By Cardinal. Cardinal shall have the right, without cause, no more than one (1) time in any twelve (12) month period upon reasonable notice and during normal business hours, to review such records of Adams, or to have a third-party consultant review such records of Carxxxxx, as may be necessary to verify the accuracy of the amounts paid by Adams to Cardinal hereunder; provided, however, that Cardinal shall hxxx xdditional rights of review and audit as shall be necessary to the extent that Cardinal shall have a reasonable basis and need for such additional reviews and audits. Should such review disclose any underpayment by Adams, then, at Cardinal's sole option, Adams shall either pay to Carxxxxx the amount of such underpayment, ox Xxxdinal may setoff the amount of such overpayment against any amounts owed by Cardinal or one of its Affiliates to Adams or one of its Affiliates. Cardinal shall pay all fees of the acxxxxxants or other personnel performing such verification unless it discloses any understatement of amounts invoiced of more than two percent (2%), in which case Adams shall bear all reasonable costs of the audit.
By Cardinal. (i) if Sarg shall have breached or failed to perform any of its representations, warranties or covenants contained in this Agreement, which breach or failure to perform (A) is incapable of being cured by Sarg prior to the Outside Date or otherwise is not cured by the earlier of (x) twenty (20) Business Days following written notice to Sarg by Cardinal of such breach or (y) the Business Day prior to the Outside Date and (B) would result in a failure of any condition set forth in Section 6.2(a) or Section 6.2(b);
(ii) if Sarg shall have breached in any material respect any of its obligations under Section 5.4;
(iii) if the Sarg Board has effected a Sarg Adverse Recommendation Change; or
(iv) if, prior to the Cardinal Shareholder Approval, the Cardinal Board determines to enter into a definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, but only if (x) Cardinal is permitted to terminate this Agreement and accept such Superior Proposal pursuant to Section 5.4(b), and (y) immediately prior to or substantially concurrently with such termination, Cardinal shall pay the Cardinal Termination Fee to Sarg pursuant to Section 7.3(b).
By Cardinal. 41 (b) By MFC................................................................................ 42 9.02. Procedure for Claiming Indemnification........................................................ 42
By Cardinal. Cardinal agrees that, in the event this Agreement is terminated for any reason and the Merger is not consummated, it will indemnify, hold harmless and defend MFC and its officers, directors, attorneys, financial advisors and consultants from and against any and all claims, disputes, demands, causes of action, suits or proceedings of any third party (including any Regulatory Authority), together with all losses, damages, liabilities, obligations, costs and expenses of every kind and nature in connection therewith (including without limitation reasonable attorneys' fees and legal costs and expenses in connection therewith), whether known or unknown, and whether now existing or hereafter arising, which may be threatened against, incurred, undertaken, received or paid by MFC:
(i) in connection with or which arise out of, result from, or are based upon (A) Cardinal's or Xxxxx'x operations or business transactions or its relationship with any of its employees, or (B) Cardinal's or Xxxxx'x failure to comply with any statute or regulation of any federal, state or local government or agency (or any political subdivision thereof) in connection with the transactions described in this Agreement;
(ii) in connection with or which arise out of, result from, or are based upon any fact, condition or circumstance that constitutes a breach by Cardinal of, or any inaccuracy, incompleteness or inadequacy in, any of its representations or warranties under or in connection with this Agreement, or any failure of Cardinal to perform any of its covenants, agreements or obligations under or in connection with this Agreement; or,
(iii) in connection with or which arise out of, result from, or are based upon any information provided by Cardinal which is included in the Proxy Statement and which information causes the Proxy Statement at the time of its mailing to Cardinal's and MFC's shareholders to contain any untrue statement of a material fact or to omit any material fact required to be stated therein or necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not false or misleading.
