the Effective Time has violation of any representation, warranty or covenant contained herein shall have been the principal cause of, or resulted in, the failure of the Effective Time to occur Closing not having occurred on or before such date;
(v) by Parent if Written Consents evidencing the Termination Date Requisite Vote shall not have been delivered, properly completed and such action or failure executed to perform constitutes a breach approve the Merger, this Agreement and the documents and transactions contemplated hereby within eight (8) business days after the date of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(dvi) by the Company or by Parent, if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to there shall be a final nonappealable order of a federal or state court in effect preventing the earlier consummation of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and transactions contemplated by this Agreement; or (ii) such breach has hadthere shall be any action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the transactions by any Government Authority which would reasonably be expected make the consummation of the transactions illegal; or
(vii) by Parent if, at any time prior to havereceipt of the Requisite Vote, it shall have determined there has occurred an effect, event or change which, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect; provided that Effect on the Company shall not have Company.
(b) In the right to terminate event of the termination of this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations11.1 (a), warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares shall thereafter become void and have no effect, except that nothing herein will relieve any Party from Liability for payment pursuant to the Offer;
(e) by Parent if there shall have been a any willful breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiestermination.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior shall terminate as to the Effective Time, notwithstanding approval by the shareholders sale and issuance of the Companynew Contracts:
(a) at the option of either the Company or Twentieth Century upon 90 days' advance written notice to the other;
(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 mutual written consent of Parent, Merger Sub and the Company;
(bc) by Parent or at the option of either the Company if any court or Twentieth Century, upon institution of competent jurisdiction formal proceedings against the broker-dealer or other Governmental Entity located broker-dealers underwriting the Contracts, the Account, the Company, Investors Research or having jurisdiction within Twentieth Century by the United States shall have issued a final orderNational Association of Securities Dealers, decree Inc. (the "NASD"), the SEC or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerregulatory body;
(d) by at the Company option of Twentieth Century, if Parent or Merger Sub Twentieth Century shall have breached or failed to perform any representation, warranty, covenant or agreement contained reasonably determine in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided good faith that the Company shall is not have offering shares of the right to terminate this Agreement pursuant to this Section 8.1(d) if Fund in conformity with the Company is then in material breach terms of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part upon termination of the Company contained in Management Agreement between Twentieth Century and Investors Research, notice of which shall be promptly furnished to the Company; provided, however, that this Agreement such that the conditions set forth in clause subsection (ce) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier apply if contemporaneously with such termination a new contract of (A) 30 days following notice of such breach to the Company substantially similar terms is entered into between Twentieth Century and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferInvestors Research;
(f) by Parent upon the requisite vote of Contract owners having an interest in Twentieth Century to substitute for Twentieth Century's shares the event shares of another investment company in accordance with the terms of Contracts for which Twentieth Century's shares had been selected to serve as an underlying investment medium; provided, however, that an Adverse Recommendation Change has occurredthe Company shall give 60 days' written notice to Twentieth Century of any proposed vote to replace the Fund's shares;
(g) upon assignment of this Agreement, unless made with the written consent of all other parties hereto;
(h) if Twentieth Century's shares are not registered, issued or sold in conformance with Federal or applicable state law or such law precludes the use of Fund shares as the underlying investment medium of Contracts issued or to be issued by Parent 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 parries in the event that the Fund ceases to qualify as a willful and material breach 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 6.4 has occurred; or
(h4(c) by Parent of this Agreement, or if the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price reasonably believes in an amount sufficient good faith that such Fund may fail to permit the Board of Directors of the so qualify as a Regulated Investment Company or may fail to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesmeet 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 and the Merger contemplated hereby and the other Transactions may be abandoned at any time prior to the Effective Time, notwithstanding any requisite approval and adoption of this Agreement and the Transactions by the shareholders of the CompanyCompany or stockholders of NGA, as follows:
(a) by mutual written consent of Parent, Merger Sub NGA and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent NGA or the Company if the Effective Time shall not have occurred on or before prior to the date which that is nine months from 180 days after the date hereof (the “Termination Outside Date”); provided, however, that in the event that any Law is enacted after the date hereof extending the applicable waiting period under the HSR Act, the Outside Date shall automatically be extended by the length of any such extension; provided, further, that this Agreement may not be terminated under this Section 9.01(b) by or on behalf of any party that is in breach or violation of any representation, warranty, covenant, agreement or obligation contained herein and such breach or violation is a material cause of the failure of a condition set forth in Article VIII to be satisfied on or prior to the Outside Date;
(c) by either NGA or the Company if any Governmental Order has become final and nonappealable and has the effect of making consummation of the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions;
(d) by either NGA or the Company if the NGA Proposal set forth in clause (i) of the definition thereof shall fail to receive the requisite vote for approval at the NGA Stockholders’ Meeting (subject to any adjournment, postponement or recess of such meeting); provided that the right to terminate this Agreement pursuant to under this Section 8.1(c9.01(d) shall not be available to NGA if, at the party seeking to terminate if any action time of such party (ortermination, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and NGA (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, is in willful or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representationscovenants and agreements under Section 7.04, warrantiesor (ii) is in breach or violation of any representation, covenants warranty, covenant, agreement or agreements obligation contained in this Agreement; provided further that this Agreement may not be terminated pursuant herein and such breach or violation is a material cause of the failure of such NGA Proposal to this Section 8.1(d) after Parent or Merger Sub accepts Shares receive the requisite vote for payment pursuant to the Offerapproval;
(e) by Parent if there shall have been NGA upon a breach of any representation, warranty, covenant or agreement on the part of the Company contained or Merger Sub set forth in this Agreement Agreement, or if any representation or warranty of the Company or Merger Sub shall have become untrue, in either case such that the conditions condition set forth in clause (cSections 8.02(a) or (d8.02(b) of Exhibit A would not be satisfied and(“Terminating Company Breach”); provided, in either that NGA has not waived such case, such breach shall Terminating Company Breach and NGA is not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this AgreementAgreement such that the condition set forth in Sections 8.03(a) or 8.03(b) would not be satisfied; provided that provided, further, that, if such Terminating Company Breach is curable by the Company or Merger Sub, NGA may not terminate this Agreement may not be terminated pursuant to under this Section 8.1(e9.01(e) after Parent for so long as the Company or Merger Sub accepts Shares for payment pursuant (as applicable) continues to diligently exercise its reasonable efforts to cure such breach, unless such breach is not cured within thirty (30) days after notice of such breach is provided by NGA to the Offer;Company or Merger Sub; or
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that Company upon a willful and material breach of Section 6.4 has occurredany representation, warranty, covenant or agreement on the part of NGA set forth in this Agreement, or if any representation or warranty of NGA shall have become untrue, in either case such that the condition set forth in Sections 8.03(a) or 8.03(b) would not be satisfied (“Terminating NGA Breach”); or
(h) by Parent or provided, that the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not waived such Terminating NGA Breach and the Company or Merger Sub are not then been satisfied and in breach of its representations, warranties, covenants or agreements in this Agreement such that the condition set forth in Sections 8.02(a) or 8.02(b) would not be satisfied; provided, further, that, if such Terminating NGA Breach is curable by NGA, the Company may not terminate this Agreement under this Section 9.01(f) for so long as NGA continues to diligently exercise its reasonable efforts to cure such breach, unless such breach is not cured within thirty (y30) Parent has not increased the Offer Price in an amount sufficient to permit the Board days after notice of Directors of such breach is provided by the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesNGA.
Appears in 2 contracts
Sources: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition Corp.)
Termination. This Agreement may be terminated and the Merger contemplated hereby and the other Transactions may be abandoned at any time prior to the Effective Time, notwithstanding any requisite approval and adoption of this Agreement and the transactions contemplated hereby by the shareholders stockholders of the Company:
(a) by By mutual written consent duly authorized by the Boards of Directors of Parent, Merger Sub Purchaser and the Company;Company prior to Purchaser's Election Date; or
(b) by Parent By Parent, Purchaser or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(ci) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)December 31, 1997; provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.01(b) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date or (ii) any court of competent jurisdiction in the Termination Date United States or other governmental authority shall have issued an order, decree, 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 nonappealable; or
(c) By Parent if (i) due to an occurrence or circumstance that would result in a failure to satisfy any condition set forth in Annex A or Annex B hereto, as applicable, Purchaser shall have (A) failed to commence the Offer within five business days following the date of public announcement of the execution of this Agreement, (B) failed to commence the Note Tender Offer within 10 business days following the date of public announcement of the execution of this Agreement, (C) terminated the Offer or the Note Tender Offer without having accepted any Shares or Notes (and without having obtained related Consents), as the case may be, for payment thereunder or (D) failed to pay for Shares or Notes (and obtain related Consents) pursuant to the Offer or the Note Tender Offer, as the case may be, within 90 days following the commencement thereof; unless such action or inaction under (A), (B), (C) or (D) shall have been caused by or resulted from the failure of Parent or Purchaser to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform in any representation, warranty, material respect any material covenant or agreement of either of them contained in this Agreement (without giving effect to or the material breach by Parent or Purchaser of any limitation on any material representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice either of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company them contained in this Agreement such that the conditions set forth in clause (c) or (dii) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier purchase of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent Offer or the Company after Notes pursuant to the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Note Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit Offer, the Board of Directors or any committee thereof shall have withdrawn or modified in a manner adverse to Purchaser or Parent its approval or recommendation of the Company to reinstate the Offer Recommendation and Offer, this Agreement, the Merger Recommendation in accordance with its fiduciary duties.or any other Transaction or shall have recommended another merger, consolidation, business combination with, or acquisition of, the
Appears in 2 contracts
Sources: Merger Agreement (Ud Delaware Corp), Merger Agreement (Imo Industries Inc)
Termination. This Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Offer and the Merger contemplated hereby herein may be abandoned at any time prior to the Effective Acceptance Time, notwithstanding approval by the shareholders of the Company:
(a) by the mutual written consent of the Company and Parent, Merger Sub and the Company;
(b) by either the Company or Parent:
(i) if the Acceptance Time shall not have occurred at or prior to 11:59 p.m. (New York City Time) on November 12, 2016 (the “Termination Date”); provided, however, that (i) if the Marketing Period has commenced and is continuing, but the Acceptance Time has not yet occurred as of the Termination Date, then the Termination Date shall automatically be extended to (and shall be deemed for all purposes to be) the date that is three (3) Business Days following the then-scheduled end date of the Marketing Period; and (ii) the right to terminate this Agreement under this Section 9.1(b)(i) shall not be available to any party whose action or failure to fulfill any obligation under this Agreement proximately caused (A) any of the conditions to the Offer set forth in Annex A having failed to be satisfied or such action or failure to act constitutes a material breach of this Agreement or (B) the expiration or termination of the Offer in accordance with the terms of this Agreement and the Offer without Sub having accepted for payment any shares of Company Common Stock tendered in the Offer and such action or failure constitutes a material breach of this Agreement;
(ii) if any Governmental Entity having jurisdiction over the Company, Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Sub shall have issued a final an order, decree or ruling or taken any other final action restrainingaction, enjoining in each case, such that the conditions set forth in Section 8.1(a) or otherwise prohibiting the Merger clause (v)(a) of Annex A would not be satisfied, and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided non-appealable, provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c9.1(b)(ii) shall have used its reasonable best efforts to have such order, decree, ruling or other action avoided or lifted; or
(c) by the Company:
(i) upon a breach of any covenant or agreement on the part of Parent or Sub, or if any of the representations and warranties of Parent and the Sub shall be untrue, in any case such that any of the representations of Parent and the Sub (assuming that the date of such determination is the Closing Date) (x) set forth in Section 6.3 shall not be true and correct except for inaccuracies that have not had and would not reasonably be expected to, individually or in the aggregate, result in more than a de minimis impact on the aggregate consideration payable by Parent and Sub pursuant to this Agreement, as of immediately prior to the expiration of the Offer as though made on or as of such date (other than those representations and warranties that address matters only as of a particular date or only with respect to a specified period of time, which need only be true and correct as of such date or with respect to such period), (y) set forth in Section 6.1(a), Section 6.2 and Section 6.8 shall not be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be so true and correct in all material respects only as of such particular date or with respect to such specific period), or (z) set forth in this Agreement, other than those Sections specifically identified in clauses (x) or (y) of this Section 9.1(c)(i), shall not be true and correct as of the date of this Agreement and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be true and correct only as of such particular date or with respect to such specific period), except, in the case of this clause (z), where the failure to be so true and correct (without giving effect to any limitation as to “materiality”, “Parent Material Adverse Effect” or similar qualifications as set forth therein) would not, either individually or in the aggregate, have a Parent Material Adverse Effect, or (assuming that the date of such determination is the Closing Date) if Parent or Sub shall not have performed in all material respects all of the respective obligations hereunder required to be performed by Parent or Sub, as the case may be, at or prior to the Closing; provided, that if such breach is reasonably capable of being cured by Parent and Sub through the exercise of their reasonable best efforts within the earlier of (A) the forty-five (45) day period following notification by the Company to Parent of such breach or inaccuracy or (B) the then-scheduled expiration date of the Offer (provided, for purposes of this clause (B), Parent may extend the expiration date of the Offer up to the forty-fifth day after the notice contemplated by clause (A) in order to extend the cure period to forty-five days, provided that Parent may not extend the expiration date of the Offer beyond the Termination Date), and in each case Parent and Sub continue to exercise such reasonable best efforts, the Company may not terminate this Agreement under this Section 9.1(c)(i) prior to the expiration of such period; provided further that the right to terminate this Agreement under this Section 9.1(c)(i) shall not be available to the party seeking to terminate Company if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) it has failed to perform in any material respect any of its obligations under or in connection with 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 action or failure to perform constitutes a is in breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause clauses (cv)(c) or (dv)(d) of Exhibit Annex A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurredsatisfied; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties.
Appears in 2 contracts
Sources: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Termination. This Agreement may be terminated and the Merger and transactions contemplated hereby by this Agreement may be abandoned at any time prior to the Effective Time, notwithstanding Time (whether before or after the approval of this Agreement by the shareholders of the CompanyStockholders), as follows:
(a) by mutual written consent of the Company and Parent, Merger Sub and the Company;
(b) by either of Parent or the Company:
(1) if the Stockholders do not approve the Merger by the requisite vote at the Company's Special Meeting (including any adjournment or postponement thereof) (provided, however, the Company may not terminate pursuant to this Section 8.1(b)(1) unless following the Special Meeting it has given Parent at least twenty-four (24) hours prior written notice of Company's intention to terminate pursuant to this Section 8.1(b)(1));
(2) if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final an order, decree or ruling or taken any other final action restraining(which order, enjoining decree, ruling or other action the parties hereto shall use their reasonable efforts to lift), which permanently restrains, enjoins or otherwise prohibiting prohibits consummation of the Merger and such order, decree, ruling or other action is or shall have become final and nonappealablenon-appealable;
(c3) if there shall be any Law enacted, promulgated or issued and deemed applicable to the Merger by either Parent or any Governmental Entity which would make consummation of the Company Merger illegal; or
(4) if the Effective Time Merger shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)been consummated by September 26, 2003; provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(4) shall not be available to the any party seeking whose failure, or whose Affiliate's failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause date.
(c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if if:
(1) Parent or Merger Sub shall have breached in any material respect any of their respective representations, warranties, covenants or failed to perform any representation, warranty, covenant or agreement other agreements contained in this Agreement Agreement, which breach (without giving effect to any limitation on any representation A) cannot be or warranty indicated by the words “Parent Material Adverse Effect”has not been cured, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to within 20 business days after the earlier giving of (A) 30 days following written notice of such breach to Parent or Merger Sub, as applicable, and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or result in the aggregatefailure 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, a Parent Material Adverse Effect; provided however, 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 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 Closing Date, in which case this Agreement shall not be so terminated and the Company shall have the no further right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;8.1(c)(2).
(ed) by Parent if there if:
(1) the Company shall have been a breach of breached in any material respect any representation, warranty, covenant or other agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied andAgreement, in either such case, such which breach shall not have been cured prior to the earlier of (A) 30 cannot be or has not been cured, in all material respects, within 20 business days following after the giving of written notice of such breach to the Company and (B) would result in the Termination Datefailure to satisfy a condition set forth in Section 7.3;
(2) the Board of Directors of the Company (A) withholds or withdraws its recommendation of the Merger or, (B) modifies its recommendation of the Merger in a manner adverse to Parent;
(3) a tender offer or exchange offer for ten percent (10%) or more of the 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 Board of Directors of Company shall, notwithstanding its obligations hereunder, have (A) recommended that the Stockholders tender their shares in such tender or exchange offer or (B) 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 recommend against acceptance of such by the Stockholders (including by taking no position, or indicating its inability to take a position, with respect to the acceptance by the Stockholders of an Acquisition Proposal involving a tender offer or exchange offer) or (B) 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 transactions contemplated hereby, in each case within ten (10) business days thereafter; provided 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 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 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 the no further right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary duties8.1(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 hereby herein may be abandoned at any time prior to the Effective Time, notwithstanding whether before or after stockholder approval by the shareholders of the Companythereof:
(a) by By the mutual written consent of Parent, Merger Sub the Board of Directors of Parent and the Board of Directors of the Company;.
(b) by Parent By either of the Board of Directors of the Company or the Company Board of Directors of Parent:
(i) if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred been consummated on or before the date which is nine months from the date hereof (the “Termination Date”)December 31, 1999; provided provided, however, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b)(i) shall not be available to the any party seeking whose failure to terminate if fulfill any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations obligation under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time Merger to occur have been consummated on or before 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 Termination Date 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 restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-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 Section 8.1(b)(iii) shall not be available to any party whose failure to perform constitutes a breach of this Agreement; and provided further that fulfill any obligations under this Agreement may has been the cause of, or resulted in, the failure of such approval to have been obtained; or
(iv) if any required approval of the stockholders of the Company of the Merger and this Agreement 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 Section 8.1(b)(iv) shall not be terminated available to any party whose failure to fulfill any obligations under this Agreement has been the cause of, or resulted in, the failure of such approval to have been obtained.
(c) By the Board of Directors of Parent:
(i) if, prior to the Effective Time, the Board of Directors of Parent (or any committee thereof) shall have withdrawn, or modified or changed in a manner adverse to the Company, its approval or recommendation of the issuance of shares of Parent Common Stock pursuant to the Merger 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 clause (cSection 8.1(c)(i) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by has provided the Company if with written notice advising the Company that the Board of Directors of Parent or Merger Sub shall have breached or failed has received a Superior Proposal that it intends to perform any representationaccept, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by specifying the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), terms and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice conditions of such breach to Parent 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 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 Date Fee (as defined in Section 8.3(b) hereof); and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; further provided that the Company shall Parent may not have the right to terminate this Agreement pursuant to this Section 8.1(d8.1(c)(i) if the Company Parent is then 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 representations, warranties, material covenants or and agreements contained herein or breaches its representations and warranties in this Agreement; provided further that this Agreement may any material respect, which breach cannot be terminated pursuant to this Section 8.1(d) or has not been cured within 30 days after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) giving of written notice 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 clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Datewhich breach of a covenant, representation or warranty could reasonably be expected to result in a Company Material Adverse Effect; provided that Parent shall may not have the right to terminate this Agreement pursuant to this Section 8.1(e8.1(c)(ii) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(fd) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit 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 a Parent Acquisition Proposal or offer (B) withdrawn, modified or changed in a manner adverse to the Company its approval or recommendation of the issuance of shares of Parent Common Stock pursuant to reinstate the Offer Recommendation and the Merger Recommendation 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 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 pursuant to this Section 8.1(d)(i) if the Company is in material breach of this Agreement;
(ii) if Parent breaches its fiduciary duties.agreements contained in the first two sentences 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 material respect to perform or comply with any of its 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 hereby herein may be abandoned at any time prior to the TiVo Effective Time, notwithstanding approval by whether before or after the shareholders of TiVo Stockholder Approval and/or the CompanyRovi Stockholder Approval:
(a) by By the mutual written consent of Parent, Merger Sub Rovi and the Company;TiVo.
(b) by Parent By either of TiVo or the Company Rovi:
(i) if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within in the United States shall have issued a final order, decree or ruling or taken any other final action an Order permanently restraining, enjoining or otherwise prohibiting the Merger Transactions and such order, decree, ruling or other action is or Order shall have become final and nonappealablenon-appealable; provided, that the Principal Party seeking to terminate this Agreement pursuant to 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 breached any representations, warranties, covenants or other agreements contained in this Agreement that resulted in or caused the issuance of such Order;
(cii) by either Parent or the Company if the Effective Time Transactions shall not have occurred on or before the date which is nine months from the date hereof been consummated by October 14, 2016 (the “Termination Outside Date”); provided 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 Section 8.1(c7.1(b)(ii) shall not be available to the party seeking TiVo or Rovi if its action or failure to terminate if any action act constitutes a material breach or violation of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its covenants, agreements or other obligations under this Agreement required hereunder and such material breach or violation caused or resulted in (1) the failure to be performed at or satisfy the conditions to the obligations of the terminating Party to consummate the Merger set forth in Article VI prior to the Effective Time has been Outside Date (as the cause of, same may be extended) or resulted in, (2) the failure of the Effective Time Closing to occur on or before by the Termination Outside Date (as the same may be extended);
(iii) if the Rovi Stockholders Meeting (following any and such action or failure to perform constitutes a breach of this Agreementall adjournments and postponements) shall have finally concluded and the Rovi Stockholder Approval shall not have been obtained; and provided further provided, however, that Rovi may not terminate this Agreement may not be terminated pursuant to this clause 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) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;By TiVo:
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (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 breach has not 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 cured publicly disclosed) prior to the earlier of (Ax) 30 ten (10) calendar days following notice 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 breach to Parent and Takeover Proposal that, in the reasonable judgment of TiVo, calls into question whether the Rovi Stockholder Approval will be obtained or (BE) the Termination Date and (ii) such breach has hadRovi Board formally resolves to take or publicly announces an intention to take any of the foregoing actions; provided, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have 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 8.1(d7.1(c)(i) first arose or the Rovi Stockholder Approval shall have already been obtained;
(ii) prior to the receipt of the Rovi Stockholder Approval, if Rovi shall be in Willful Breach of its obligations pursuant to Section 5.4;
(iii) if the Company is then in material breach of Rovi shall have breached or failed to perform any of its representations, warranties, covenants or agreements contained set forth in this Agreement; provided further that this Agreement may not be terminated pursuant , which breach or failure to this Section 8.1(dperform (i) after Parent or Merger Sub accepts Shares for payment pursuant would give rise to the Offer;
(e) by Parent if there shall have been failure of a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions condition set forth in clause (cSections 6.3(a) or 6.3(b) (dassuming that the date of such determination is the Closing Date) and (ii) is incapable of Exhibit A would not being cured by Rovi by the Outside Date (as the same may be satisfied andextended); provided, in either such casehowever, such breach TiVo shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the a right to terminate this Agreement pursuant to this Section 8.1(e7.1(c)(iii) if Parent or Merger Sub it is then in material 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 6.2; or
(iv) prior to the receipt of the TiVo Stockholder Approval, so that TiVo may enter into a definitive agreement providing for a Superior Proposal.
(d) By Rovi:
(i) if (A) the TiVo Board or any committee makes, prior to the 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, (C) a tender offer or exchange offer is commenced and the TiVo 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 TiVo Board or any committee thereof shall have 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 contained 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 provided, however, that Rovi shall not have a right to terminate this Agreement may not be terminated pursuant to this Section 8.1(e7.1(d)(iii) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent if it is then in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material 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 6.4 has occurred6.1 or Section 6.3; or
(hiv) by Parent or prior to the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors receipt of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesRovi 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 contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the Companyshall forthwith terminate in circumstances where:
(a) The Optionee shall fail to comply with any of its obligations hereunder, subject to Force Majeure, and within 30 days of receipt by mutual the Optionee of written consent notice from the Optionor of Parentsuch default, Merger Sub the Optionee has not:
(i) Cured such default, or commenced proceedings to cure such default and prosecuted same to completion without undue delay; or
(ii) Given the Company;Optionor notice that it denies that such default has occurred. In the event that the Optionee gives notice that it denies that a default has occurred, the Optionee shall not be deemed to be in default until the matter shall have been determined finally through such means of dispute resolution as such matter has been subjected to by either party; or
(b) by Parent or The Optionee gives 30 days written notice of termination to the Company if Optionor, which it shall be at liberty to do at any court time after the execution of competent jurisdiction or other Governmental Entity located or having jurisdiction within this Agreement with the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting exception that the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time Optionee shall not have occurred on or before terminate the date which is nine months from agreement within 90 days prior to August 31 of any given year. If and when the date hereof (the “Termination Date”); provided that the right Optionee elects to terminate this Agreement, or terminate one of the projects comprising the Property, at such time the Property or the specific project will be returned to the Optionor. Upon the termination of this Agreement pursuant to under this Section 8.1(c) 8, the Optionee shall not cease to be available liable to the party seeking to terminate if any action Optionor in debt, damages, annual rental fees, or otherwise. Upon termination of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations this Agreement under this Agreement required to be performed at or prior Section 8, the Optionee shall vacate the Property within a reasonable time after such termination, but shall have the right of access to the Effective Time has been Property for a period of six months thereafter for the cause ofpurpose of removing its chattels, or resulted inmachinery, the failure of the Effective Time to occur on or before the Termination Date equipment and such action or failure to perform constitutes a breach fixtures. Upon termination of this Agreement; , the Optionee shall ensure that copies of all data, results and reports are provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(d) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesOptionor.
Appears in 2 contracts
Sources: Property Option Agreement (Patriot Gold Corp), Property Option Agreement (American Goldrush Corp)
Termination. This Agreement may be terminated and the Merger and the other transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval whether (except as expressly set forth in this Agreement) before or after obtaining the Company Stockholder Approval (with any termination by the shareholders of the Company:Parent also being an effective termination by Merger Sub):
(a) by mutual written consent of Parent, Merger Sub Parent and the Company;
(b) by either Parent or the Company, if:
(i) the Merger shall not have been consummated on or before December 1, 2017 (the “Initial Outside Date”); provided, however, that if on the Initial Outside Date any of the conditions to Closing set forth in Section 7.1(b) (but only if such failure to be so satisfied relates solely to an Order under any Antitrust Law) or Section 7.1(c) shall not have been satisfied or, to the extent permitted by applicable Law, waived, by all parties entitled to the benefit of such condition but all other applicable conditions to Closing set forth in Article VII shall have been satisfied or waived (except for those conditions that by their nature or terms are to be satisfied at the Closing, which conditions were capable of being satisfied at such time), then the Initial Outside Date shall be extended to March 1, 2018 if Parent or the Company notifies the other in writing on or prior to the Initial Outside Date of its election to extend the Initial Outside Date (as so extended, the “Outside Date”); provided, however, that the right to extend the Initial Outside Date or terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party if its action or failure to act constitutes a breach or violation of any court of its obligations hereunder, and such breach has been the principal cause of or directly resulted in (1) the failure to satisfy the conditions to the obligations of the terminating party to consummate the Merger set forth in Article VII prior to the Initial Outside Date or the Outside Date or (2) the failure of the Closing to occur by Initial Outside Date or the Outside Date;
(ii) any Governmental Entity of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling an Order or taken any other final action permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling Order or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)non-appealable; provided provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c8.1(b)(ii) shall not be available to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach have complied with Section 6.5 of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;or
(diii) by the Company if Parent or Merger Sub shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach Stockholder Approval shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to obtained upon a vote taken thereon at the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent Stockholders Meeting or Merger Sub is then in material breach of at any of its representations, warranties, covenants adjournment or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation postponement thereof taken in accordance with its fiduciary dutiesthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Clarcor Inc.), Merger Agreement (Parker Hannifin Corp)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, Closing (notwithstanding any approval of this Agreement by the shareholders stockholders of the Company:):
(a) by mutual written consent agreement of the Company and Parent, Merger Sub and the Company;
(b) by either the Company or Parent, if:
(i) the Merger has not been consummated on or before April 23, 2012 (subject to possible extension as provided below, the “End Date”), provided, that if the condition to the completion of the Merger set forth in Section 7.01(c) shall not have been satisfied by the End Date (as it may be extended as set forth below), but all other conditions set forth in Article 7 would be satisfied if the Closing Date were to occur on such date, then either Parent or the Company if shall be entitled to extend the End Date by a three (3) month period by written notice to the other party, and Parent shall be entitled to further extend the End Date by a second three (3) month period by written notice to the Company, it being understood that in no event shall the End Date be extended to a date that is later than the twelve month anniversary of this Agreement; provided, further, that the right to terminate this Agreement under this Section 8.01(b)(i) shall not be available to any court party whose material breach of any provision of this Agreement results in the failure of the Merger to be consummated by the End Date;
(ii) any Governmental Authority of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final an order, decree decree, injunction or ruling or taken any other final action restrainingpermanently enjoining, enjoining restraining or otherwise prohibiting the consummation of the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable, or if there shall be adopted any Applicable Law that makes consummation of the Merger illegal or otherwise prohibited; or
(iii) the Stockholder Meeting shall have been held and the Stockholder Approval shall not have been obtained thereat or at any adjournment or postponement thereof;
(c) by either Parent or Parent:
(i) if an Adverse Recommendation Change shall have occurred;
(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 6.03(b)) relating to any Acquisition Proposal;
(iii) if the Effective Time Company or any of its Representatives shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”); provided 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, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform willfully and materially breached 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 action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferSection 6.03;
(div) by if the Company if Parent Board or Merger Sub any committee thereof shall not have breached or failed to perform publicly announced that it has rejected any representation, warranty, covenant or agreement contained in this Agreement Acquisition Proposal within fourteen (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i14) such breach has not been cured prior to days of the earlier of (A) 30 days following notice of such breach to Parent the receipt thereof by the Company, and (B) the Termination Date and making public thereof (iiincluding, for these purposes, by taking no position with respect to such Company Acquisition Proposal or with respect to the acceptance by the Company Stockholders of a tender offer or exchange offer, which in either case shall constitute a failure to reject such Acquisition Proposal); or
(v) such breach has had, or would reasonably be expected to have, individually or in the aggregate, event (A) of a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained set forth in this Agreement 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, in either case such that the conditions to the Merger set forth in clause (cSection 7.02(a) or (d) of Exhibit A Section 7.02(b), respectively, would not be satisfied andas of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in either such case, the event that such breach shall not have been cured 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 earlier of End Date and within thirty (A30) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that days, then Parent shall not have the right be permitted to terminate this Agreement pursuant to this Section 8.1(e8.01(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 inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach 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 8.01(c)(v) if Parent such breach or Merger Sub inaccuracy by the Company is then cured within such thirty (30) calendar day period); or
(d) by the Company,
(i) if prior to the Stockholder Approval, the Company Board authorizes the Company, in compliance with the terms of this Agreement, including Section 6.03(e), 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 9.04 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 (i) of a material breach of any covenant or agreement on the part of its representations, warranties, covenants Parent or agreements contained Merger Subsidiary set forth in this Agreement; provided Agreement or (ii) that any of the representations and warranties of Parent and Merger Subsidiary set forth in this Agreement may shall have been inaccurate in any material respect; 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 (30) days, then the Company shall not be terminated permitted to terminate this Agreement pursuant to this Section 8.1(e8.01(d) (ii) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable, or (2) Parent or Merger Sub accepts Shares for payment Subsidiary ceasing to 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 Company may not terminate this Agreement pursuant to the Offer;
this Section 8.01(d) (fii) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material if such breach of Section 6.4 has occurred; or
(h) or inaccuracy by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if Merger Subsidiary is cured within such thirty (x30) the Majority Tender Condition has not then been satisfied and calendar day period). The party desiring to terminate this Agreement pursuant to this Section 8.01 (yother than pursuant to Section 8.01(a)) Parent has not increased the Offer Price in an amount sufficient shall give written notice of such termination to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutieseach other party hereto.
Appears in 2 contracts
Sources: Merger Agreement (Rightnow Technologies Inc), Merger Agreement (Rightnow Technologies Inc)
Termination. This Agreement may be terminated and the Merger contemplated hereby Transactions may be abandoned at any time prior to the Effective Time, notwithstanding approval by Closing upon ten (10) days written notice of such termination to the shareholders of the Companyother Party:
(a) by mutual written consent of Parent, Merger Sub ▇▇▇▇▇ and the Company▇▇▇▇▇▇;
(b) by Parent Buyer or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company Seller if the Effective Time shall Closing has not have occurred on or before prior to the date which is nine months from twelve (12) month anniversary of the date hereof Agreement Date (the “Termination Date”); provided provided, however, that if the sole reason that the Closing has not occurred is that a consent or approval required by Section 7.2(c) or Section 7.3(c) has not been obtained on or prior to such date, such date shall automatically be extended by two (2) months (the end of such two-month extension period shall then be the “Termination Date”); provided, further, that the right to terminate this Agreement pursuant to under this Section 8.1(c8.1(b) shall not be available to the party seeking to terminate if any action Party whose breach of such party (ora representation, in the case of Parentwarranty, Merger Sub) covenant or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations agreement under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted inin the failure of, the failure of the Effective Time Closing to occur on or before such date;
(c) by Buyer if (i) Seller shall have breached any of the covenants or agreements contained in this Agreement to be complied with by Seller such that any closing condition set forth in Section 7.2 could not be satisfied prior to the Termination Date and such action Date, or failure to perform constitutes (ii) there exists a breach of this Agreement; and provided further that any representation or warranty of Seller contained in this Agreement may such that any closing condition set forth in Section 7.1 could not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant satisfied prior to the OfferTermination Date;
(d) by the Company Seller if Parent or Merger Sub (i) Buyer shall have breached or failed to perform any representation, warranty, covenant or agreement contained in this Agreement (without giving effect to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of (A) 30 days following notice of such breach to Parent and (B) the Termination Date and (ii) such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of any of its representations, warranties, the covenants or agreements contained in this Agreement; provided further Agreement to be complied with by Buyer such that any closing condition set forth in Section 7.3 could not be satisfied prior to the Termination Date, or (ii) there exists a breach of any representation or warranty of Buyer contained in this Agreement may such that any closing condition set forth in Section 7.1 could not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant satisfied prior to the OfferTermination Date;
(e) by Parent Buyer or Seller if there a Governmental Authority shall have been a breach of issued an Order or instituted any representation, warranty, covenant Action or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied andProceeding, in either such case, having the effect of restraining, enjoining or otherwise prohibiting, or attempting to restrain, enjoin or otherwise prohibit, the Transactions and such breach Order shall not become a Final Order or such Action or Proceeding shall have been cured prior to become final and non-appealable; provided, that the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right Party seeking to terminate this Agreement pursuant to this Section 8.1(e) if Parent shall have used reasonable best efforts to prevent the entry of and to remove such Order or Merger Sub is then in material breach of any of its representations, warranties, covenants Action or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the OfferProceeding;
(f) by Parent in Buyer or Seller if the event that an Adverse Recommendation Change has occurred;aggregate Losses suffered or incurred by the Companies resulting from or arising out of any Order with respect to any of the Retained Actions or Proceedings shall be equal to or greater than One Hundred Thirty Million Dollars ($130,000,000.00); or
(g) by Parent in the event that a willful and material breach of Buyer pursuant to Section 6.4 has occurred; or
(h) 6.10, by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient written notice to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation Seller in accordance with its fiduciary dutiessuch Section.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Dayton Power & Light Co), Purchase and Sale Agreement (Dayton Power & Light Co)
Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval by the shareholders of the CompanyClosing by:
(a) by the mutual written consent of Parent, Merger Sub Sellers and the CompanyPurchaser;
(b) either Sellers or Purchaser, by Parent written notice to the other, if the Closing has not occurred by the close of business on June 30, 2005, and (i) the failure to consummate the transactions contemplated hereby on or before such date did not result from the Company failure by the party seeking termination of this Agreement to fulfill any undertaking or commitment provided for herein that is required to be fulfilled prior to the Closing and (ii) the party seeking termination is not otherwise in material breach of its obligations hereunder;
(c) either Sellers or Purchaser, by written notice to the other, if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States Authority shall have issued a final an order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger transactions contemplated hereby and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company if the Effective Time shall not have occurred on or before the date which is nine months from the date hereof (the “Termination Date”)non-appealable; provided provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(c11.1(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 the party seeking to terminate if any action of remove such party (or, in the case of Parent, Merger Sub) injunction order or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement; and provided further that this Agreement may not be terminated pursuant to this clause (c) after Parent or Merger Sub accepts Shares for payment pursuant to the Offerdecree;
(d) 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 Company if Parent or Merger Sub date which Purchaser has completed its due diligence investigation of the Purchased Assets, in the event that Purchaser in connection with such investigation, shall have breached discovered any fact, circumstance, transaction or failed occurrence of which Purchaser had no notice as of the date hereof and as a result of which Purchaser would be entitled (and Purchaser would otherwise have the right) to perform any representationdecline to consummate the transactions contemplated hereby based solely upon Section 9.3(f) hereof; provided, warrantyhowever, covenant or agreement contained in 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 (without giving effect to any limitation on or deemed breach) of any representation or warranty indicated as a result of which Purchaser would be entitled to rely on such Section 9.3(f) in declining to consummate such transactions, or is not satisfied with its findings; or
(e) Purchaser or Sellers, by written notice to the words “Parent Material Adverse Effect”other party (or parties, “in all material respects”, “in any material respect”, “material” or “materially”as applicable), and (i) such breach at any time after June 30, 2005, in the event that Purchaser has not been cured prior to executed an agreement with the earlier of (ALocal Union meeting the description set forth in Section 9.3(h) 30 days following notice of hereof on or before such breach to Parent and (B) the Termination Date and (ii) such breach has haddate; provided, or would reasonably be expected to havehowever, individually or in the aggregate, a Parent Material Adverse Effect; provided that the Company Purchaser shall not have the right be entitled to terminate this Agreement pursuant to this Section 8.1(d11.1(e) if Purchaser fails to use all reasonable efforts, acting as promptly as practicable and in good faith, to enter into an agreement with the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided further that this Agreement may not be terminated pursuant to this Section 8.1(d) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement Local Union on the part of the Company contained in this Agreement such that the conditions set forth in clause (cterms contemplated by Section 9.3(h) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; provided that this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment pursuant to the Offer;
(f) by Parent in the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutieshereof.
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 and other transactions contemplated hereby may be abandoned at any time prior to the Effective Time, notwithstanding approval whether before or after the Company Stockholder Approval has been obtained (with any termination by the shareholders of the Company:Parent also being an effective termination by Merger Sub):
(a) by mutual written consent of Parent, Merger Sub Parent and the Company;
(b) by Parent or the Company if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable;
(c) by either Parent or the Company Company:
(i) if the Effective Time Merger shall not have occurred been consummated on or before the date which that is nine six months from after the date hereof of this Agreement (the “Termination Outside Date”); provided provided, that, if on such Outside Date, all of the conditions to Closing, other than the conditions set forth in Section 6.1(b) (to the extent any such injunction or order is in respect of, or any such Law is, the HSR Act) and Section 6.1(c) and those conditions that by their nature are to be satisfied at Closing (but provided, further that such conditions shall then be capable of being satisfied if the Closing were to take place on such date), shall have been satisfied or waived, then the Outside Date shall be extended for all purposes hereunder for an additional three months, and the date on which such additional three months ends shall thereafter be deemed to be the Outside Date; provided, further, that if the Marketing Period shall have commenced but not been completed by the date that is three Business Days prior to the Outside Date, then the Outside Date shall be extended to the third Business Day following the final day of the then current Marketing Period; and provided, further, that neither party shall have the right to terminate this Agreement pursuant to this Section 8.1(c7.1(b)(i) shall not be available to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has act shall have been the cause of, or resulted in, the failure of the Effective Time Merger to occur on or before be consummated by the Termination Outside Date and such action or failure to perform act constitutes a breach of this Agreement;
(ii) if any court of competent jurisdiction or other Governmental Entity shall have enacted any Law, or issued any judgment, order, injunction, rule or decree, or taken any other action permanently restraining, enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement and such Law, judgment, order, injunction, rule, decree or other action shall have become final and nonappealable; and provided further that the right to terminate this Agreement may under this Section 7.1(b)(ii) shall not be terminated pursuant available to a party if the issuance of such law, judgement, order, injunction, rule, decree or taking of such action was due to the failure of such party to perform any of its obligations under this clause Agreement; or
(iii) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the matters constituting the Company Stockholder Approval was taken (such failure to obtain the Company Stockholder Approval at such a meeting, a “Vote-Down” );
(c) after Parent or Merger Sub accepts Shares for payment pursuant to by the Offer;Company:
(di) by the Company if Parent or Merger Sub shall have breached or failed to perform any representationof its representations, warrantywarranties, covenant covenants or agreement contained agreements set forth in this Agreement (without giving effect Agreement, which breach of failure to any limitation on any representation or warranty indicated by the words “Parent Material Adverse Effect”, “in all material respects”, “in any material respect”, “material” or “materially”), and (i) such breach has not been cured prior to the earlier of perform (A) 30 days following notice would result in the failure of such breach to Parent a condition set forth in Section 6.1 or 6.2 and (B) cannot be cured by the Termination Date Outside Date; provided, that the Company shall have given Parent written notice, delivered at least 25 days prior to such termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(c)(i) and (ii) the basis for such breach has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effecttermination; provided further, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d7.1(c)(i) if the Company it is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(ii) at any time prior to the time the Company Stockholder Approval is obtained, in order to enter into an Alternative Acquisition Agreement that is a Superior Proposal in compliance with Section 5.4(d), if prior to or concurrently with such termination, the Company pays the fee due under Section 7.3 and the Company shall not have materially breached the obligations set forth in Section 5.4(a) in respect of such Acquisition Proposal.
(d) by Parent:
(i) if the Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements contained set forth in this Agreement, which breach of failure to perform (A) would result in the failure of a condition set forth in Section 6.1 or 6.3 and (B) cannot be cured by the Outside Date; provided further provided, that Parent shall have given the Company written notice, delivered at least 25 days prior to such termination, stating the Company’s intention to terminate this Agreement may not be terminated pursuant to this Section 8.1(d7.1(d)(i) after Parent or Merger Sub accepts Shares and the basis for payment pursuant to the Offer;
(e) by Parent if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in clause (c) or (d) of Exhibit A would not be satisfied and, in either such case, such breach shall not have been cured prior to the earlier of (A) 30 days following notice of such breach to the Company and (B) the Termination Datetermination; provided further, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e7.1(d)(i) if Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained set forth in this Agreement; provided that or
(ii) if, prior to the time the Company Stockholder Approval is obtained, the Company Board shall have effected an Adverse Recommendation Change. The party desiring to terminate this Agreement may not be terminated pursuant to this Section 8.1(e) after Parent or Merger Sub accepts Shares for payment 7.1 (other than pursuant to Section 7.1(a)) shall give notice of such termination to the Offer;
(f) by Parent in other party specifying the event that an Adverse Recommendation Change has occurred;
(g) by Parent in the event that a willful provision of this Agreement pursuant to which such termination and material breach of Section 6.4 has occurred; or
(h) by Parent or the Company after the twentieth Business Day following an Adverse Recommendation Change if (x) the Majority Tender Condition has not then been satisfied and (y) Parent has not increased the Offer Price in an amount sufficient abandonment is intended to permit the Board of Directors of the Company to reinstate the Offer Recommendation and the Merger Recommendation in accordance with its fiduciary dutiesbe effected.
Appears in 2 contracts
Sources: Merger Agreement (Bluegreen Vacations Holding Corp), Merger Agreement (Hilton Grand Vacations Inc.)