By Acquiror. (i) if the Merger and the Transactions fail to receive the approval required by Applicable Law, by vote (or to the extent permitted by Applicable Law, by consent) of the Stockholders;
(ii) in the event (A) neither Acquiror nor Acquiror Merger Subsidiary is in breach of this Agreement and none of their representations or warranties shall have become and continue to be untrue in any material respect, unless such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, and (B) either (I) the Company is in breach of this Agreement or any of its representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date, (II) the Company's independent accountants shall have failed to deliver written consents (or any "comfort letters", representation letters or other documents customarily requested by underwriters in connection with an underwritten offering of securities or by initial purchasers in connection with a private placement of securities) relating to the Company's provision, pursuant to and in accordance with Section 5.2(e), of consolidated financial statements for the Company in connection with any registration statement or other public filing of Acquiror under the Securities Act and the Exchange Act, or any other offering circular or document used by Acquiror in any other offering, whether public or private, (III) the Merger and the Transactions have not been consummated prior to the Termination Date, or (IV) the Principal Stockholder is in breach of the Stockholder Agreement or any of his representations or warranties shall have become and continue to be untrue in any material respect, unless, in either case, such breach or untruth is capable of being cured by and will not prevent or delay consummation of the Merger by or beyond the Termination Date; or
(iii) if (A) the Board of Directors of the Company shall (I) withdraw, modify or change its recommendation so that it is not in favor of this Agreement, the Merger or the Transactions, or shall have resolved to do any of the foregoing, or (II) have recommended or resolved to recommend to the Stockholders any Other Transaction, or (B) the Company shall have entered into or agreed to enter into any Other Transaction.
By Acquiror. Between the Effective Date and the Closing Date, Acquiror shall give prompt notice to Transferor in the event Acquiror becomes aware of (i) any fact or condition that causes or constitutes a Breach of any representation or warranty of Acquiror set forth herein as of the Effective Date, (ii) any fact or condition that would cause or constitute a Breach of any such representation or warranty had such representation or warranty been made as of the time of occurrence or discovery of such fact or condition, (iii) the occurrence of any Breach of any covenant of Acquiror in this Agreement, or (iv) the occurrence of any event that Acquiror believes will make the satisfaction of any of the conditions set forth in Section 5 impossible or unlikely. In the event that any fact or condition of the type described in the foregoing clause (i) or (ii) would have required any change in any of the Schedules or Exhibits to this Agreement if such fact or condition had occurred or been known as of the Effective Date, Acquiror shall promptly deliver to Transferor a supplement to such Schedule or Exhibit specifying the necessary change.
By Acquiror. In the event the Acquiror (i) breaches or is deemed to have breached any of the representations and warranties contained in this Agreement or (ii) fails to perform or comply with any of the covenants and agreements set forth in this Agreement, then the Acquiror shall hold harmless, indemnify and defend Transferor, and each of its directors, officers, shareholders, attorneys, representatives and agents, from and against any Damages incurred or paid by Transferor to the extent such Damages arise or result from a breach by the Acquiror of any such representations and warranties or a violation of any covenant in this Agreement.
By Acquiror. (i) Acquiror shall give prompt notice to Company of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, or any failure of Acquiror to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement.
(ii) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the Effective Time and termination of this Agreement pursuant to its terms, Acquiror shall give prompt notice to Company of any material notice or other material communication received by it from any Governmental Entity in connection with the transactions contemplated by this Agreement.
(iii) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the Effective Time and termination of this Agreement pursuant to its terms, Acquiror shall promptly advise Company orally and in writing of any litigation commenced after the date hereof against Acquiror or any of its directors by any of its current or former shareholders (on their own behalf or on behalf of the Acquiror) relating to this Agreement, the Acquisition or the other transactions contemplated hereby and shall keep Company reasonably informed on a current basis regarding any such litigation. Acquiror shall give the Company the opportunity to consult regarding the defense or settlement of any such shareholder litigation and shall consider the Company’s views with respect to such shareholder litigation.
By Acquiror. (i) if Seller breaches any of its representations and warranties or covenants contained in this Agreement, which breach (A) would give rise to the failure of a condition set forth in Article VI and (B) cannot be or has not been cured within 60 days after the giving of written notice to Seller of such breach; or
(ii) if any of the conditions set forth in Sections 6.01 or 6.02 becomes incapable of fulfillment, and have not been waived by Acquiror to the extent waivable; provided, however, that the Party seeking termination pursuant to clause (c)(i), (c)(ii), (d)(i), or (d)(ii) is not in material breach of any of its representations, warranties or covenants contained in this Agreement.
By Acquiror. Acquiror hereby represents and warrants to Seller as follows:
By Acquiror. Each party hereto shall: (i) notify the other parties (within one (1) business day) and in writing (as promptly as practicable) if any inquiries or proposals, including a request for information, regarding a Competing Transaction for such party are received by such party, or, to the knowledge of such party, by any of such party's respective Representatives; (ii) include in such notice the identity of the person making any such inquiry or proposal, the material terms of such inquiry or proposal and, if in writing, shall promptly deliver or cause to be delivered to such other party a copy of such inquiry or proposal, along with all other documentation and related correspondence; and (iii) keep such other parties informed, on a current basis, of the nature of any such inquiries and the status and terms of any such proposals, including any amendments or proposed amendments thereto.
By Acquiror. From and after the Effective Time and subject to the limitations contained in Section 9.2, Acquiror will indemnify and hold the Stockholders harmless against any Damage that the Stockholders have incurred by reason of the breach by Acquiror or Merger Sub of any representation, warranty, covenant or agreement of Acquiror or Merger Sub contained in this Agreement that occurs during the Escrow Period. A release of Escrow Shares in the amount of such Damages (and corresponding offset against any Damages otherwise assertable by Acquiror against Escrow Shares) shall be the Stockholders' sole and exclusive remedy for any such breach by Acquiror or Merger Sub, provided, however, that nothing in this Agreement shall be construed as limiting the liability of the Acquiror for any Damages relating to Acquiror's willful misconduct in connection with the representations and warranties set forth herein and the transactions contemplated under this Agreement or fraud.
By Acquiror. The Acquiror will indemnify each Holder with respect to which registration, qualification or compliance has been effected pursuant to this Agreement, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation or alleged violation by the Acquiror of the Securities Act, or the Securities Exchange Act of 1934, as amended (the "1934 Act"), or any rule or regulation promulgated under the Securities Act or the 1934 Act applicable to the Acquiror in connection with any such registration, qualification or compliance, and the Acquiror will reimburse each such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that the Acquiror will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Acquiror by an instrument duly executed by such Holder, controlling person or underwriter and stated to be specifically for use therein. If the Holders are represented by counsel other than counsel for the Acquiror, the Acquiror will not be obligated under this Section 6(a) to reimburse legal fees and expenses of more than one separate counsel for Holders.
By Acquiror. From and after the Effective Time and subject ----------- to the limitations contained in Section 8.3, Acquiror will indemnify and hold the Stockholders harmless against any Damage that the Stockholders have incurred by reason of the breach or alleged breach by Acquiror or Merger Sub of any representation, warranty, covenant or agreement of Acquiror or Merger Sub contained in this Agreement, up to the monetary value of the Escrow Fund (determined by multiplying the number of Escrow Shares by the average closing price of Acquiror's stock over the ten trading day period ending on the day immediately prior to the Closing). Such indemnification shall be the Stockholders' sole and exclusive remedy for any such breach by Acquiror or Merger Sub.
