Common use of By Parent Clause in Contracts

By Parent. (i) if Company shall have breached, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of any of the conditions set forth in Section 8.2(a) or 8.2(b) (a “Company Terminating Breach”) and (B) is not cured or cannot be cured or waived prior to the earlier of (i) forty-five (45) days following notice to Company from Parent of such breach or failure and (ii) the Outside Date; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); or (ii) prior to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof (A) shall have effected a Company Adverse Recommendation Change, (B) after public announcement by any Person of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, or (C) fails to include the Company Board Recommendation in the Proxy Statement; or

By Parent. (i) if the Company shall have breached, violated breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this AgreementAgreement (other than with respect to a breach of Section 5.2 or Section 5.3(b), as to which Section 7.1(c)(ii)(D) will apply), or if any representation or warranty of the Company shall have become untrue, which breach, violation breach or failure to performperform or to be true, either individually or in the aggregate, if occurring or continuing on at the Closing Date Effective Time (A) would result in the failure of any of the conditions set forth in Section 8.2(a) 6.1 or 8.2(b) (a “Company Terminating Breach”) Section 6.2 and (B) is not cured or cannot be or has not been cured or waived prior to by the earlier of (i1) forty-five the Outside Date and (452) thirty days following after the giving of written notice to the Company from Parent of such breach or failure and (ii) the Outside Datefailure; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i7.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice or Merger Sub is then in material breach of any of its election to terminate covenants or agreements set forth in this Agreement pursuant to this such that Section 9.1(c)(i)6.3(a) or Section 6.3(b) would not be satisfied; or (ii) prior to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof (A) an Adverse Recommendation Change shall have effected a Company Adverse Recommendation Changeoccurred, (B) after public announcement by any Person the Company shall, within ten Business Days of a Company tender or exchange offer relating to an Acquisition Proposal (whether or not a Superior Proposal) having been commenced, fails fail to publicly recommend against such tender or exchange offer, (C) the Company Acquisition Proposal and shall have failed to publicly reaffirm its recommendation of the Company Board Recommendation Merger after any Acquisition Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders, within ten (10) Business Days of being requested after a written request to do so by Parent, or (CD) fails to include the Company Board Recommendation shall have materially breached Section 5.2 or Section 5.3(b) or failed to perform any of its obligations set forth in the Proxy Statement; orSection 5.2 or Section 5.3(b) in any material respect;

By Parent. (i) if Company a Partnership Adverse Recommendation Change shall have breachedoccurred; (ii) if prior to the Written Consent being delivered and becoming effective, violated the Partnership is in willful breach of its obligations pursuant to the first two sentences of Section 6.1(b) or Section 6.3(a); provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(c)(ii) if Parent, Merger Sub or VTDC is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the Support Agreement, as applicable; or (iii) if the Partnership or the Partnership GP shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this AgreementAgreement (or if any of the representations or warranties of the Partnership or the Partnership GP set forth in this Agreement shall fail to be true), which breach, violation breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in (if it occurred or was continuing as of the Closing Date) give rise to the failure of any of the conditions a condition set forth in Section 8.2(a7.2(a) or 8.2(b) (a “Company Terminating Breach”Section 7.2(b) and (B) is incapable of being cured, or is not cured cured, by the Partnership or cannot be cured or waived prior to the Partnership GP within the earlier of (ix) forty-five (45) 30 days following receipt of written notice to Company from Parent of such breach or failure and or (iiy) the Outside Date; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i8.1(c)(iii) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice Parent, Merger Sub or VTDC is then in material breach of any of its election to terminate representations, warranties, covenants or agreements contained in this Agreement pursuant to this Section 9.1(c)(i); or (ii) prior to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof (A) shall have effected a Company Adverse Recommendation ChangeSupport Agreement, (B) after public announcement by any Person of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, or (C) fails to include the Company Board Recommendation in the Proxy Statement; oras applicable.

By Parent. (i) if Company shall have breached, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of any of the conditions Company’s covenants, representations or warranties contained in this Agreement shall be or have become untrue, such that the condition set forth in Section 8.2(a7.02(a) (Representations and Warranties) or 8.2(bSection 7.02(b) (a “Covenants) would not be satisfied, and such breach is (A) is incapable of being cured by the Company Terminating Breach”) and by or before the End Date or (B) is not cured or cannot be cured or waived prior to the earlier of (i) forty-within forty five (45) days following of receipt by the Company of written notice to Company from Parent of such breach or failure and (ii) the Outside Date; describing in reasonable detail such breach, provided, that however, that, Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i8.01(b)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice any of its election to terminate this Agreement pursuant to this Section 9.1(c)(i)Parent, Merger Sub I or Merger Sub II is then in material breach of any representation, warranty, covenant or obligation hereunder; or (ii) prior to obtaining if the Company Stockholder Approvalmakes a Company Adverse Recommendation Change (provided that, if any written notice, including pursuant to Section 6.04(b), of the Company’s intention to make a Company or the Adverse Recommendation Change in advance of a Company Board or Adverse Recommendation Change shall not result in Parent having any committee thereof (Atermination rights pursuant to this Section 8.01(b)(ii) shall have effected unless such written notice otherwise constitutes a Company Adverse Recommendation Change; provided further, (B) after public announcement by any Person that Parent must deliver written notice of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation termination within ten (10) Business Days of being requested such Company Adverse Recommendation Change giving rise to do so by Parent, or (C) fails such termination right in order for such termination to include the Company Board Recommendation in the Proxy Statement; ortake effect);

By Parent. (i) if Company shall have breached, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on at the Closing Date (A) would result in the failure of any of the conditions set forth in Section 8.2(a) or Section 8.2(b) (a “Company Terminating Breach”) ), and (B) is not cured or such Company Terminating Breach cannot be cured or (or, if capable of cure, is not cured), and has not been waived prior to by Parent, by the earlier of (i1) forty-five (45) days following after written notice of such Company Terminating Breach is delivered by Parent to Company from Parent of such breach or failure and (ii2) two (2) Business Days prior to the Outside Date; provided, provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); or (ii) if, prior to obtaining the Company Stockholder Approval, if Company or (A) the Company Board or any committee thereof (A1) shall have effected a Company Adverse Recommendation ChangeChange (provided that Parent’s right to terminate this Agreement pursuant to this Section 9.1(c)(ii)(A) in respect of a Company Adverse Recommendation Change will expire after the Company Stockholder Approval has been obtained) or (2) approves, adopts, publicly recommends, or enters into or allows Company or any of the Company Subsidiaries to enter into, a Company Alternative Acquisition Agreement (other than a Company Acceptable Confidentiality Agreement) or (B) after public announcement there is a willful and material breach of Section 7.3 by any Person of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, or (C) fails to include the Company Board Recommendation in the Proxy StatementCompany; or

By Parent. (i) if the Company shall have breached, violated breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this AgreementAgreement (other than with respect to a breach of Section 5.2(a) or Section 5.3(b), as to which Section 7.1(c)(ii)(B) will apply), or if any representation or warranty of the Company shall have become untrue, which breach, violation breach or failure to performperform or to be true, either individually or in the aggregate, if occurring or continuing on at the Closing Date Effective Time (A) would result in the failure of any of the conditions set forth in Section 8.2(a) 6.1 or 8.2(b) (a “Company Terminating Breach”) Section 6.2 and (B) is not cured or cannot be or has not been cured or waived prior to by the earlier of (i1) forty-five the Outside Date and (452) 30 days following after the giving of written notice to the Company from Parent of such breach or failure and (ii) the Outside Datefailure; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(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 such that the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied; (ii) if (A) a Parent Terminating Breach Company Adverse Recommendation Change shall have occurred and be continuing at or (B) the time Parent delivers notice Company shall have materially breached or failed to perform any of its election to terminate this Agreement pursuant to this obligations set forth in Section 9.1(c)(i5.2(a) or Section 5.3(b); or (iiiii) prior if at any time before the Parent Shareholder Approval is obtained, in order to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof accept a Parent Superior Proposal (A) Parent shall have effected simultaneously with the termination of this Agreement entered into an Alternative Acquisition Agreement with respect to a Company Adverse Recommendation ChangeParent Superior Proposal, (B) after public announcement by any Person the Parent Board has complied, in all non-de minimis respects, with its obligations under Section 5.2(b) in respect of a Company Acquisition Proposalsuch Parent Superior Proposal (including the notice provisions thereof), fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, or (C) fails Parent has paid, prior to include or simultaneously with the Company Board Recommendation in termination of this Agreement, the Proxy Statement; orParent Termination Fee due under Section 7.3(c) that is payable if this Agreement is terminated pursuant to this Section 7.1(c)(iii).

By Parent. (i) if the Board of Directors of the Company (A) withdraws or modifies, in a manner adverse to Parent, the Company's recommendation referred to in Section 4.3(b) (it being understood and agreed that any "stop-look-and-listen" communication to the Company's stockholders of the nature contemplated by Rule 14d-9 of the Exchange Act Rules shall have breachednot be deemed to constitute a withdrawal or modification of such recommendation), violated or, upon the request of Parent, fails, within five (5) Business Days of Parent's written request, to reaffirm its recommendation of the Merger and this Agreement or (B) recommends an Alternative Proposal or Superior Proposal to the stockholders of the Company or enters into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other agreement (other than a confidentiality agreement in accordance with Section 6.3(b)) with respect thereto; (ii) if (A) the Company has breached or failed to perform any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, which breach, violation or failure to perform, either individually or in Agreement such that the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of any of the conditions closing condition set forth in Section 8.2(a7.2(a) would not be satisfied or 8.2(b(B) there exists a breach of any representation or warranty of the Company contained in this Agreement such that the closing condition set forth in Section 7.2(b) would not be satisfied and, in the case of both (a “Company Terminating Breach”A) and (B) is not cured or cannot be cured or waived prior to the earlier of (other than (i) forty-five with respect to a breach or failure to perform any of the covenants or agreements of the Company set forth in Section 6.3 or (45ii) days following notice with respect only to Company from Parent the covenants which set forth the timeframe for which the Proxy Statement must be filed with the SEC, the mailing of the Proxy Statement to the Company's stockholders, and the holding of the Special Meeting, in Section 6.2(a), for which, in each case, there shall be no cure period), such breach or failure and to perform (ii1) the Outside Date; provided, that Parent shall is not have the right to terminate this Agreement pursuant to cured within 30 days after receipt of written notice thereof specifically referencing this Section 9.1(c)(i8.1(d)(ii) if a Parent Terminating Breach shall have occurred and be continuing at or (2) is incapable of being cured by the time Parent delivers notice of its election to terminate this Agreement pursuant to this Company by the date set forth in Section 9.1(c)(i8.1(b)(ii); or (iiiii) prior pursuant to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof (A) shall have effected a Company Adverse Recommendation Change, (B) after public announcement by any Person of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, or (C) fails to include the Company Board Recommendation in the Proxy Statement; orSection 8.3(d)(iii).

By Parent. (i) if the Company or Flagstone Bermuda shall have breached, violated breached any of its representations or warranties or failed to perform any of its representations, warranties, covenants or agreements (other than Section 5.02 or 5.03) set forth in this Agreement, which breach, violation breach or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date perform (A) would result in give rise to the failure of any of the conditions a condition set forth in Section 8.2(a6.02(a) or 8.2(b) (a “Company Terminating Breach”6.02(b) and (B) is not incapable of being cured or cannot be cured or waived prior to the earlier Walk-Away Date, or if capable of (i) forty-five (45) being cured, shall not have been cured within 30 calendar days following receipt by the Company or Flagstone Bermuda of written notice to Company from Parent of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.01(c)(i) and the basis for such termination (ii) or in any event has not been cured by the Outside Walk-Away Date); provided, provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i7.01(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice or Merger Sub is then in material breach of any of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); orrepresentations, warranties, covenants or agreements hereunder; (ii) prior to obtaining receipt of the Company Stockholder Shareholder Approval, if Company or the Company Board or any committee thereof (A) the Board of Directors of the Company shall have effected a Company an Adverse Recommendation Change, Change or (B) after public announcement there shall have occurred any willful and material breach of Section 5.02 or 5.03 by the Company, any Person Subsidiary of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days or any Representative of being requested to do so by Parent, or (C) fails to include the Company Board Recommendation in or any Subsidiary of the Proxy StatementCompany; or (iii) if Parent is a Requesting Party and has complied with Section 5.17, and, after final determination in accordance with Section 5.17, the condition set forth in Section 6.02(d) is not satisfied;

By Parent. (i) if (x) the Company Board shall have withdrawn, or modified or changed in a manner adverse to Parent, its approval or recommendation of this Agreement and the Merger or shall have recommended a Superior Proposal with a person other than Parent or its Subsidiaries, (y) Company shall have breached, violated entered into a definitive agreement providing for a Superior Proposal with a person other than Parent or failed its Subsidiaries or (z) the Company Board shall have resolved to perform do any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date foregoing; (Aii) would result in the failure upon a breach of any representation, warranty, covenant or agreement of Company, or if any representation or warranty of Company shall become untrue, in either case which breach or misrepresentation or warranty shall not have been cured within a reasonable period of time following written notice from Parent such that the conditions set forth in Section 8.2(a) or 8.2(b) (a “Company Terminating Breach”6.2(a) and 6.2(b) would be incapable of being satisfied by the End Date; or (Biii) is not cured upon a knowing, willful and material breach by any member of the Company Board or cannot be cured any of Company's financial or waived prior to legal advisors of the earlier provisions of (i) forty-five (45) days following notice to Company from Parent of Section 5.4, if such breach or failure and (ii) the Outside Date; provided, that Parent shall not have the right been cured within a reasonable period of time following written notice from Parent. The party desiring to terminate this Agreement pursuant to clauses (b), (c), (d) or (e) of this Section 9.1(c)(i) if a Parent Terminating Breach 7.1 shall have occurred and be continuing at the time Parent delivers give written notice of its election such termination to terminate this Agreement the other party in accordance with Section 8.1, specifying the provision hereof pursuant to this Section 9.1(c)(i); or (ii) prior to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof (A) shall have effected a Company Adverse Recommendation Change, (B) after public announcement by any Person of a Company Acquisition Proposal, fails to recommend against which such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, or (C) fails to include the Company Board Recommendation in the Proxy Statement; ortermination is effected.

By Parent. (i) if (x) the Company Board shall have failed to recommend or withdrawn, or modified or changed in a manner adverse to Parent its approval or recommendation of this Agreement or the Merger or shall have recommended a Superior Proposal or (y) Company shall have breached, violated entered into a definitive agreement providing for a Superior Proposal with a person other than Parent or failed its Subsidiaries (or the Company Board resolves to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of do any of the conditions set forth in Section 8.2(a) or 8.2(b) (a “Company Terminating Breach”) and (B) is not cured or cannot be cured or waived prior to the earlier of (i) forty-five (45) days following notice to Company from Parent of such breach or failure and (ii) the Outside Date; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(iforegoing); or (ii) prior upon a breach of any representation, warranty, covenant or agreement of Company, or if any representation or warranty of Company shall become untrue, in either case which breach or misrepresentation or warranty shall not have been cured within a reasonable period of time following written notice from Parent such that the conditions set forth in Section 6.02(a) would be incapable of being satisfied by the End Date (a "Company Breach"). The party desiring to obtaining terminate this Agreement pursuant to clauses (b), (c), (d) or (e) of this Section 7.01 shall give written notice of such termination to the Company Stockholder Approvalother party in accordance with Section 8.02, if Company or specifying the Company Board or any committee thereof provision hereof pursuant to which such termination is effected. Notwithstanding anything else contained in this Agreement, (A) the right to terminate this Agreement under this Section 7.01 shall have effected a Company Adverse Recommendation Changenot be available to any party whose failure to fulfill its obligations or to comply with its covenants under this Agreement in all material respects has been the cause of, or resulted in, the failure to satisfy any condition to the obligations of either party hereunder, and (B) after public announcement by no party that is in material breach of its obligations hereunder shall be entitled to any Person payment of a Company Acquisition Proposal, fails any amount from the other party pursuant to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, or (C) fails to include the Company Board Recommendation in the Proxy Statement; orSection 7.03(b).

By Parent. (i) if the Company shall have breached, violated materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation breach or failure to performperform (A)(x) if the Offer Termination shall not have occurred, either individually and if such breach or in the aggregate, if failure were occurring or continuing on at the Closing Date (A) Offer Closing, would result in give rise to the failure of any an Offer Condition or (y) if the Offer Termination shall have occurred, and if such breach or failure were occurring or continuing at the Closing, would give rise to the failure of the conditions a condition set forth in Section 8.2(a) or 8.2(b) (a “Company Terminating Breach”) 7.2 and (B) is has not been cured or cannot be cured or waived by the Walk-Away Date; provided that Parent shall have given the Company written notice at least four (4) Business Days prior to such termination stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(c)(i) and the earlier of (i) forty-five (45) days following notice to Company from Parent of basis for such breach or failure and (ii) the Outside Datetermination; provided, however, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i8.1(c)(i) if (x) Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement or (y) if the Offer Closing shall have occurred; (ii) if a Parent Terminating Breach Company Adverse Recommendation Change shall have occurred and be continuing at occurred; (iii) if the time Parent delivers notice Company shall have breached any of its election to terminate this Agreement pursuant to this obligations under Section 9.1(c)(i6.3, other than deminimis breaches of the Company’s notification obligations under Section 6.3(a)(iii) or 6.3(f)(iii); or (iiiv) prior to obtaining the Company Stockholder Approval, if Company or the Company Board or any committee thereof (A) there shall have effected a Company Adverse Recommendation Changebeen, (B) after public announcement by any Person of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parent, individually or (C) fails to include the Company Board Recommendation in the Proxy Statementaggregate, a Material Adverse Effect on the Company; or

By Parent. (i) if Company shall have breachedif, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of any of the conditions set forth in Section 8.2(a) or 8.2(b) (a “Company Terminating Breach”) and (B) is not cured or cannot be cured or waived prior to the earlier receipt of (i) forty-five (45) days following notice to Company from Parent of such breach or failure and (ii) the Outside Date; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); or (ii) prior to obtaining the Company Stockholder Approval, if Company or (A) the Company Board (or any committee thereof (Athereof) shall have effected a Company Adverse Recommendation ChangeChange (it being agreed that any written notice to Parent of the Company’s intention to make a Company Adverse Recommendation Change prior to effecting such Company Adverse Recommendation Change in accordance with Section 6.2 shall not result in Parent having a termination right pursuant to this Section 8.1.3(i)), (B) after public announcement by any Person of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parentshall have Deliberately violated or breached in any material respect Section 6.2, or (C) fails to include the Company Board Recommendation shall have Deliberately violated or breached Section 6.16 in a manner that has a material adverse impact on the Proxy Statementtiming of, or the ability to obtain, the Company Stockholder Approval; or (ii) if the Company shall have breached or failed to perform any of its covenants contained in this Agreement or any representation or warranty of the Company contained in this Agreement shall not be true and correct, which breach, failure to perform or failure to be true and correct (A) would give rise to the failure of one of the conditions set forth in Section 7.2.1 or Section 7.2.2 to be satisfied and (B) is incapable of being cured or has not been cured by the Company within 30 calendar days after written notice has been given by Parent to the Company of such breach, failure to perform or failure to be true and correct (or, if earlier, by the End Date); provided, however, that Parent may not terminate this Agreement pursuant to this Section 8.1.3(ii) if, at the time such termination would otherwise take effect in accordance with the foregoing, Parent or Merger Sub is in material breach of this Agreement; or

By Parent. (i) if Company shall have breachedif, violated or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach, violation or failure to perform, either individually or in the aggregate, if occurring or continuing on the Closing Date (A) would result in the failure of any of the conditions set forth in Section 8.2(a) or 8.2(b) (a “Company Terminating Breach”) and (B) is not cured or cannot be cured or waived prior to the earlier receipt of (i) forty-five (45) days following notice to Company from Parent of such breach or failure and (ii) the Outside Date; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if a Parent Terminating Breach shall have occurred and be continuing at the time Parent delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); or (ii) prior to obtaining the Company Stockholder Approval, if Company or (A) the Company Board (or any committee thereof (Athereof) shall have effected a Company Adverse Recommendation ChangeChange (it being agreed that any written notice to Parent of the Company’s intention to make a Company Adverse Recommendation Change prior to effecting such Company Adverse Recommendation Change in accordance with Section 6.2 shall not result in Parent having a termination right pursuant to this Section 8.1.3(i)), (B) after public announcement by any Person of a Company Acquisition Proposal, fails to recommend against such Company Acquisition Proposal and to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of being requested to do so by Parentshall have Deliberately violated or breached in any material respect Section ‎6.2, or (C) fails to include the Company Board Recommendation shall have Deliberately violated or breached Section 6.16 in a manner that has a material adverse impact on the Proxy Statementtiming of, or the ability to obtain, the Company Stockholder Approval; or (ii) if the Company shall have breached or failed to perform any of its covenants contained in this Agreement or any representation or warranty of the Company contained in this Agreement shall not be true and correct, which breach, failure to perform or failure to be true and correct (A) would give rise to the failure of one of the conditions set forth in Section ‎7.2.1 or Section ‎7.2.2 to be satisfied and (B) is incapable of being cured or has not been cured by the Company within 30 calendar days after written notice has been given by Parent to the Company of such breach, failure to perform or failure to be true and correct (or, if earlier, by the End Date); provided, however, that Parent may not terminate this Agreement pursuant to this Section ‎8.1.3(ii) if, at the time such termination would otherwise take effect in accordance with the foregoing, Parent or Merger Sub is in material breach of this Agreement; or