By Parent. (i) if, due to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement; (ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or (iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.
Appears in 3 contracts
Samples: Merger Agreement (Emusic Com Inc), Merger Agreement (Universal Music Group Inc), Merger Agreement (Emusic Com Inc)
By Parent. (i) if, due to an occurrence that if occurring after the commencement occurrence, not involving a breach by Parent or Purchaser of the Offer would result in a substantial likelihood of a failure their obligations hereunder, which makes it impossible to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable partieshereto, Parent, Purchaser, or any of their affiliates Affiliates shall have failed to commence the Offer on or prior to ten (10) the fifth business days day following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) if, prior to the purchase of Shares by Purchaser pursuant to the Offer, the Company Board of Directors of the Company or any committee thereof shall have withdrawn (A) withdrawn, modified or modified, or proposed publicly to withdraw or modify, changed in a manner adverse to Parent or Purchaser its approval or recommendation of the TransactionsOffer, this Agreement or the Merger, (B) recommended an Acquisition Proposal, (C) executed an agreement in principle or definitive agreement relating to an Acquisition Proposal or similar business combination with a person or entity other than Parent, Purchaser or their Affiliates, or failed (D) exercised its rights pursuant to reconfirm Section 5.5 with respect to an Acquisition Proposal, and, directly or through its recommendation within three (3) representatives, continued discussions with any third party concerning an Acquisition Proposal for more than ten business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover the date of receipt of such Acquisition Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or;
(iii) if prior to the representations and warranties purchase of Shares pursuant to the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respectOffer, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached any representation, warranty, covenant or failed other agreement contained in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement which (x) would give rise to be performed the failure of a condition set forth in paragraph (f) or complied with by it(g) of Annex A hereto, which inaccuracy or breach and (y) cannot be cured following three (3) business days' notice thereof or has not been cured within one business day 30 days after the giving of written notice to the Company; or
(iv) if the Disclosure Schedule as delivered to Parent pursuant to Article III hereof shall reveal matters or information that are material and adverse to the Company and the Company shall not have disclosed such matters or information to Parent on or prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such datehereof.
Appears in 2 contracts
Samples: Merger Agreement (Shopping Com), Merger Agreement (Compaq Interests Inc)
By Parent. (i) if, due if at any time prior to an occurrence that if occurring after the commencement Consummation of the Offer Offer, the Company has breached any representation or warranty, or prior to the Effective Time has breached any covenant or other agreement contained in this Agreement, which (A) would result in a substantial likelihood give rise to the failure of a failure to satisfy any of the conditions condition set forth in clause (c) of Annex A hereto on I, (B) cannot be or has not been cured within the Expiration Date applicable Cure Period therefor or by the Termination Date, whichever is earlier, and such conditions shall (C) has not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed Parent pursuant to commence the Offer on or prior to ten provisions hereof (10) business days following the date of the initial public announcement of the Offer; provided, provided that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(iclause (i) if either Parent or Purchaser is then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement);
(ii) if at any time prior to Consummation of the Offer, (iA) the Company, or the Company's Board of Directors Directors, as the case may be, shall have (w) after the date hereof, entered into any agreement, other than a confidentiality/standstill agreement permitted under Section 8.5, with respect to any Takeover Proposal other than the Offer or the Merger, (x) amended, conditioned, qualified, withdrawn, modified or contradicted or resolved to do any of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modifyforegoing, in a manner adverse to Parent or Purchaser, its approval or and recommendation of the TransactionsOffer, the Merger and this Agreement (regardless of whether such action was permitted under this Agreement), (y) approved or recommended any Takeover Proposal other than the Offer or the Merger or (z) failed to reject any Takeover Proposal or amended Takeover Proposal within the applicable Rejection Period therefor (except that Parent may not terminate this Agreement pursuant to this clause (z) prior to the Initial Expiration Date), or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (iiB) the Company or the Company's Board of Directors of the Company or any committee thereof shall have resolved to take do any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposalforegoing; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed breaches in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.its obligations under Section 8.5 hereof; or
Appears in 2 contracts
Samples: Merger Agreement (Cemex Sa De Cv), Merger Agreement (Cemex Sa De Cv)
By Parent. (i) if, due if the Company shall have breached or failed to an occurrence that if occurring after the commencement perform any of their covenants or other agreements under this Agreement or any of the Offer representations and warranties of the Company in this Agreement shall have become inaccurate, in any such case where such breach, failure to perform or inaccuracy (A) would result in a substantial likelihood failure of a failure to satisfy any of the conditions condition set forth in Annex A hereto on Section 2.2(a) or Section 2.2(b) (assuming for this purpose that the Expiration Closing were to occur at such time) and (B) cannot be cured by the End Date or, if curable, is not cured within forty five (45) Business Days following Parent’s delivery of written notice to the Company stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(d)(i) and the basis for such conditions termination (it being understood and hereby agreed that (x) this Agreement may not be terminated pursuant to this Section 8.1(d)(i) if any such breach, failure to perform or inaccuracy is cured within such forty five (45) Business Day period and (y) this Section 8.1(d)(i) will not modify or preclude any party’s termination rights pursuant to Section 8.1(b)(i)); provided, however, that Parent shall not have been waived by all applicable parties, Parent, Purchaser, a right to terminate this Agreement pursuant to this Section 8.1(d)(i) if Parent or Merger Sub is then in material breach of any of their affiliates shall have failed to commence the Offer on representations, warranties, agreements or covenants in this Agreement; or
(ii) prior to ten (10) business days following the date receipt of the initial public announcement Company Stockholder Approval, if the Company Board effects a Change of the OfferRecommendation; provided, however, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i8.1(d)(ii) if Parent fails to terminate this Agreement pursuant to this Section 8.1(d)(ii) prior to 11:59 p.m., Eastern Time on the date which is ten (10) Business Days after Parent is notified in material breach of this Agreement;
(ii) if (i) the Board of Directors of writing that the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in Board has effected a manner adverse to Parent its approval or recommendation Change of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such dateRecommendation.
Appears in 2 contracts
Samples: Merger Agreement (Sailpoint Technologies Holdings, Inc.), Merger Agreement (Sailpoint Technologies Holdings, Inc.)
By Parent. (i) ifif Company shall have breached or failed to perform any of its representations, due warranties, covenants or agreements set forth in this Agreement, which breach or failure to an occurrence that perform, either individually or in the aggregate, if occurring after continuing at the commencement of the Offer Effective Time (A) would result in a substantial likelihood the failure of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date Section 6.1 or 6.2 (a “Company Terminating Breach”) and such conditions shall (B) cannot have be or has not been cured or waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten Outside Date (10) business days following the date of the initial public announcement of the Offeras extended); provided, that Parent may shall not have the right to terminate this -------- Agreement pursuant to this Section 7.1(d)(i7.1(c)(i) if a Parent is in material breach Terminating Breach shall have occurred and be continuing at such time Parent delivers notice of its election to terminate this Agreement;Agreement pursuant to this Section 7.1(c)(i); or
(ii) prior to obtaining the Shareholder Approval if Company or the Company Board shall (iA) have effected an Adverse Recommendation Change, (B) if after the date hereof any Person shall have publicly announced an Acquisition Proposal or an intention (whether or not conditional) to make an Acquisition Proposal, or if any such Acquisition Proposal or intention shall have otherwise become publicly disclosed, fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of Directors being requested to do so by Parent following the date of such Acquisition Proposal, (C) have materially breached Section 5.2, (D) fail to include the Company Board Recommendation in the Proxy Statement or (E) approve, adopt, publicly endorse or recommend, or enter into or allow Company or any committee thereof shall have withdrawn or modified, or proposed publicly of its Subsidiaries to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters enter into a definitive agreement providing for a Superior Proposalfor, an Acquisition Proposal (other than an Acceptable Confidentiality Agreement); or
(iii) if the representations and warranties any Governmental Entity of the Company set forth in this Agreement that are qualified by materiality competent jurisdiction shall not be true and correct in have issued a judgment, order, injunction, rule or decree or taken any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respectsother action, in each case as of the date of this Agreement under any Antitrust Law, imposing a Substantial Detriment and as of the Expiration Date as if made on such datejudgment, order, injunction, rule, decree or the Company other action shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, become final and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.nonappealable; or
Appears in 2 contracts
Samples: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
By Parent. (i) if, due to an occurrence that if occurring after upon a breach of any covenant or agreement on the commencement part of the Offer would result Company set forth in a substantial likelihood this Agreement, or if any representation or warranty of a failure to satisfy any of the Company shall have become untrue, in either case such that the conditions set forth in Annex A hereto on Section 6.1 would not be satisfied, provided that if such inaccuracy in the Expiration Date Company’s representations and such conditions shall not have been waived warranties or breach by all applicable partiesthe Company is curable by the Company, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that then Parent may not terminate this -------- Agreement under this Section 8.1(e) prior to the Termination Date, provided the Company exercises commercially reasonable efforts to cure such breach; and provided further that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(d)(i8.1(e)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement;.
(ii) if a Triggering Event, as defined below, shall have occurred. For the purposes of this Agreement, a “Triggering Event” shall be deemed to have occurred if: (i) the Board a Change of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, Recommendation has occurred and is continuing; (ii) the Board of Directors of the Company or any committee thereof shall have resolved failed to take any comply with the second to last sentence of the foregoing actions, or Section 4.4(a); (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if shall have failed to include in the representations and warranties Proxy Statement/Prospectus the recommendation of the Board of Directors of the Company set forth in favor of adoption of this Agreement that are qualified by materiality shall not be true and correct in any respect, or if Agreement; (iv) the representations and warranties Board of Directors of the Company set forth fails publicly to reaffirm its recommendation in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as favor of the date adoption of this Agreement and as within five (5) business days after Parent requests in writing that such recommendation be reaffirmed at any time following the public announcement of an Acquisition Proposal; (v) the Expiration Date as if made on such date, or Board of Directors of the Company shall have breached approved or failed in publicly recommended any material respect to perform Acquisition Proposal; or comply with (vi) the Company shall have entered into any material obligationletter of intent or similar document or any agreement, agreement contract or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of commitment accepting any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.Acquisition Proposal; or
Appears in 2 contracts
Samples: Merger Agreement (Onstream Media CORP), Merger Agreement (Narrowstep Inc)
By Parent. (i) if, due to an a circumstance or occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure make it impossible to satisfy any one or more of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable partieshereto, Parent, Purchaser, or any of their affiliates Parent shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offerprovided therefor in Section 1.1; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent Parent, its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actionsTransactions; provided, or (iii) however, that Parent may only exercise this termination right prior to the Company enters into a definitive agreement providing for a Superior ProposalPurchase Date; or
(iii) if (A) there shall have occurred any events or changes that, individually or in the aggregate, have had or would reasonably be expected to have a Company Material Adverse Effect or (B)(x) the representations and warranties of the Company set forth in this Agreement that are qualified by materiality as to "materiality" or "Material Adverse Effect" shall not be true and correct in any respectcorrect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case case, on and as of the Execution Date and on and as of the date of this Agreement and as of the Expiration Date such determination as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three date (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for other than those representations and warranties that address matters only as of a particular date which are true and correct as of such date), or (y) the Company shall have breached or failed in any material respect to perform or comply with any obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy, breach or failure (in each case under clauses (x) and (y)) cannot be cured or has not been cured by the later of (I) the next scheduled expiration date of the Offer pursuant to Section 1.1 and (II) ten business days after the Company receives notice of such inaccuracy, breach or failure; provided, however, that Parent may only exercise this termination right prior to the Purchase Date.
Appears in 2 contracts
Samples: Merger Agreement (Wiltel Communications Group Inc), Merger Agreement (Leucadia National Corp)
By Parent. (i) ifif the Company shall have breached or failed to perform any of its representations, due warranties, covenants or agreements set forth in this Agreement (other than with respect to an occurrence that a material breach of Section 5.2(a) or Section 5.4(b), as to which Section 7.1(c)(ii)(C) will apply), or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring after or continuing at the commencement of the Offer Effective Time (A) would result in a substantial likelihood the failure of a failure to satisfy any of the conditions set forth in Annex A hereto on Section 6.1 or Section 6.2 and (B) cannot be or has not been cured by the Expiration earlier of (1) the Outside Date and (2) 30 days after the giving of written notice to the Company of such conditions shall not have been waived by all applicable parties, Parent, Purchaser, breach or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offerfailure; provided, that Parent may shall not have the right to terminate this -------- Agreement pursuant to this Section 7.1(d)(i7.1(c)(i) if Parent Parent, Merger Sub or Merger Sub I is then in material breach of any of its covenants or agreements set forth in this AgreementAgreement such that Section 6.3(a) or Section 6.3(b) would not be satisfied;
(ii) if (iA) a Company Adverse Recommendation Change shall have occurred, (B) the Board Company shall have failed to publicly reaffirm its recommendation for the Merger within ten (10) Business Days after the date a Company Acquisition Proposal or any material modification thereto is first announced, distributed or disseminated to the Company’s stockholders upon a request to do so by Parent, (C) the Company shall have materially breached or failed to perform in any material respect any of Directors of its obligations set forth in Section 5.2(a) or Section 5.4(b), or (D) the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company Board (or any committee thereof thereof) shall have formally resolved or publicly authorized or proposed to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if at any time prior to obtaining the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respectsParent Stockholder Approval, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company order to accept a Parent Superior Proposal in accordance with Section 5.3(c); provided that Parent shall have breached or failed in any material respect to perform or comply (A) simultaneously with any material obligationsuch termination entered into the associated Parent Alternative Acquisition Agreement, agreement or covenant required by this Agreement to be performed or (B) otherwise complied with by itall provisions of Section 5.3(c), which inaccuracy or breach cannot be cured following three (3) business days' including the notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreementprovisions thereof, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date(C) paid any amounts due pursuant to Section 7.3(c).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Urs Corp /New/), Merger Agreement (Aecom Technology Corp)
By Parent. (i) ifif the Company shall have breached or failed to perform any of its representations, due warranties, covenants or agreements set forth in this Agreement (other than with respect to an occurrence that a breach of Section 5.3 or 5.4(b), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring after or continuing at the commencement of the Offer Effective Time, (A) would result in a substantial likelihood the failure of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date Section 6.1 or 6.2 and such conditions shall (B) cannot have be or has not been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer cured on or prior to ten the earlier of (101) business days following the date day immediately before the Outside Date and (2) the 30th day after the giving of written notice to the initial public announcement Company of the Offersuch breach or failure; provided, that Parent may shall not have the right to terminate this -------- Agreement pursuant to this Section 7.1(d)(iparagraph (i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;
(ii) (A) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.3, or (B) if the Company shall have breached or failed to perform in any material respect any of its obligations set forth in Section 5.4(b), and, in the case of this clause (B), such breach or failure cannot be or has not been cured on or prior to the earlier of (1) the day immediately before the Outside Date and (2) the 10th day after the giving of written notice to the Company of such breach or failure; provided, that Parent shall not have the right to terminate this Agreement pursuant to this paragraph (ii) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(iii) if (iA) the Board of Directors of an Adverse Recommendation Change occurs, (B) the Company or the Company Board (or any committee thereof thereof) shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposalor cause or permit the Company to enter into, an Alternative Acquisition Agreement, (iiC) the Board Company fails publicly to reaffirm its recommendation of Directors the Merger within 10 Business Days after the date any Acquisition Proposal or any material modification thereto is first commenced, published or sent or given to the Company’s shareholders upon a request to do so by Parent (which request may only be given once with respect to each of any such Acquisition Proposal or any such material modification), or (D) the Company or the Company Board (or any committee thereof thereof) shall have resolved formally resolve or publicly authorize or propose to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.;
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
By Parent. (i) if, due to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors receipt of the Company Stockholder Approval, in the event that (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company Board or any committee thereof shall have withdrawn failed to include the Company Recommendation in the Joint Proxy Statement distributed to stockholders, (C) if, following the disclosure or modifiedannouncement of a Takeover Proposal with respect to the Company (other than a tender or exchange offer described in clause (D) below), the Company Board shall have failed to reaffirm publicly the Company Recommendation within five (5) Business Days after Parent requests in writing that such recommendation under such circumstances be reaffirmed publicly, (D) a tender offer or exchange offer is commenced that would, if consummated, constitute a Takeover Proposal with respect to the Company and the Company 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 (or, in the event of a change in the terms of the tender offer or exchange offer, within ten (10) Business Days of the announcement of such changes), or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (iiE) the Company Board of Directors of the Company or any committee thereof shall have resolved publicly announces an intention to take any of the foregoing actions, or ;
(iiiii) prior to the receipt of the Company enters into a definitive agreement providing for a Superior ProposalStockholder Approval, if the Company shall be in Willful Breach of its obligations pursuant to Section 5.3(b) or Section 5.4; or
(iii) if the representations and warranties Company shall have materially breached or failed to perform any of the Company its representations, warranties, covenants or agreements set forth in this Agreement that are qualified by materiality shall not be true and correct in any respectAgreement, which breach or if failure to perform (i) would give rise to the representations and warranties failure of the Company a condition set forth in this Agreement that are not so qualified Section 6.2(a) or 6.2(b) and (ii) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or have been cured by the Company shall have breached within thirty (30) calendar days following receipt of written notice of such breach or failed in any material respect failure to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such datefrom Parent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pinnacle Foods Inc.), Agreement and Plan of Merger (Hillshire Brands Co)
By Parent. (i) ifupon a breach by the Company of any representation, due to an occurrence that warranty, covenant or agreement set forth in this Agreement, or if occurring after the commencement any representation or warranty of the Offer would result Company shall have become untrue, in a substantial likelihood of a failure to satisfy any of either case such that the conditions set forth in Annex A hereto on Section 8.02(a) or Section 8.02(b) would not be satisfied prior to the Expiration End Date and such conditions breach would not be curable or, if capable of being cured, shall not have been waived cured within the earlier of (x) thirty (30) Business Days following receipt of written notice by all applicable parties, Parent, Purchaser, or the Company from Parent of such breach and (y) any shorter period of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following time that remains between the date Parent provides written notice of such breach and the initial public announcement of the OfferEnd Date; provided, however, that Parent may shall not have the right to terminate this -------- Agreement pursuant to this Section 7.1(d)(i9.01(c)(i) if either Parent or Merger Sub is then in material breach of this Agreement;any representations, warranties, covenants or other agreements hereunder such that the conditions set forth in Section 8.03(a) or Section 8.03(b) would not be satisfied; or
(ii) if (iA) the Company Board of Directors of (or the Special Committee) shall have made a Change in the Company or any committee thereof shall have withdrawn or modifiedRecommendation, or proposed publicly to withdraw or modify, in a manner adverse to Parent announced its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to intention do so, or approved (B) a tender or recommendedexchange offer for Shares that constitutes an Acquisition Proposal (whether or not a Superior Proposal) is commenced by a Person unaffiliated with Parent and, or proposed publicly to approve or recommend, any Takeover within ten (10) Business Days after the public announcement of the commencement of such Acquisition Proposal, (ii) the Board of Directors of the Company shall not have filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the holders of Shares reject such Acquisition Proposal and not tender any Shares into such tender or any committee thereof shall have resolved to take any of the foregoing actionsexchange offer, or (iiiC) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of failed to hold the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three Shareholders’ Meeting no later than five (35) business days' notice thereof or has not been cured within one business day Business Day prior to the Expiration End Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.; or
Appears in 1 contract
Samples: Merger Agreement (Ho Chi Sing)
By Parent. (i) ifupon a breach by the Company of any representation, due to an occurrence that warranty, covenant or agreement set forth in this Agreement, or if occurring after the commencement any representation or warranty of the Offer would result Company shall have become untrue, in a substantial likelihood of a failure to satisfy any of either case such that the conditions set forth in Annex A hereto on the Expiration Date Section 8.02(a) or Section 8.02(b) would not be satisfied and such conditions breach would not be curable or, if capable of being cured, shall not have been waived by all applicable parties, Parent, Purchaser, or any cured within the earlier of their affiliates shall have failed to commence the Offer on or prior to ten (10x) business thirty (30) days following receipt of written notice by the Company from Parent of such breach and (y) any shorter period of time that remains between the date Parent provides written notice of such breach and the initial public announcement of the OfferEnd Date; provided, however, that Parent may shall not have the right to terminate this -------- Agreement pursuant to this Section 7.1(d)(i9.01(c)(i) if either Parent or Merger Sub is then in material breach of this Agreement;any representations, warranties, covenants or other agreements hereunder such that the conditions set forth in Section 8.03(a) or Section 8.03(b) would not be satisfied; or
(ii) if (i) the Board of Directors of the Company Board (or any committee thereof the Special Committee) shall have withdrawn (A) made a Change in the Company Recommendation or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent announced its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request intention to do so, or approved or recommended(B) breached, or proposed publicly to approve or recommendin any material respect, any Takeover Proposalof its obligations under Section 7.03, (iiC) the Board of Directors of failed to include the Company or any committee thereof shall have resolved to take any of Recommendation in the foregoing actions, Proxy Statement or (iiiD) the Company enters into a definitive agreement providing tender or exchange offer for Shares that constitutes an Acquisition Proposal (whether or not a Superior Proposal; or
) is commenced by a Person unaffiliated with Parent and, within ten (iii10) if Business Days after the representations and warranties public announcement of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respectcommencement of such Acquisition Proposal, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall not have breached filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act recommending that the holders of Shares reject such Acquisition Proposal and not tender any Shares into such tender or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.exchange offer; or
Appears in 1 contract
By Parent. (i) ifif at any time prior to the Acceptance Date, due (A) the Company has breached or failed to an occurrence that if occurring after perform in any material respect its obligations, covenants or agreements under this Agreement, (B) the commencement representations and warranties of the Offer would result Company contained in this Agreement that are qualified by reference to materiality or a substantial likelihood of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions Company Material Adverse Effect shall not have been true and correct in all respects when made or at any time prior to the Acceptance Date as if made at or at and as of such time (other than representations and warranties which by their terms address matters only as of another specified date, which shall be true and correct in all respects only as of such date), or (C) the representations and warranties of the Company contained in the Agreement that are not so qualified shall not have been true and correct when made or at any time prior to the Acceptance Date as if made at and as of such time (other than representations and warranties which by their terms address matters only as of another specified date, which shall be true and correct only as of such date), except, in the case of clause (C) only, for such failures to be true and correct as are not reasonably likely to, individually or in the aggregate, result in a Company Material Adverse Effect, and such breach or misrepresentation (1) cannot be or has not been cured prior to the earlier of (x) 30 days following receipt by the Company of written notice from Parent of such breach or misrepresentation and (y) the Termination Date and (2) has not been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreementthe provisions hereof;
(ii) if at any time prior to the Acceptance Date, (iA) the Company, or its Board of Directors of Directors, as the Company or any committee thereof case may be, shall have (1) entered into any agreement with respect to any Competing Transaction other than the Offer or the Merger and other than a confidentiality agreement contemplated by Section 8.04(b), (2) failed to make, withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent or Merger Sub, its approval or and recommendation of the TransactionsOffer, the Merger and this Agreement, or failed to reconfirm its recommendation within three (3) business days after a written request to do soapproved or recommended any Competing Transaction other than the Offer or the Merger, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (iiB) the Company or the Company's Board of Directors of the Company or any committee thereof shall have resolved to take do any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; orforegoing;
(iii) if at any time prior to the representations and warranties of Acceptance Date the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed breaches in any material respect to perform any of its obligations under Section 8.04 or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following Section 10.01(c)(ii) hereof; or
(iv) if (A) the Offer shall have been extended on at least three (3) occasions for an aggregate period of at least 15 business days' notice thereof or has not been cured within one business day prior to days beyond the Initial Expiration Date, exceptand (B) on such extended date of expiration, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.Minimum Condition shall not have been satisfied;
Appears in 1 contract
By Parent. (i) if, due if the Company shall have breached or failed to an occurrence that if occurring after the commencement perform any of their covenants or other agreements under this Agreement or any of the Offer representations and warranties of the Company in this Agreement shall have become inaccurate, in any such case where such breach, failure to perform or inaccuracy (A) would result in a substantial likelihood failure of a failure to satisfy any of the conditions condition set forth in Annex A hereto on Section 2.2(a) or Section 2.2(b) Table of Contents (assuming for this purpose that the Expiration Closing were to occur at such time) and (B) cannot be cured by the End Date or, if curable, is not cured within forty five (45) Business Days following Parent’s delivery of written notice to the Company stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(d)(i) and the basis for such conditions termination (it being understood and hereby agreed that (x) this Agreement may not be terminated pursuant to this Section 8.1(d)(i) if any such breach, failure to perform or inaccuracy is cured within such forty five (45) Business Day period and (y) this Section 8.1(d)(i) will not modify or preclude any party’s termination rights pursuant to Section 8.1(b)(i)); provided, however, that Parent shall not have been waived by all applicable parties, Parent, Purchaser, a right to terminate this Agreement pursuant to this Section 8.1(d)(i) if Parent or Merger Sub is then in material breach of any of their affiliates shall have failed to commence the Offer on representations, warranties, agreements or covenants in this Agreement; or
(ii) prior to ten (10) business days following the date receipt of the initial public announcement Company Stockholder Approval, if the Company Board effects a Change of the OfferRecommendation; provided, however, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i8.1(d)(ii) if Parent fails to terminate this Agreement pursuant to this Section 8.1(d)(ii) prior to 11:59 p.m., Eastern Time on the date which is ten (10) Business Days after Parent is notified in material breach of this Agreement;
(ii) if (i) the Board of Directors of writing that the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in Board has effected a manner adverse to Parent its approval or recommendation Change of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such dateRecommendation.
Appears in 1 contract
Samples: Merger Agreement (Proofpoint Inc)
By Parent. (i) if, due to an occurrence that if occurring after the commencement required approval of the Offer would result in a substantial likelihood of a failure to satisfy any stockholders of the conditions set forth in Annex A hereto on the Expiration Date and such conditions Company shall not have been waived obtained by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date reason of the initial public announcement failure to obtain the required vote upon a vote held at a duly held meeting of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreementstockholders or at any adjournment thereof;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of this Agreement, the TransactionsMerger and the other transactions contemplated hereby, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) or the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Closing Date as if made on such date (or, in the case of representations and warranties that address matters only as of a particular date, as of such date), or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one fifteen (15) business day prior days after Parent gives written notice of such inaccuracy or breach to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such dateCompany.
Appears in 1 contract
Samples: Merger Agreement (Clayton Homes Inc)
By Parent. (i) if, due to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable partieshereto, Parent, the Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten five (105) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three four (34) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, or (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case respect as of the date of this Agreement and as of the Expiration Date as if made on such date, disregarding for this purpose any standard of materiality contained in any such representation or warranty, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, (a) for changes specifically permitted by this Agreement, and for (b)(1) those representations and warranties that address matters only as of a particular date which are true and correct as of such datedate or (2) where the failure of such representations and warranties to be true and correct, do not, individually or in the aggregate, have a Company Material Adverse Effect.
Appears in 1 contract
By Parent. (i) if, due to an occurrence that if occurring after in the commencement of the Offer would result in a substantial likelihood event (A) of a failure to satisfy breach of any of the conditions set forth in Annex A hereto covenant or agreement on the Expiration Date and such conditions shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties part of the Company set forth in this Agreement such that are qualified by materiality shall the condition to the Offer set forth in clause (B)(3) of Annex A hereto would not be true and correct in any respectsatisfied, or if the representations and warranties (B) that any representation or warranty of the Company set forth in this Agreement shall not have been true and correct when made or shall have thereafter become untrue or incorrect (in each case determined after giving effect to the provisos set forth in clause (B)(1) or clause (B)(2) of Annex A hereto, as applicable) such that any condition to the Offer set forth in clause (B)(1) or clause (B)(2) of Annex A hereto would not be satisfied; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are not so qualified curable by the Company through the exercise of commercially reasonable efforts prior to the date that is thirty (30) days after the date on which the Company is notified by Parent in writing of such breach or inaccuracy, or, if earlier, the Termination Date (or Extended Termination Date, as applicable), then Parent shall not be true and correct permitted to terminate this Agreement pursuant to this Section 7.1(e)(i) until the earlier of: (1) the end of such thirty (30) day cure period, or, if earlier, the Termination Date (or Extended Termination Date, as applicable), or (2) the Company ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy following delivery of written notice from Parent to the Company of such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(e)(i) if such breach or inaccuracy by the Company is cured within the applicable time period); or
(ii) in all material respects, in each case as the event that any of the date of this Agreement and as of following shall have occurred: (A) the Expiration Date as if made on such date, Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (B) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Purchaser to include the Company Board Recommendation in the Offer Documents; (C) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Shareholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (D) an Acquisition Transaction Tender Offer shall have been made by a Person unaffiliated with Parent or Purchaser and, within ten (10) Business Days after notice of such Acquisition Transaction Tender Offer is first published, sent or given to the Company Shareholders, the Company shall not have made, pursuant to Rule 14e-2 under the Exchange Act, a statement that the Company recommends rejection of such offer and unconditionally reaffirming the Company Board Recommendation; (E) an Acquisition Proposal shall have been publicly disclosed, announced, commenced, submitted or made, and the Company Board fails to (1) publicly and unconditionally reaffirm the Company Board Recommendation and (2) either unconditionally reject or recommend, by the unanimous vote of all directors of the Company, other than those directors that have deemed themselves conflicted, that the Company Shareholders reject such Acquisition Proposal, as applicable, within ten (10) Business Days after Parent requests in writing that such recommendation be reaffirmed publicly; or (F) the Company, any Subsidiary of the Company or any of their respective Representatives shall have breached any of the provisions set forth in Section 6.1 hereof and such breach shall have resulted in or failed in any material respect facilitated an Acquisition Proposal being announced, submitted or made. The party desiring to perform or comply with any material obligation, agreement or covenant required by terminate this Agreement pursuant to be performed subsection (b), (c), (d) or complied with by it, which inaccuracy or breach cannot be cured following three (3e) business days' of this Section 7.1 shall give written notice thereof or has not been cured within one business day prior of such termination to the Expiration Dateother party in accordance with Section 8.2, except, in specifying the case of the failure of any representation provision or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date provisions hereof pursuant to which are true and correct as of such datetermination is effected.
Appears in 1 contract
Samples: Tender Offer Agreement
By Parent. (i) ifif the Company shall have breached or failed to perform any of its representations, due warranties, covenants or agreements set forth in this Agreement (other than with respect to an occurrence that a breach of Section 5.2 or Section 5.3(c), as to which Section 7.1(c)(ii) will apply), or if any representation or warranty of the Company shall have become untrue, which breach or failure to perform or to be true, either individually or in the aggregate, if occurring after or continuing at the commencement of the Offer Effective Time (A) would result in a substantial likelihood the failure of a failure to satisfy any of the conditions set forth in Annex A hereto on Section 6.1 or Section 6.2 and (B) cannot be or has not been cured by the Expiration earlier of (1) the Outside Date and (2) fifteen (15) days after the giving of written notice to the Company of such conditions breach or failure; provided that Parent shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed the right to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i7.1(c)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;; or
(ii) if (i) the Company Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposaleffects an Adverse Recommendation Change, (ii) the Company or the Company Board of Directors of (or any committee thereof) shall (A) approve, adopt, endorse or recommend any Acquisition Proposal or (B) approve, adopt, endorse or recommend, or enter into or allow the Company or any committee thereof shall have resolved of its Subsidiaries to take any enter into, a letter of the foregoing actionsintent, agreement in principle or definitive agreement for an Acquisition Proposal, (iii) the Company enters into fails publicly to reaffirm its recommendation of the Merger within ten (10) Business Days after a definitive agreement providing for request at any time to do so by Parent, or within ten (10) Business Days after the date any Acquisition Proposal or any material modification thereto is first commenced, published or sent or given to the Company’s shareholders (which reaffirmation must also include, with respect to an Acquisition Proposal, an unconditional rejection of such Acquisition Proposal, it being understood that taking no position with respect to the acceptance of such Acquisition Proposal or modification thereto shall constitute a Superior failure to reject such Acquisition Proposal), (iv) the Company shall have breached any of its obligations under Section 5.2 or Section 5.3(c) or (v) the Company or the Company Board (or any committee thereof) shall authorize or publicly propose any of the foregoing; or
(iii) if the representations FDA restricts the Company’s ability to (A) manufacture, market, sell or otherwise distribute any Company products previously approved or cleared by the FDA for marketing and warranties of sale or (B) obtain approval or clearance to market and sell any products which have not yet been approved or cleared for marketing and sale by the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such dateFDA.
Appears in 1 contract
Samples: Merger Agreement (Ep Medsystems Inc)
By Parent. (i) if, due to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable partieshereto, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) the tenth business days day following the date of the initial public announcement of the Offerexecution hereof; provided, that Parent may not terminate this -------- Agreement pursuant to this Section -------- 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three five (35) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) or the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) prior to the acceptance for payment and payment for Shares in the Offer, if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior fifteen (15) days after Parent gives written notice of such inaccuracy or breach to the Expiration DateCompany, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which and are true and correct as of such date, and for such failures as do not individually or in the aggregate have a Company Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (Xtra Corp /De/)
By Parent. (i) ifif at any time prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer, due the Company has breached any representation or warranty, or prior to an occurrence that if occurring after the commencement of Effective Time has breached any, covenant or other agreement contained in this Agreement, which (A) would give rise to the Offer would result in a substantial likelihood failure of a failure to satisfy any of the conditions condition set forth in clause (c) of Annex A hereto on I, (B) cannot be or has not been cured within 30 days after receipt of notice thereof by the Expiration Date Company or by the Termination Date, whichever is earlier, and such conditions shall (C) has not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed Parent pursuant to commence the Offer on or prior to ten provisions hereof (10) business days following the date of the initial public announcement of the Offer; provided, provided that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(iclause (i) if either Parent or Purchaser is then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement);
(ii) if at any time prior to the acceptance for payment of shares of Company Common Stock pursuant to the Offer, (iA) the Company, or its Board of Directors, as the case may be, shall have (w) entered into any agreement, other than a confidentiality/standstill agreement permitted under Section 8.5, with respect to any Takeover Proposal other than the Offer or the Merger, (x) amended, conditioned, qualified, withdrawn, modified or contradicted, or, in the case of a committee, publicly proposed to the Board of Directors Directors, or resolved to do any of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modifyforegoing, in a manner adverse to Parent or Purchaser, its approval or and recommendation of the TransactionsOffer, or failed to reconfirm its recommendation within three the Merger and this Agreement (3regardless of whether such action was permitted under this Agreement), (y) business days after a written request to do so, or approved or recommended, or or, in the case of a committee, publicly proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; orBoard
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed breaches in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.its obligations under Section 8.5 hereof;
Appears in 1 contract
Samples: Merger Agreement (Southdown Inc)
By Parent. (i) if, due to an occurrence that if occurring after the commencement occurrence, not involving a breach by Parent or Purchaser of the Offer would result in a substantial likelihood of a failure their obligations hereunder, which makes it impossible to satisfy any one or more of the conditions set forth in Annex ANNEX A hereto on the Expiration Date and such conditions shall not have been waived by all applicable partieshereto, Parent, Purchaser, Parent or any of their affiliates Purchaser shall have failed to commence the Offer on or prior to ten the tenth (1010th) business days day following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) if, prior to the acceptance of Shares by Purchaser pursuant to the Offer, the Company Board of Directors of the Company or any committee thereof shall have withdrawn (x) withdrawn, modified or modified, or proposed publicly to withdraw or modify, changed (including by amendment of any Schedule 14D-9) in a manner adverse to Parent or Purchaser its approval or recommendation of the TransactionsOffer, this Agreement or the Merger or the Company Board shall have resolved to do so, (y) recommended an Acquisition Proposal or shall have executed an agreement in principle or definitive agreement relating to an Acquisition Proposal with a person or entity other than Parent or Purchaser or shall have resolved to do so, or (z) failed to reconfirm reaffirm publicly and unconditionally its recommendation to the Company Stockholders that they tender their Shares in the Offer, which public reaffirmation must be made within three (3) business days after a Parent's written request requests to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if prior to the representations and warranties purchase of Shares pursuant to the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respectOffer, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached any representation, warranty, covenant or failed other agreement contained in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement which would give rise to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation a condition set forth in paragraph (c) (vi) or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as (viii) of a particular date which are true and correct as of such dateANNEX A hereto.
Appears in 1 contract
Samples: Merger Agreement (U S Realtel Inc)
By Parent. (i) ifif the Company shall have breached or failed to perform any of its representations, due warranties, covenants or agreements set forth in this Agreement (other than with respect to an occurrence that a material breach of Section 5.3, as to which Section 7.1(c)(ii) will apply) or any such representations or warranties shall have become untrue after the date of this Agreement, which breach or failure to perform or be true, either individually or in the aggregate, if occurring after or continuing at the commencement of the Offer Effective Time (A) would result in a substantial likelihood the failure of a failure to satisfy any of the conditions set forth in Annex A hereto on Sections 6.1 or 6.3 and (B) cannot be or has not been cured by the Expiration earlier of (1) the Outside Date and (2) thirty (30) days after the giving of written notice to the Company of such conditions breach or failure to perform or be true; provided that Parent shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed the right to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i7.1(c)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement;; or
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposaleffects an Adverse Recommendation Change, (ii) the Company or the Board of Directors of (or any committee thereof) shall (A) approve, adopt, endorse or recommend any Acquisition Proposal or (B) approve, adopt, endorse or recommend, or enter into or allow the Company or any committee thereof shall have resolved of its Subsidiaries to take any enter into, a letter of the foregoing actionsintent, agreement in principle or definitive agreement for an Acquisition Proposal (other than an Acceptable Confidentiality Agreement), (iii) following the Solicitation Period End Date, the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties fails publicly to reaffirm its recommendation of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of Merger within ten (10) business days after the date of this Agreement and as of any Acquisition Proposal (other than an Acquisition Proposal by an Excluded Party) or any material modification thereto (other than a modification to an Acquisition Proposal by an Excluded Party) is first commenced, published or sent or given to the Expiration Date as if made on such dateCompany’s stockholders, or (iv) the Company shall have breached or failed in any material respect to perform its obligations under Section 5.3 or comply with (v) the Company or the Board of Directors (or any material obligation, agreement committee thereof) shall authorize or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case publicly propose any of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.foregoing;
Appears in 1 contract
By Parent. (i) if, due to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date Parent Conditions shall have become incapable of fulfillment and such conditions shall not have been waived by all applicable partiesParent and/or the Purchaser;
(ii) if prior to the Closing Date, Parentthe Company shall have breached any representation, Purchaserwarranty, covenant or other agreement contained in this Agreement in each case such that the conditions set forth in Section 6.3(a) or (b) could not then be satisfied and such breach cannot be or has not been cured within thirty (30) days after the giving of written notice by Parent to the Company;
(iii) if, prior to the Closing Date, the Company Board of Directors shall have (A) withdrawn, modified or changed in a manner adverse to Parent or Purchaser its approval or recommendation of this Agreement or the Merger or shall have proposed publicly or resolved to do so, or any (B) approved or recommended an Acquisition Proposal or shall have executed an agreement in principle or definitive agreement relating to an Acquisition Proposal with a Person other than Parent or Purchaser or shall have proposed publicly or resolved to do so;
(iv) if the Company Board of their affiliates Directors or a special committee thereof shall have failed to commence send to the Offer on or prior to stockholders of the Company, within ten (10) business days following after the date commencement of any tender or exchange offer by any Person (other than Parent or Purchaser), a statement disclosing that the initial public announcement Company recommends rejecting of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreementsuch tender or exchange offer;
(iiv) if (i) any Acquisition Proposal shall have resulted directly or indirectly from the Board of Directors of Company, the Company Subsidiaries or any committee thereof shall have withdrawn or modifiedof their Representatives having breached, or proposed publicly to withdraw or modifyhaving taken any action with the intent of circumventing, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, provisions of Sections 5.5 or (iii) the Company enters into a definitive agreement providing for a Superior Proposal5.11 hereof; or
(iiivi) if the representations and warranties Company fails to call, give notice of, convene or hold a meeting of the Company set forth Company's stockholders in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply accordance with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such dateSection 1.7 hereof.
Appears in 1 contract
Samples: Merger Agreement (Cypress Communications Holding Co Inc)
By Parent. By Parent prior to the consummation of the Merger if (i) ifthe representations and warranties of SBI contained in Article IV of this Agreement fail to be true and correct in any material respect (or if the representation or warranty already is qualified as to materiality, due shall fail to an occurrence that if occurring after the commencement be true and correct as so qualified) either (A) as of the Offer would result date referred to in a substantial likelihood any representation or warranty that addresses matters as of a failure particular date or (B) as to satisfy any all other representations and warranties, as of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; determination, provided, however, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(iclause (i) if Parent unless the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has had, or is in material breach of this Agreement;
reasonably likely to have, a Material Adverse Effect, (ii) if SBI materially breaches or materially fails to perform its covenants and other agreements contained herein, (iiii) SBI’s Board of Directors shall have (A) failed to recommend the approval and adoption of this Agreement and the Merger to SBI’s stockholders, (B) withdrawn its recommendation, (C) modified or qualified, in any manner adverse to Parent or Purchaser, its recommendation, (D) failed to reaffirm its recommendation in favor of the adoption and approval of the Agreement and the approval of the Merger within ten (10) business days after Parent requests in writing that such recommendation be reaffirmed at any time following the announcement of an Acquisition Proposal or (E) the Board of Directors of the Company or any committee thereof SBI shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, recommended any Takeover Acquisition Proposal, (iiiv) the Board of Directors of the Company or any committee thereof SBI shall have resolved failed to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed comply in any material respect with the provisions of Sections 5.1.7 or 5.1.8 of this Agreement; provided further that, with respect to perform the foregoing clauses (i) and (ii), such breach or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach failure cannot be cured following three (3) business days' notice thereof or has not been cured in all material respects within one business day prior ten days after Parent’s written notice thereof to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such dateSBI.
Appears in 1 contract
Samples: Merger Agreement (Aquantive Inc)
By Parent. (i) if, due to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable partieshereto, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten seven (107) business days following the date of the initial public announcement of the Offer; provided, that Parent -------- may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three four (34) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, or (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.
Appears in 1 contract
By Parent. (i) if, due to an occurrence that if occurring after in the commencement event of a material breach of any covenant or agreement on the part of the Offer would result in a substantial likelihood of a failure to satisfy any of the conditions Company set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable parties, Parent, Purchaserthis Agreement, or in the event that any of their affiliates shall have failed to commence the Offer on representation or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties 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 are qualified by materiality shall the condition set forth in SECTION 7.3 hereof would not be true and correct satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue; PROVIDED, HOWEVER, that notwithstanding the foregoing, in any respect, the event that such breach by the Company or if such inaccuracies in the representations and warranties of the Company set forth in this Agreement that are not so qualified curable by the Company through the exercise of its commercially reasonable efforts, then Parent shall not be true and correct permitted to terminate this Agreement pursuant to this SECTION 8.1(d)(I) until the earlier to occur of (A) 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 (B) 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 8.1(d)(I) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period); or
(ii) if a Triggering Event shall have occurred. For purposes of this SECTION 8.1, a "TRIGGERING EVENT" shall be deemed to have occurred if, prior to the Effective Time: (A) the Company Board or any committee thereof shall for any reason have directly or indirectly withheld, withdrawn, amended or modified its recommendation (including, without limitation, by virtue of taking any position or making any disclosure pursuant to the last sentence of SECTION 6.3(c) hereof) in all material respects, in each case as favor of the date adoption and approval of this Agreement and as or the approval of the Expiration Date as if made on such dateMerger by the Company's stockholders (collectively, or the "RECOMMENDATIONS"); (B) the Company shall have breached failed to include the Recommendations in the Proxy Statement/ Prospectus; (C) the Company Board or failed in any material respect committee thereof shall have approved, or recommended that the Company stockholders approve, an Acquisition Proposal; (D) the Company shall have entered into any letter of intent or similar document or a Contract (other than a confidentiality agreement as permitted by SECTION 6.1 hereof) accepting an Acquisition Proposal; or (E) a tender or exchange offer shall have been commenced by a person unaffiliated with Parent, and the Company shall not have sent to perform or comply with any material obligationits stockholders pursuant to Rule 14e-2 promulgated under the Securities Act, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three within ten (310) business days' notice thereof days after such tender or has not been cured within one business day prior exchange offer is first published, sent or given to the Expiration DateCompany's stockholders, except, in a statement reaffirming the case of Recommendations and recommending that the failure of any representation Company's stockholders reject such tender or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such dateexchange offer.
Appears in 1 contract
By Parent. (i) if, due to an occurrence that if occurring after in the commencement of the Offer would result in a substantial likelihood event of a failure to satisfy breach of any of the conditions set forth in Annex A hereto representation, warranty, covenant or agreement on the Expiration Date and such conditions shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent its approval or recommendation of the Transactions, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal, (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposal; or
(iii) if the representations and warranties part of the Company set forth in this Agreement such that are qualified the conditions set forth in Section 7.02(a) or Section 7.02(b) would not be satisfied as of the time of such breach; provided, however, that notwithstanding the foregoing, (x) in the event that such breach by materiality the Company is curable by the Company by the Termination Date, then Parent shall not be true and correct in any respect, or if permitted to terminate this Agreement pursuant to this Section 8.01(e)(i) until the representations and warranties earlier of (I) the date that is forty-five (45) calendar days after delivery of written notice from Parent to the Company set forth in this Agreement that are not so qualified shall not be true of such breach and correct in all material respects(II) the Business Day immediately prior to the Termination Date (it being understood that, in each case as of (I) and (II), Parent may not terminate this Agreement pursuant to this Section 8.01(e)(i) if such breach by the Company is cured within such time period) and (y) the right of termination under this Section 8.01(e)(i) shall not be available if Parent or Merger Sub is then in material breach of any representation, warranty or covenant under this Agreement;
(ii) in the event that a Triggering Event shall have occurred prior to receipt of the date Requisite Stockholder Approval. For all purposes of and under this Agreement and as Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the Expiration Date as if made on such date, or following shall have occurred: (A) the Company shall have willfully breached the provisions of Section 6.01(b) or failed Section 6.02(b) in any material respect (without regard to perform whether such breach results in an Acquisition Proposal); (B) the Company Board or comply with any material obligation, agreement committee thereof shall have for any reason effected a Company Board Recommendation Change; or covenant required by this Agreement (C) the Company shall have failed to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to include the Expiration Date, except, Company Board Recommendation in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.Proxy Statement/Prospectus; or
Appears in 1 contract
By Parent. (i) if, due if the Company shall have breached or failed to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure to satisfy perform any of the conditions its representations, warranties, covenants or agreements set forth in Annex A hereto on this Agreement, which breach or failure to perform (A) would give rise to the Expiration failure of a condition set forth in Section 6.2(a) or Section 6.2(b), respectively, and (B) cannot be cured by the Company by the End Date and such conditions or, if capable of being cured, shall not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed to commence the Offer on or prior to ten cured within thirty (1030) business calendar days following the date receipt of the initial public announcement of the Offer; provided, that written notice from Parent may not stating Parent’s intention to terminate this -------- Agreement pursuant to this Section 7.1(d)(i7.1(c)(i) if Parent is in material breach of this Agreementand the basis for such termination;
(ii) if (iA) the Company Board of Directors of (or a duly authorized committee thereof) shall have effected a Company Adverse Recommendation Change, (B) the Company fails to include the Company Board Recommendation in the Proxy Statement, (C) the Company Board (or any a duly authorized committee thereof thereof) shall have withdrawn adopted, approved, recommended, submitted to the Company’s stockholders, declared advisable, executed or modifiedentered into (or resolved, determined or proposed publicly to withdraw or modifyadopt, in a manner adverse to Parent its approval or recommendation of the Transactionsapprove, or failed to reconfirm its recommendation within three (3) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, submit to stockholders or declare advisable, execute or enter into) any Takeover ProposalAlternative Acquisition Agreement (which, (ii) for the Board avoidance of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actionsdoubt, would not include an Acceptable Confidentiality Agreement), or (iiiD) the Company enters into a definitive agreement providing for tender offer or exchange offer which constitutes a Superior Proposal; or
(iii) if the representations Takeover Proposal shall have been commenced by a Person unaffiliated with Parent and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall not have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior sent to the Expiration Company’s stockholders pursuant to Rule 14e-2 under the Exchange Act, within five (5) Business Days (or, if the End Date is fewer than five (5) Business Days after such offer is first published, sent or given, by the close of business on the Business Day immediately preceding the End Date) after such tender offer or exchange offer is first published, except, in the case of the failure of any representation sent or warranty, for changes specifically permitted by this Agreementgiven, and for those representations Parent has so requested in writing, a statement reaffirming the Company Board Recommendation and warranties recommending that address matters only as of a particular date which are true and correct as of the Company’s stockholders reject such date.tender or exchange offer; or
Appears in 1 contract
By Parent. (i) if, due to an occurrence that if occurring after the commencement of the Offer would result in a substantial likelihood of a failure make it impossible to satisfy any of the conditions set forth in Annex A hereto on the Expiration Date and such conditions shall not have been waived by all applicable partieshereto, Parent, Purchaser, or any of their respective affiliates shall have failed to commence the Offer on or prior to ten (10) business days five Business Days following the date of the initial public announcement of the Offer; provided, that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(i) if Parent or Purchaser is in material breach of this Agreement;
(ii) if (i) the Board of Directors of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modify, in a manner adverse to Parent Parent, its approval or recommendation of any of the Transactions; provided, or failed however, that Parent may only exercise this termination right prior to reconfirm its recommendation within three the Acceptance Date;
(3iii) business days after a written request to do so, or approved or recommended, or proposed publicly to approve or recommend, if the Company shall have entered into any agreement respecting any Takeover Proposal, (iiProposal other than a confidentiality agreement permitted by Section 5.2(a) hereof or the Board of Directors of the Company or any committee thereof shall have resolved recommended to take any the stockholders of the foregoing actionsCompany a Takeover Proposal or shall not have rejected any proposal respecting a Takeover Proposal within 10 Business Days of the making thereof; provided, or (iii) however, that Parent may only exercise this termination right prior to the Company enters into a definitive agreement providing for a Superior ProposalAcceptance Date; or
(iiiiv) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this the Agreement to be performed or complied with by it, or the representations and warranties of the Company set forth in the Agreement shall not be true and correct on and as of the Acceptance Date as if made on such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where failure to be true and correct (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth therein) would not have a Company Material Adverse Effect, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day Business Day prior to the Expiration Acceptance Date, except, in the case of the failure of any representation or warranty, (x) for changes specifically permitted by this Agreement, and for (y) those representations and warranties that address matters only as of a particular date which are true and correct as of such date; provided, however that Parent may only exercise this termination right prior to the Acceptance Date. For purposes of this Section 7.1(d)(iv), (A) a Company Material Adverse Effect shall be deemed to have occurred if but only if the applicable event, change, effect, or occurrence (or aggregation thereof) would be reasonably likely to (x) result in liability to Company (or its subsidiaries) or diminution in the value of the Company (including its subsidiaries) (including but not limited to, as a result of a diminution of the revenues, earnings or net asset value of the Company (including its subsidiaries)) of US $100,000,000 or more in the aggregate, taking into account available insurance proceeds payable to the Company or its subsidiaries, and (B) a Company Material Adverse Effect shall not include any event, change, effect or occurrence (or aggregation thereof) that occurs or would be reasonably likely to occur as a result of any general, national, international or regional economic or financial condition or (y) have a material adverse effect on the parties' ability to consummate the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Interlogix Inc)
By Parent. (i) if, due if at any time prior to an occurrence that if occurring after the commencement Consummation of the Offer Offer, the Company has breached any representation or warranty, or prior to the Effective Time has breached any covenant or other agreement contained in this Agreement, which (A) would result in a substantial likelihood give rise to the failure of a failure to satisfy any of the conditions condition set forth in clause (c) of Annex A hereto on I, (B) cannot be or has not been cured within 20 days after receipt of written notice thereof by the Expiration Date Company or by the Termination Date, whichever is earlier, and such conditions shall (C) has not have been waived by all applicable parties, Parent, Purchaser, or any of their affiliates shall have failed Parent pursuant to commence the Offer on or prior to ten provisions hereof (10) business days following the date of the initial public announcement of the Offer; provided, provided that Parent may not terminate this -------- Agreement pursuant to this Section 7.1(d)(iclause (i) if either Parent or Purchaser is then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement;).
(ii) if at any time prior to Consummation of the Offer, (iA) the Company, or its Board of Directors Directors, as the case may be, shall have (u) after the date hereof, entered into any agreement, other than a confidentiality/standstill agreement permitted under Section 8.5, with respect to any Takeover Proposal other than the Offer or the Merger, (v) amended, conditioned, qualified, withdrawn, modified or contradicted, or resolved to do any of the Company or any committee thereof shall have withdrawn or modified, or proposed publicly to withdraw or modifyforegoing, in a manner adverse to Parent or Purchaser, its approval or and recommendation of the TransactionsOffer, the Merger and this Agreement (regardless of whether such action was permitted under this Agreement), (w) solicited, approved or recommended any Takeover Proposal other than the Offer or the Merger, (x) failed to reconfirm reaffirm publicly its recommendation regarding the Offer or approval of the Merger or any of the Company Transaction Documents within three (3) five business days after a of Purchaser's written request to do so, (y) failed to reject any Takeover Proposal or approved amended Takeover Proposal within five business days following the public announcement of such Takeover Proposal or recommendedamendment, or proposed publicly (z) prior to approve the Consummation of the Offer, violated Section 8.2(b)(15), or recommend, any Takeover Proposal, (iiB) the Company or the Company's Board 50 55 of Directors of the Company or any committee thereof shall have resolved or agreed, in writing or otherwise, to take do any of the foregoing actions, or (iii) the Company enters into a definitive agreement providing for a Superior Proposalforegoing; or
(iii) if the representations and warranties of the Company set forth in this Agreement that are qualified by materiality shall not be true and correct in any respect, or if the representations and warranties of the Company set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement and as of the Expiration Date as if made on such date, or the Company shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured following three (3) business days' notice thereof or has not been cured within one business day prior to the Expiration Date, except, in the case of the failure of any representation or warranty, for changes specifically permitted by this Agreement, and for those representations and warranties that address matters only as of a particular date which are true and correct as of such date.
Appears in 1 contract
