Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. (b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. (c) The Parties’ rights in this Section 9.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 4 contracts
Samples: Merger Agreement (Teekay LNG Partners L.P.), Merger Agreement (Teekay Corp), Merger Agreement (International Seaways, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur for which monetary damages, even if available, would not be an adequate remedy, in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breachedbreached (including by any Party failing to take such actions as are required of it hereunder in order to consummate this Agreement). It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIISection 6, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 7.4 are an integral part of this Agreement, without which none of the Transactions Parties would have entered into this Agreement, and each Party hereby waives any objections to any remedy referred to in this Section 9.14 7.4 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equityLaw). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.147.4, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedyremedy and each Party irrevocably waives any right that it may have to require the obtaining, furnishing, posting or providing of any such bond or other security.
Appears in 3 contracts
Samples: Merger Agreement (M.D.C. Holdings, Inc.), Voting and Support Agreement (Mandarich David D), Voting and Support Agreement (Mizel Larry A)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIISection 9.1, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 10.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.14 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.14, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
(d) Subject to Section 9.2(f), the Parties further agree that (x) by seeking the remedies provided for in this Section 10.14, a Party shall not in any respect waive its right to obtain any other form of relief that may be available to a Party under this Agreement and (y) nothing contained in this Section 10.14 shall require any Party to institute any Proceeding for (or limit any Party’s right to institute any Proceeding for) specific performance under this Section 10.14 before exercising any termination right under Section 9.1 (and pursuing damages after such termination), nor shall the commencement of any Proceeding pursuant to this Section 10.14 or anything contained in this Section 10.14 restrict or limit any Party’s right to terminate this Agreement in accordance with the terms of Section 9.1 or pursue any other remedies to the extent available under this Agreement.
Appears in 3 contracts
Samples: Business Combination Agreement (Aon PLC), Business Combination Agreement (Willis Towers Watson PLC), Business Combination Agreement (Willis Towers Watson PLC)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
(d) Notwithstanding anything in this Agreement to the contrary, in the event of a breach of this Agreement by Parent or Merger Sub, the Company’s sole and exclusive remedy shall be to seek specific performance or other equitable remedies in accordance with this Section 9.14, unless specific performance or such other equitable remedies have been determined by a court of competent jurisdiction to be unavailable or an inappropriate remedy for such breach, in which case the Company may seek money damages for such breach in accordance with the terms of this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Allergan Inc), Merger Agreement (Warner Chilcott LTD), Merger Agreement (Actavis PLC)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage, for which monetary damages (even if available) would not be an adequate remedy, would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.10, including the limitations set forth in Section 10.10(c), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including an injunction and other equitable relief to prevent breaches of this Agreement by the other Parties and, in the case of the Company, an injunction, specific performance or other equitable relief to enforce the obligations of the Parent Parties, to cause the Equity Financing to be funded and to any further equitable relief. Each of effect the Parties hereby acknowledges and agrees that it may be difficult Closing, in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish law or equity. If any Party brings any Action to enforce specifically the availability of specific performance of the obligations hereunder terms and provisions hereof, the Outside Date shall automatically be extended by (x) the amount of time during which such Action is pending, plus twenty (20) Business Days or any (y) such other injunctive relieftime period established by the court presiding over such Action.
(c) Notwithstanding anything herein to the contrary, the Company shall have the right to obtain an injunction, specific performance or other equitable relief to enforce the obligations of HoldCo, Parent and Merger Sub to cause the Equity Financing to be funded and to effect the Closing only in the event that (i) all conditions set forth in Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived in accordance with this Agreement, (ii) HoldCo, Parent and Merger Sub have failed to complete the Closing by the date the Closing is required to have occurred pursuant to Section 2.2, (iii) the Debt Financing or the Alternative Financing has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, and (iv) the Company has irrevocably confirmed in writing that (A) all conditions set forth in Section 8.3 have been satisfied or that the Company is waiving any of the conditions to the extent not so satisfied in Section 8.3 (other than those conditions that by their terms are to be satisfied at the Closing) and (B) if specific performance is granted and the Equity Financing and Debt Financing are funded, then it would take such actions required of it by this Agreement to cause the Closing to occur. For the avoidance of doubt, in no event shall the Company be entitled to specific performance to cause HoldCo, Parent or Merger Sub to cause the Equity Financing to be funded or to effect the Closing in accordance with Section 2.2 if the Debt Financing or the Alternative Financing (as applicable) has not been funded and will not be funded at the Closing even if the Equity Financing is funded at the Closing.
(d) The Parties’ rights in this Section 9.14 are right to specific performance is an integral part of the Transactions and each Party hereby waives (i) any objections to defenses in any remedy referred to in this Section 9.14 (action for an injunction or other appropriate form of specific performance or equitable relief, including any objection on the basis defense that there is an adequate a remedy at Law law would be adequate or that an award of such remedy specific performance is not an appropriate remedy for any reason at law or equity and (ii) any requirement under any Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for to post a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition prerequisite to obtaining an injunction or other appropriate form of specific performance or equitable relief. Notwithstanding anything herein to the contrary, (x) while the Parties may pursue both a grant of specific performance and the payment of the amounts set forth in Section 9.3, none of the Parent Parties, on the one hand, nor the Company, on the other hand, shall be permitted or entitled to receive both a grant of specific performance that results in a Closing and payment of such amounts, and (y) upon the payment of such amounts, the remedy of specific performance shall not be available against the party making such payment and, if such party is any Parent Party, any other member of the HoldCo Group or, if such remedyparty is the Company, any other member of the Company Group.
Appears in 2 contracts
Samples: Merger Agreement (New Frontier Public Holding Ltd.), Merger Agreement (New Frontier Health Corp)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Offer, the Merger or the other Transactions) is not performed in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 10.9, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party entitled under the terms of this Agreement does not diminish the availability of specific performance of the obligations hereunder at law or any other injunctive reliefin equity.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.. IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: Executive Vice President, Corporate Development & Salesforce Ventures By /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: Vice President By /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: President and Chief Executive Officer For the purposes of this Agreement, the term:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Salesforce Com Inc), Merger Agreement (Tableau Software Inc)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 9.14, including the limitations set forth in Section 9.14(c), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) Notwithstanding Section 9.14(b), it is acknowledged and agreed that the Company shall be entitled to specific performance of Parent’s obligation pursuant to the terms of this Agreement to consummate the Mergers only in the event that each of the following conditions has been satisfied: (i) all of the conditions in Sections 7.1, 7.2 and 7.3 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing or the failure of which to be satisfied is caused by a material breach by Parent, Merger Sub or Partnership Merger Sub of its representations, warranties, covenants or agreements contained in this Agreement), (ii) the full amount (i.e. before giving effect to any loan reduction provisions in the Debt Commitment Letter; it being understood that any reserve requirements under the Debt Commitment Letter shall not be deemed a loan reduction) of the proceeds of the Debt Financing has been funded or will be funded at the Closing and (iii) Parent, Merger Sub and Partnership Merger Sub have failed to complete the Closing in accordance with Section 1.3. For the avoidance of doubt, in no event shall the Company be entitled to enforce or seek to enforce specifically Parent’s obligations to consummate the Mergers if the full amount (i.e. before giving effect to any loan reduction provisions in the Debt Commitment Letter; it being understood that any reserve requirements under the Debt Commitment Letter shall not be deemed a loan reduction) of the proceeds of the Debt Financing has not been funded or will not be funded at the Closing.
(d) The Parties’ rights in this Section 9.14 are right of specific enforcement is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 9.14. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition to obtaining any such remedyinjunction all in accordance with the terms of this Section 9.14.
Appears in 2 contracts
Samples: Merger Agreement (Northstar Realty Finance Corp.), Merger Agreement (Griffin-American Healthcare REIT II, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIIIX, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.. IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. EXPEDIA, INC. By /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Executive Vice President HMS 1 INC. By /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Assistant Secretary HOMEAWAY, INC. By /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Chief Executive Officer For the purposes of this Agreement, the term:
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Expedia, Inc.), Agreement and Plan of Reorganization (Homeaway Inc)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIIIX, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement (including, without limitation, Parent’s and to any further equitable relief. Each of Acquisition Sub’s obligations under Section 7.13 and the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the Company’s obligations hereunder or any other injunctive reliefunder Section 7.14).
(c) The Parties’ rights in this Section 9.14 10.13 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.13 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.13, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior Prior to the termination of this Agreement pursuant to Article VIIIVII, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) The Parties’ rights in this Section 9.14 are right of specific enforcement is an integral part of the Transactions Merger and other transactions contemplated by this Agreement and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 8.11. In the event that any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement, or to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition to obtaining any such remedyinjunction.
Appears in 2 contracts
Samples: Merger Agreement (Care Capital Properties, Inc.), Merger Agreement (Sabra Health Care REIT, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur and that remedies at law would not be adequate in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each In any action for such injunction, decree, order or other relief, each Party waives the defense of an adequate remedy at law and waives any requirement for the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence securing or posting of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefbond in connection with such remedy.
(c) The Parties’ rights in this Section 9.14 10.13 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.13 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.13, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 2 contracts
Samples: Merger Agreement (Kindred Biosciences, Inc.), Merger Agreement (Elanco Animal Health Inc)
Enforcement; Remedies. (a) Except as otherwise expressly provided hereinin this Section 10.11, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(c) and Section 10.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including to any further equitable relief. Each seek an injunction or injunctions to prevent breaches of this Agreement by the other Parties and, in the case of the Parties hereby acknowledges and agrees that it may be difficult Company, to prove damages with reasonable certaintyseek an injunction or injunctions, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship or other equitable relief to enforce Parent’s and/or Merger Sub’s obligations to consummate the Parties. Each of the Parties hereby further acknowledges that the existence of Closing, in addition to any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder law or any other injunctive reliefequity.
(c) The Parties’ rights in this Section 9.14 are right of specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition injunction all in accordance with the terms of this Section 10.11.
(d) The Parties further acknowledge and agree that the right of the Company, or any member of the Company Group, to obtaining obtain an injunction, specific performance or other equitable relief to enforce Parent’s or Merger Sub’s obligations to consummate the Closing, shall be subject to the requirements that (i) Parent and Merger Sub are required to consummate the Closing pursuant to Section 2.02; and (ii) the Company has irrevocably confirmed in writing that it would take such actions that are within its control to cause the consummation of the Merger and the other Transactions to occur.
(e) If, prior to the Outside Date, any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date shall automatically be extended by (x) the amount of time during which such remedyLegal Proceeding is pending, plus twenty (20) business days, or (y) such other time period established by the court of competent jurisdiction presiding over such Legal Proceeding.
Appears in 2 contracts
Samples: Merger Agreement (LAIX Inc.), Merger Agreement (Yintech Investment Holdings LTD)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIISection 9.1, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 10.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.14 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.14, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
(d) Subject to Section 9.2(d)(ii), the Parties further agree that (x) by seeking the remedies provided for in this Section 10.14, a Party shall not in any respect waive its right to obtain any other form of relief that may be available to a Party under this Agreement and (y) nothing contained in this Section 10.14 shall require any Party to institute any Proceeding for (or limit any Party’s right to institute any Proceeding for) specific performance under this Section 10.14 before exercising any termination right under Section 9.1 and pursuing damages after such termination, nor shall the commencement of any Proceeding pursuant to this Section 10.14 or anything contained in this Section 10.14 restrict or limit any Party’s right to terminate this Agreement in accordance with the terms of Section 9.1 or pursue any other remedies to the extent available under this Agreement.
Appears in 2 contracts
Samples: Business Combination Agreement (Bungeltd), Business Combination Agreement (Bungeltd)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Merger or the other Transactions) is not performed performed, or is threatened to be not performed, in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that, in addition to any other remedy that prior may be available to the termination of this Agreement pursuant to Article VIIIit at law or in equity, including monetary damages, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 9.7, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party is entitled under the terms of this Agreement does not diminish Agreement. The Parties further agree that no Party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.11(b), and each Party waives any objection to the availability imposition of such relief or any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. Notwithstanding the foregoing, in no event shall NIC or any of its Subsidiaries or equityholders be entitled to seek the remedy of specific performance of this Agreement directly against any Financing Source, solely in their respective capacities as lenders or arrangers in connection with the obligations hereunder or any other injunctive reliefFinancing.
(c) The Parties’ rights in this Section 9.14 9.11 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.11 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.149.11, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 2 contracts
Samples: Merger Agreement (Nic Inc), Merger Agreement (Tyler Technologies Inc)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 9.14, including the limitations set forth in Section 9.14(c), it is agreed that in the event of a breach prior to the termination of this Agreement pursuant to Article VIII, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) Notwithstanding Section 9.14(b), it is acknowledged and agreed that the Company shall be entitled to specific performance of Parent’s obligation pursuant to the terms of this Agreement to consummate the Merger only in the event that each of the following conditions have been satisfied: (i) all of the conditions in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing or the failure of which to be satisfied is caused by a material breach by Parent or Merger Sub of its representations, warranties, covenants or agreements contained in this Agreement) and (ii) Parent and Merger Sub have failed to complete the Closing in accordance with Section 1.2.
(d) Notwithstanding Section 9.14(b), it is acknowledged and agreed that Parent shall be entitled to specific performance of the Company’s obligation pursuant to the terms of this Agreement to consummate the Merger only in the event that each of the following conditions have been satisfied: (i) all of the conditions in Section 7.1 and Section 7.3 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing or the failure of which to be satisfied is caused by a material breach by the Company of its representations, warranties, covenants or agreements contained in this Agreement) and (ii) the Company has failed to complete the Closing in accordance with Section 1.2.
(e) The Parties’ rights in this Section 9.14 are right to obtain specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 9.14. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition to obtaining any such remedyinjunction all in accordance with the terms of this Section 9.14.
Appears in 2 contracts
Samples: Merger Agreement (Aviv Reit, Inc.), Merger Agreement (Omega Healthcare Investors Inc)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions provision of this Agreement (including failing to take (or refrain from taking) such actions as are required of it hereunder pursuant to Section 2 and Section 3) is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIISection 6, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 11.1 are an integral part of the Transactions this Agreement and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection 11.1 on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any PartyLaw. In the event any Party seeks any remedy referred to in this Section 9.1411.1, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 2 contracts
Samples: Support Agreement (First Advantage Corp), Support Agreement (Sterling Check Corp.)
Enforcement; Remedies. (a) Except as otherwise expressly provided hereinin this Section 10.11, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(c) and Section 10.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of seek specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including to any further equitable relief. Each seek an injunction or injunctions to prevent breaches of this Agreement by the other Parties and, in the case of the Parties hereby acknowledges and agrees that it may be difficult Company, to prove damages with reasonable certaintyseek an injunction or injunctions, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not or other equitable relief to enforce Parent’s and/or Merger Sub’s obligations to consummate the Closing or to cause an undue hardship to the Parties. Each consummation of the Parties hereby further acknowledges that financing contemplated in the existence of Equity Commitment Letter, in addition to any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder Law or any other injunctive reliefequity.
(c) The Parties’ rights in this Section 9.14 are right of specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as injunction all in accordance with the terms of this Section 10.11.
(d) The Parties further acknowledge and agree that the Company shall have the right to obtain an injunction, specific performance or other equitable relief to enforce Parent’s and Merger Sub’s obligations to cause the Equity Financing to be funded and to effect the Closing only in the event that (i) all conditions set forth in Section 8.01 and Section 8.02 (other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, (ii) Parent and Merger Sub have failed to complete the Closing by the date the Closing is required to have occurred pursuant to Section 2.02, and (iii) the Company has irrevocably confirmed in writing that (A) all conditions set forth in Section 8.03 have been satisfied or that the Company is waiving any of the conditions to the extent not so satisfied in Section 8.03 (other than those conditions that by their terms are to be satisfied at the Closing) and (B) if specific performance is granted and the Equity Financing is funded, then it would take such actions required of it by this Agreement to cause the Closing to occur.
(e) Notwithstanding anything herein to the contrary, (x) none of Parent and Merger Sub, on the one hand, nor the Company, on the other hand, shall be permitted or entitled to receive both a condition grant of specific performance that results in a Closing and payment of any of the amounts set forth in Section 9.02(b), and (y) upon the payment of such amounts, the remedy of specific performance shall not be available against the party making such payment and, if such party is Parent or Merger Sub, any other member of the Parent Group or, if such party is the Company, any other member of the Company Group.
(f) If, prior to obtaining the Outside Date, any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date shall automatically be extended by (x) the amount of time during which such remedyLegal Proceeding is pending, plus twenty (20) Business Days, or (y) such other time period established by the court of competent jurisdiction presiding over such Legal Proceeding.
Appears in 2 contracts
Samples: Merger Agreement (BlueCity Holdings LTD), Merger Agreement (Ma Baoli)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Merger or the other Transactions) is not performed in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 9.9, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party entitled under the terms of this Agreement does not diminish the availability at law or in equity. The Company’s pursuit of an injunction, specific performance or other equitable remedies at any time shall not be deemed an election of remedies or waiver of the obligations hereunder or right to pursue any other injunctive reliefright or remedy to which the Company may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by the Company and its shareholders.
(c) The Parties’ rights in this Section 9.14 9.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.149.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 2 contracts
Samples: Merger Agreement (Tapestry, Inc.), Agreement and Plan of Merger (Capri Holdings LTD)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 11.13, including the limitations set forth in Section 11.13(c) and Section 11.13(d), it is agreed that in the event of a breach prior to the termination of this Agreement pursuant to Article VIIIIX, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) Notwithstanding Section 11.13(b), it is acknowledged and agreed that Company shall be entitled to specific performance of Parent’s obligation pursuant to the terms of this Agreement to consummate the Merger only in the event that each of the following conditions have been satisfied: (i) all of the conditions in Section 8.1 and Section 8.2 have been satisfied and (ii) Parent, Parent Operating Partnership and Merger Sub have failed to complete the Closing in accordance with Section 1.2.
(d) Notwithstanding Section 11.13(b), it is acknowledged and agreed that Parent shall be entitled to specific performance of Company’s obligation pursuant to the terms of this Agreement to consummate the Merger only in the event that each of the following conditions have been satisfied: (i) all of the conditions in Section 8.1 and Section 8.3 have been satisfied and (ii) Company has failed to complete the Closing in accordance with Section 1.2.
(e) The Parties’ rights in this Section 9.14 are right to obtain specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement, all in accordance with the terms of this Section 11.13. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as injunction, all in accordance with the terms of this Section 11.13. In the event that a condition Party initiates a proceeding seeking equitable relief pursuant to obtaining any this Section 11.13, the Outside Date shall automatically be extended until such remedyproceeding is finally resolved.
Appears in 2 contracts
Samples: Merger Agreement (Colony Capital, Inc.), Merger Agreement (Starwood Waypoint Residential Trust)
Enforcement; Remedies. (a) Except as otherwise expressly provided hereinin this Section 11.11, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 11.11, including the limitations set forth in Section 11.11(c) and Section 11.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including to any further equitable relief. Each seek an injunction or injunctions to prevent breaches of this Agreement by the other Parties and, in the case of the Parties hereby acknowledges and agrees that it may be difficult Company, to prove damages with reasonable certaintyseek an injunction or injunctions, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not or other equitable relief to enforce Super ROI’s and/or Parent’s obligations to consummate the Closing or to cause an undue hardship to the Parties. Each consummation of the Parties hereby further acknowledges that the existence of Financing, in addition to any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder law or any other injunctive reliefequity.
(c) The Parties’ rights in this Section 9.14 are right of specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 11.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition injunction all in accordance with the terms of this Section 11.11.
(d) The Parties further acknowledge and agree that the right of the Company, or any member of the Company Group, to obtaining obtain an injunction, specific performance or other equitable relief to enforce Super ROI’s or Parent’s obligations to consummate the Closing or cause the Financing to be funded at the Effective Time, shall be subject to the requirements that (i) Super ROI and Parent are required to consummate the Closing pursuant to Section 3.02; (ii) the Company has irrevocably confirmed in writing that if the Financing is funded, then it would take such actions that are within its control to cause the consummation of the Merger and the other Transactions to occur; and (iii) the Financing has not been funded and Super ROI and Parent have not consummated the Merger.
(e) If, prior to the Outside Date, any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date shall automatically be extended by (x) the amount of time during which such remedyLegal Proceeding is pending, plus twenty (20) business days, or (y) such other time period established by the court of competent jurisdiction presiding over such Legal Proceeding.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger) and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 9.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any PartyParty and hereby further waives any defense in any action for specific performance that a remedy at law would be adequate. In the event any Party seeks any remedy referred to in this Section 9.149.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Samples: Agreement and Plan of Merger (First Majestic Silver Corp)
Enforcement; Remedies. (a) Except as otherwise expressly provided hereinin this Section 10.11, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(c) and Section 10.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including to any further equitable relief. Each seek an injunction or injunctions to prevent breaches of this Agreement by the other Parties and, in the case of the Parties hereby acknowledges and agrees that it may be difficult Company, to prove damages with reasonable certaintyseek an injunction or injunctions, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not or other equitable relief to enforce Sohu Game’s and/or Parent’s obligations to consummate the Closing or to cause an undue hardship to the Parties. Each consummation of the Parties hereby further acknowledges that the existence of Financing, in addition to any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder law or any other injunctive reliefequity.
(c) The Parties’ rights in this Section 9.14 are right of specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition to obtaining any such remedyinjunction all in accordance with the terms of this Section 10.11.
Appears in 1 contract
Samples: Plan of Merger (Changyou.com LTD)
Enforcement; Remedies. (a) Except as otherwise expressly provided hereinin this Section 10.11, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(c) and Section 10.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including to any further equitable relief. Each seek an injunction or injunctions to prevent breaches of this Agreement by the other Parties and, in the case of the Parties hereby acknowledges and agrees that it may be difficult Company, to prove damages with reasonable certaintyseek an injunction or injunctions, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not or other equitable relief to enforce Sohu Game’s and/or Parent’s obligations to consummate the Closing or to cause an undue hardship to the Parties. Each consummation of the Parties hereby further acknowledges that the existence of Financing, in addition to any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder law or any other injunctive reliefequity.
(c) The Parties’ rights in this Section 9.14 are right of specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition injunction all in accordance with the terms of this Section 10.11.
(d) The Parties further acknowledge and agree that the right of the Company, or any member of the Company Group, to obtaining obtain an injunction, specific performance or other equitable relief to enforce Sohu Game’s or Parent’s obligations to consummate the Closing or cause the Financing to be funded at the Effective Time, shall be subject to the requirements that (i) Sohu Game and Parent are required to consummate the Closing pursuant to Section 2.02; (ii) the Company has irrevocably confirmed in writing that if the Financing (or any Alternative Financing, if applicable) is funded, then it would take such remedyactions that are within its control to cause the consummation of the Merger and the other Transactions to occur; and (iii) the Financing has not been funded and Sohu Game and Parent have not consummated the Merger.
(e) If, prior to the Outside Date, any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date shall automatically be extended by (x) the amount of time during which such Legal Proceeding is pending, plus twenty (20) business days, or (y) such other time period established by the court of competent jurisdiction presiding over such Legal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (Sohu.com LTD)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) . The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions provision of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Merger) is not performed in accordance with its specific terms or is otherwise breached. It is agreed that that, prior to the valid termination of this Agreement pursuant to Article VIIIIX, but subject to Section 10.12(b), each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each .
(b) Notwithstanding anything in this Agreement to the contrary, it is acknowledged and agreed that the Company shall be entitled to specific performance to cause Parent to effect the Closing in accordance with Section 2.2 if, but only if, (i) all of the Parties hereby acknowledges conditions set forth in Section 8.1 and agrees Section 8.2 have been satisfied (other than any such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing) or waived in writing by Parent as of the date the Closing should have occurred pursuant to Section 2.2, (ii) the Financing has been or would be funded at the Closing if the Closing occurred, (iii) the Company has given irrevocable written notice to Parent that (A) all of the conditions set forth in Section 8.3 have been satisfied (other than any such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing) or the Company waives any unsatisfied conditions and (B) it may be difficult is ready, willing and able to prove damages with reasonable certaintyconsummate the Closing and, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or if specific performance is granted, will not cause an undue hardship take actions necessary to consummate the Closing and (iv) Parent fails to consummate the Closing on or prior to the Parties. Each of date on which the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefClosing should have occurred pursuant to Section 2.2.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions Merger and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection 10.12 on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any PartyLaw. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIIIX, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.. IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Financial Officer By /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: President IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By /s/ Xxxxx X. Xxxx Name: Xx. Xxxxx X. Fink Title: Chief Executive Officer For the purposes of this Agreement, the term:
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIIIX, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.. IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Financial Officer By /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: President IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By /s/ Xxxxx X. Xxxx Name: Xx. Xxxxx X. Fink Title: Chief Executive Officer Annex A
Appears in 1 contract
Samples: Merger Agreement (Tesla, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 9.13, including the limitations set forth in Section 9.13(c), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) Notwithstanding Section 9.13(b), it is acknowledged and agreed that the Company shall be entitled to specific performance of Parent’s obligation pursuant to the terms of this Agreement to consummate the Merger only in the event that each of the following conditions has been satisfied: (i) all of the conditions in Sections 7.1, 7.2 and 7.3 have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing or the failure of which to be satisfied is caused by a material breach by Parent or Merger Sub of its representations, warranties, covenants or agreements contained in this Agreement) and (ii) Parent, and Merger Sub have failed to complete the Closing in accordance with Section 1.2.
(d) The Parties’ rights in this Section 9.14 are right of specific enforcement is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 9.13. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition to obtaining any such remedyinjunction all in accordance with the terms of this Section 9.13.
Appears in 1 contract
Samples: Merger Agreement (NorthStar/RXR New York Metro Real Estate, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to seek an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, Party and to a decree or order of seek specific performance to specifically enforce of the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) Notwithstanding anything herein to the contrary, the Company shall have the right to obtain an injunction, specific performance or other equitable relief to enforce Parent’s and Merger Sub’s obligations to consummate the Merger and the other Transactions only in the event that (i) all of the conditions set forth in Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied or waived and (ii) the Company has irrevocably confirmed by notice to Parent that all conditions set forth in Section 8.3 have been satisfied or that it has waived any unsatisfied conditions set forth in Section 8.3.
(d) The Parties’ rights in this Section 9.14 are right to specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such Order all in accordance with the terms of this Section 10.11.
(e) If, prior to the Outside Date, any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date shall automatically be extended by (x) the amount of time during which such Legal Proceeding is pending, plus twenty (20) Business Days or as a condition to obtaining any (y) such remedyother time period established by the court of competent jurisdiction presiding over such Legal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (GLORY STAR NEW MEDIA GROUP HOLDINGS LTD)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 9.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.149.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.. IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: President & Chief Executive Officer By: /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Executive Vice-President & Chief Financial Officer By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Vice-President By: /s/ Xxx X. Xxxxxxx Name: Xxx X. Xxxxxxx Title: Chairman, President and Chief Executive Officer For the purposes of this Agreement, the term:
Appears in 1 contract
Samples: Merger Agreement (Encana Corp)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Offer, the Merger or the other Transactions) is not performed in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 10.9, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party entitled under the terms of this Agreement does not diminish the availability of specific performance of the obligations hereunder at law or any other injunctive reliefin equity.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Samples: Merger Agreement
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Restricted Party will acknowledges that it would be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such difficult to calculate the Company Group’s damages from Restricted Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions ’s breach of this Agreement is not performed in accordance with its specific terms and that money damages would therefore be an inadequate remedy. Accordingly, upon such breach, Restricted Party acknowledges that the Company Group, or is otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIIIany Company Group Member, each Party may seek and shall be entitled to an injunction temporary, preliminary, and/or permanent injunctive relief against Restricted Party, and/or other appropriate orders to restrain such breach. Nothing in this provision shall limit the Company Group from seeking any other damages or injunctions to prevent or remedy any breaches or threatened breaches relief provided by applicable law for breach of this Agreement by or any other Party, to a decree section or order of provision hereof. The parties agree that the Company Group may obtain specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party Company Group shall not be required to obtainpost bond in the event it is necessary for the Company Group to obtain temporary or preliminary injunctive relief, furnish, post or provide any bond requirement hereby being expressly waived by Restricted Party. Restricted Party further understands and agrees that (i) in the event of a breach or violation, or threatened breach or violation, of any of the respective covenants and agreements set forth in this Agreement, the Company Group shall be entitled to receive all such amounts to which they would be entitled as damages under law or at equity, and (ii) in the event of a finally determined breach or violation of Section 1(a) or Section 1(b) set forth in this Agreement, the obligations of the Company Group to make any further payments or distributions to Restricted Party pursuant to any other security agreement, contract or arrangement (including, without limitation, the Business Combination Agreement or any employment agreement, offer letter or similar agreement) between any Company Group Member and Restricted Party relating to or arising out of Restricted Party’s relationship with the Company Group, shall be suspended until Restricted Party shall cease violating or breaching (or threatening to breach or violate) Restricted Party’s respective covenants and agreements contained in connection with this Agreement and the Company Group shall have received reasonable assurances from Restricted Party that he will no longer engage in the same, at which time the previously suspended payments and distributions shall be made to Restricted Party, which amounts shall be reduced by the damages and costs suffered or incurred by the Company Group related to such breach or violation. Nothing herein shall be construed as a condition prohibiting any Company Group Member from pursuing any other legal or equitable remedies that may be available to obtaining them for any such remedybreach or violation, including the recovery of damages from Restricted Party. If any Company Group Member files suit to enforce the covenants contained herein, and is the prevailing party in such suit, it shall be entitled to recover, in addition to all other damages or remedies provided for herein, its costs incurred in prosecuting said suit, including reasonable attorneys’ fees.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Transactions) is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIIIX, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Enforcement; Remedies. (a) The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. It is accordingly agreed that the parties hereto shall be entitled seek an injunction or injunctions to prevent breaches of this Agreement and to specifically enforce the terms hereof, this being in addition to any other remedy to which they are entitled at law or in equity. Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law law or equity upon such Partyparty, and the exercise by a Party party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur . IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Chairman, Chief Executive Officer and President By /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: President By /s/ Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx Title: President and Chief Executive Officer Notwithstanding any other provisions of the Offer, but subject to the terms and conditions set forth in the event that any of Merger Agreement, and in addition to (and not in limitation of) Purchaser’s rights and obligations to extend or amend the Offer in accordance with the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this Merger Agreement and to any further equitable relief. Each applicable rules and regulations of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certaintySEC, that it may be difficult to procure suitable substitute performanceincluding Rule 14e-l(c) under the Exchange Act, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party Purchaser shall not be required to obtainaccept for payment or pay for, furnishand may delay the acceptance for payment of or, post subject to the restrictions referred to above, the payment for, any validly tendered Shares if (i) the Minimum Condition shall not have been satisfied at any then scheduled Expiration Date, (ii) any waiting period under the HSR Act applicable to the transactions contemplated by the Merger Agreement has not expired or provide terminated prior to the termination or expiration of the Offer at or prior to any bond then scheduled Expiration Date (the “HSR Condition”), (iii) any other Required Approvals shall not have been obtained or other security any waiting period (or extension thereof) or mandated filing shall not have lapsed or been made either unconditionally or on terms satisfactory to Parent at or prior to any then scheduled Expiration Date (collectively, the “Governmental Approval Condition”), or (iv) any of the following events has occurred and be continuing at the scheduled Expiration Date:
(a) there shall be threatened in writing or pending any suit, action, investigation or proceeding by any Governmental Entity of competent jurisdiction against Parent, Purchaser or the Company (i) challenging the acquisition by Purchaser (or Parent on Purchaser’s behalf) of any Shares pursuant to the Offer, or seeking to restrain or prohibit the making or consummation of the Offer or the Merger or make materially more costly the making of the Offer, (ii) seeking to impose material limitations on the ability of Purchaser (or Parent on Purchaser’s behalf), or render Purchaser (or Parent on Purchaser’s behalf) unable, to accept for payment, pay for or purchase any or all of the Shares pursuant to the Offer or the Merger, or seeking to require divestiture thereof or any material assets of Parent, Purchaser or the Company, (iii) seeking to prohibit or impose any material limitations on the ownership or operation by Parent (or any of its Subsidiaries) of all or any portion of businesses or assets of Parent, the Company or any of their respective Subsidiaries as a result of or in connection with the Transactions, or to compel Parent, the Company or any of their respective Subsidiaries to dispose of, license or hold separate any material portion of the businesses or assets of Parent, the Company or any of their respective Subsidiaries as a result of or in connection with the Transactions, (iv) seeking to impose material limitations on the ability of Parent or Purchaser effectively to exercise full rights of ownership of the Shares, including the right to vote the Shares purchased by it on all matters properly presented to the stockholders of the Company, or (v) which otherwise would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
(b) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or which is deemed applicable pursuant to an authoritative interpretation by or on behalf of a Government Entity to the Offer, the Merger or any other transaction contemplated by the Merger Agreement, or any other action shall be taken by any Governmental Entity, other than the application to the Offer or the Merger of applicable waiting periods under HSR Act or similar waiting periods with respect to the Required Approvals, that (x) is reasonably likely, individually or in the aggregate, to result, directly or indirectly, in any of the consequences referred to in clauses (i) through (v) of paragraph (a) above, or (y) has the effect of making such transactions illegal or which has the effect of prohibiting or otherwise preventing or delaying the consummation of any of the transactions contemplated by the Merger Agreement;
(c) (i) any of the representations and warranties of the Company contained in Sections 3.3 or 3.4 shall not be true and correct in all material respects, each as of the date hereof and as of the expiration date of the Offer with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time (which need only be true and correct in all material respects as of such date or time), or (ii) except as has not had and would not reasonably be expected to have, individually or in the aggregate with all other failures to be true or correct, a Company Material Adverse Effect, the representations and warranties of the Company contained in this Agreement, other than representations and warranties referenced in clauses (i) or (iii) of this paragraph (c), shall not be true and correct in all respects (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications and other qualifications based upon the concept of materiality or similar phrases contained therein and without giving effect to any modifications or updates to the Company Disclosure Schedule) as of the date of the Merger Agreement and as of the expiration date of the Offer with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time (which need only be true and correct (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications and other qualifications based upon the concept of materiality or similar phrases contained therein and without giving effect to any modifications or updates to the Company Disclosure Schedule) as of such date or time), or (iii) any of the representations and warranties of the Company contained in Section 3.2 shall not be true and correct in all material respects, each as of the date hereof and as of the expiration date of the Offer with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time (which need only be true and correct in all material respects as of such date or time), provided that for purposes of this clause (iii) the standard “true and correct in all material respects” shall not be met if the cost of the Offer to Purchaser is increased by an amount in excess of $2 million;
(d) since the date of the Merger Agreement, any facts, changes, events, developments or circumstances have occurred, arisen or come into existence or become known to the Company, Parent or Purchaser, which is continuing and which has had or would reasonably be expected to have, individually or in the aggregate with all other such facts, changes, events, developments or circumstances, a Company Material Adverse Effect;
(e) the Company shall have breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement prior to the expiration of the Offer (or, in the case of Section 6.1 hereof, shall have intentionally breached or failed in any material respect to perform or comply with such Section 6.1) and such breach or failure shall not have been cured;
(f) Purchaser shall have failed to receive a certificate of the Company, executed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the scheduled Expiration Date, to the effect that the conditions set forth in paragraphs (c) and (e) of this Annex I have not occurred;
(g) there shall have occurred, and continued to exist, (i) any general suspension of, or limitation on prices for, trading in securities on the New York Stock Exchange or Nasdaq or (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States; or
(h) the Merger Agreement shall have been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of Parent and Purchaser, may be asserted by Parent or Purchaser regardless of the circumstances giving rise to such condition, and may be waived by Parent or Purchaser in whole or in part at any time and from time to time and in the sole discretion of Parent or Purchaser, subject in each case to the terms of the Merger Agreement. The foregoing conditions shall be in addition to, and not a limitation of the rights of Parent and Purchaser to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement. Any reference in this Annex I or in the Merger Agreement to a condition or requirement being satisfied shall be deemed met if such condition or requirements is so waived. The failure by Parent or Purchaser at any time to obtaining exercise any of the foregoing rights shall not be deemed a waiver of any such remedyright and, each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
Appears in 1 contract
Samples: Merger Agreement (Cytyc Corp)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(c), it is agreed that prior to the termination of this Agreement pursuant to Article VIIIIX, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) The Parties’ rights in this Section 9.14 are right of specific enforcement is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or injunction all in accordance with the terms of this Section 10.11. IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. Xxxxxxxx Street Properties a condition to obtaining any such remedy.Maryland real estate investment trust By: /s/ XXXXXX X. XXXX Name: Xxxxxx X. Xxxx Title: Interim President and Chief Executive Officer, and Chief Financial Officer Columbus Merger Sub, LLC a Maryland limited liability company By Chamber Street Properties a Maryland real estate investment trust, its Manager By /s/ XXXXXX X. XXXX
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Merger or the other Transactions) is not performed performed, or is threatened to be not performed, in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that, in addition to any other remedy that prior may be available to the termination of this Agreement pursuant to Article VIIIit at law or in equity, including monetary damages, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 9.7, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy to which such Party is entitled under the terms of this Agreement. Notwithstanding anything herein to the contrary, it is hereby acknowledged and agreed that unless this Agreement is validly terminated in accordance with Section 8.1, the Company shall be entitled to specific performance to cause Parent and Merger Sub to cause the Equity Financing to be funded and to consummate the Closing if, and only if, (i) Parent is required to consummate the Closing pursuant to Section 2.2, and Parent fails to consummate the Closing by the date the Closing is required to have occurred pursuant to Section 2.2, (ii) the Debt Financing has been funded or will be funded in accordance with the terms and conditions of the Debt Financing at the Closing if the Equity Financing is funded at the Closing, and (iii) the Company has irrevocably confirmed in writing to Parent that if the Equity Financing and Debt Financing (including any alternative financing that has been obtained in accordance with Section 6.14) are funded, then the Company will take such actions that are required of it to cause the Closing to occur in accordance with Section 2.2 (and the Company has not revoked, withdrawn, modified or conditioned such confirmation) and Parent has failed to consummate the closing within three Business Days after receipt of such irrevocable conditions. For the avoidance of doubt, (i) in no event shall the Company be entitled to specifically enforce (or to bring any action or proceeding in equity seeking to specifically enforce) Parent’s rights under the Commitment Letters to cause the Debt Financing and/or Equity Financing to be funded or to effect the Closing other than as expressly provided in the immediately preceding sentence with respect to the Equity Financing, and (ii) in no event shall the Company be entitled to seek to specifically enforce any provision of this Agreement or to obtain an injunction or injunctions, or to bring any other action or proceeding in equity in connection with the transactions contemplated by this Agreement does not diminish Agreement, against Parent other than under the availability circumstances expressly set forth in this Section 9.11. The Parties further agree that no Party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.11(b), and each Party waives any objection to the imposition of specific performance of the obligations hereunder such relief or any other injunctive reliefright it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
(c) The Parties’ rights in this Section 9.14 9.11 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.11 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Enforcement; Remedies. (a) The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to seek to specifically enforce the terms hereof, this being in addition to any other remedy to which they are entitled at Law or in equity. Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Partyparty, and the exercise by a Party party of any one remedy will shall not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in . Table of Contents IN WITNESS WHEREOF, Parent, Purchaser and the event that any Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. By: /s/ Xxxxxxxx X. XxXxx Name: Xxxxxxxx X. XxXxx Title: Worldwide Chairman, Pharmaceuticals Group Table of Contents By: /s/ Xxxxxxx Xxxx Name: Xxxxxxx Xxxx Title: President Table of Contents By: /s/ Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx Title: Chief Executive Officer and President Table of Contents ANNEX I Notwithstanding any other provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior the Offer, but subject to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce the terms and provisions of this conditions set forth in the Agreement and to any further equitable relief. Each applicable rules and regulations of the Parties hereby acknowledges and agrees that it may SEC, including Rule 14e-l(c) under the Exchange Act, Purchaser shall not be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performancerequired to, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party Parent shall not be required to obtaincause Purchaser to, furnishaccept for payment, post and shall not be obligated to pay for any validly tendered Shares if (a) the Minimum Condition shall not have been satisfied at any then scheduled Expiration Time, (b) any waiting period (and any extension thereof) under the HSR Act applicable to the transactions contemplated by the Agreement has not expired or provide terminated prior to the termination or expiration of the Offer at or prior to any bond then scheduled Expiration Time (the “HSR Condition”), or (c) any of the following conditions exist or has occurred and is continuing at the scheduled Expiration Time:
(i) there shall be pending any suit, action or proceeding by any Governmental Entity that is reasonably likely to prevail in a manner that would (a) prohibit the acquisition by Parent or Purchaser of any Shares under the Offer, restrain or prohibit the consummation of the Transactions, or place limitations on the ownership of Shares (or shares of common stock of the Surviving Corporation) by Parent, Purchaser or any other security affiliate of Parent or obtain from the Company, Parent, Purchaser or any other affiliate of Parent any damages that are material in connection with relation to the Company, (b) prohibit or materially limit the ownership or operation by the Company, Parent or any of their respective Subsidiaries of any portion of any business or of any assets of the Company, Parent or any of their respective Subsidiaries, or compel the Company, Parent or any of their respective Subsidiaries to divest or hold separate any portion of any business or of any assets of the Company, Parent or any of their respective Subsidiaries or (c) prohibit Parent or any of its affiliates from effectively controlling in any material respect the business or operations of the Company or any of the Company Subsidiaries in the case of each of clauses (a) through (c) above, as a result of the Offer or the Merger;
(ii) there shall be in effect any Restraint, which prevents the making of the Offer, the acceptance for payment of any Shares by Parent, Purchaser or any other affiliate of Parent, or the consummation of the Merger or which would reasonably be expected to result, directly or indirectly, in any of the effects referred to in clauses (a) through (c) of paragraph (i) of this Annex I;
(iii) any of the representations and warranties of the Company contained in the Agreement that are qualified as to materiality or Company Material Adverse Effect shall fail to be true and correct, or any of the representations and warranties of the Company contained in the Agreement that are not so qualified shall fail to be true and correct in all material respects, in any such case as of the date of the Agreement or as of the date of acceptance for payment of Shares pursuant to the Offer as though made at such time, except to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date; Table of Contents
(iv) any Company Material Adverse Effect shall have occurred or exist following the execution and delivery of this Agreement and be continuing;
(v) the Company shall have breached or failed, in any material respect, to perform or to comply with any agreement, obligation or covenant to be performed or complied with by it under the Agreement at or prior to the Acceptance Time;
(vi) as of the Expiration Time, Parent shall not have received a condition certificate signed on behalf of the Company by the chief executive officer and the chief financial officer of the Company to obtaining any such remedythe effect that none of the conditions in clause (iii) and (v) have occurred; or
(vii) this Agreement shall have been terminated in accordance with its terms.
Appears in 1 contract
Samples: Merger Agreement (Johnson & Johnson)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. Notwithstanding anything to the contrary contained in this Agreement, no Party may bring any suit, action or proceeding based in whole or in part upon any actual or alleged inaccuracy in any representation or warranty contained in this Agreement other than any such suit, action or proceeding based exclusively on breach of contract and, for the avoidance of doubt, no Party may bring any such suit, action or proceeding based on gross negligence, negligence or breach of statute, except to the extent mandatory applicable Law prohibits the exclusion of liability on such basis.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIIIX, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) The Parties’ rights in this Section 9.14 are right of specific enforcement is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 11.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition to obtaining any such remedyinjunction all in accordance with the terms of this Section 11.11.
Appears in 1 contract
Samples: Merger Agreement (Dana Inc)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party party hereto will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Partyparty, and the exercise by a Party party hereto of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties parties hereto agree that irreparable injury will damage, for which monetary damages would not be an adequate remedy, may occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIIIAgreement, each Party the non-breaching party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) The Parties’ rights in this Section 9.14 are right of specific enforcement of the parties hereto is an integral part of the Transactions transactions contemplated hereby and each Party party hereto hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For , and each party hereto shall be entitled to an injunction or injunctions and to specifically enforce the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such party under this Agreement all in accordance with the terms of this Section 6.12. In the event any Party party hereto seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition to obtaining any such remedyinjunction all in accordance with the terms of this Section 6.12.
Appears in 1 contract
Samples: Voting and Support Agreement (Falcon Minerals Corp)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.12, including the limitations set forth in Section 10.12(c), it is agreed that prior to the termination of this Agreement pursuant to Article VIIIIX, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) The Parties’ rights in this Section 9.14 are right of specific enforcement is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.12. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or injunction all in accordance with the terms of this Section 10.12.
(d) Notwithstanding anything to the contrary contained herein, the Company agrees, on its own behalf and on behalf of the Company Subsidiaries and its and their Affiliates, (i) that none of the Arranger or any of the Lenders (as a condition each such term is defined in the Commitment Letter) nor any other lenders, agents, arrangers or other debt financing sources under the Commitment Letter or any other Financing Sources or any of their respective Affiliates, successors or assigns shall have any liability or obligation to obtaining the Company Entities or any of their respective Affiliates and Subsidiaries (collectively, the “Seller Parties”), (ii) none of the Seller Parties shall have any rights or claims against the Arranger or any Lender (as each such remedyterm is defined in the Commitment Letter) or any other Financing Sources or any of their respective Affiliates in their respective capacities as arrangers, agents, lenders, underwriters or purchasers in connection with the debt financing contemplated by the Commitment Letter or any other Financing, (iii) none of the Seller Parties shall bring, join, support or cooperate with (or assist in bringing or supporting) any claim, action, suit or dispute against the Arranger, the Lenders (as each such term is defined in the Commitment Letter) or any other lenders, agents, arrangers or other Financing Sources, in each case, relating to this Agreement or any of the transactions contemplated herein (including the Commitment Letter) and (iv) the Arranger and the Lenders (as each such term is defined in the Commitment Letter) and other Financing Sources shall be third-party beneficiaries of the restrictions on the remedies of the Xxxx Corporate Income Trust, Inc. Entities set forth in Section 10.7(b).
Appears in 1 contract
Samples: Merger Agreement (Cole Corporate Income Trust, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each the non-breaching Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance Party and to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefAgreement.
(c) The Parties’ rights in this Section 9.14 are right of specific enforcement is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 9.14. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or injunction all in accordance with the terms of this Section 9.14. IN WITNESS WHEREOF, DLR, REIT Merger Sub, DLR OP, Merger Sub GP, OP Merger Sub, the Company and the Company Operating Partnership have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. DIGITAL REALTY TRUST, INC. By: /s/ A. Xxxxxxx Xxxxx Name: A. Xxxxxxx Xxxxx Title: Chief Executive officer PENGUINS REIT SUB, LLC By: DIGITAL REALTY TRUST, INC., Its Sole Member By: /s/ A. Xxxxxxx Xxxxx Name: A. Xxxxxxx Xxxxx Title: Chief Executive officer DIGITAL REALTY TRUST, L.P. By: DIGITAL REALTY TRUST, INC., Its General Partner By: /s/ A. Xxxxxxx Xxxxx Name: A. Xxxxxxx Xxxxx Title: Chief Executive officer PENGUINS OP SUB 2, LLC By: DIGITAL REALTY TRUST, L.P., Its Sole Member By: DIGITAL REALTY TRUST, INC., Its General Partner By: /s/ A. Xxxxxxx Xxxxx Name: A. Xxxxxxx Xxxxx Title: Chief Executive officer PENGUINS OP SUB, LLC By: DIGITAL REALTY TRUST, L.P., Its Member By: DIGITAL REALTY TRUST, INC., Its General Partner By: /s/ A. Xxxxxxx Xxxxx Name: A. Xxxxxxx Xxxxx Title: Chief Executive officer By: PENGUINS OP SUB 2, LLC, Its Member By: DIGITAL REALTY TRUST, L.P., Its Sole Member By: DIGITAL REALTY TRUST, INC., Its General Partner By: /s/ A. Xxxxxxx Xxxxx Name: A. Xxxxxxx Xxxxx Title: Chief Executive officer DUPONT FABROS TECHNOLOGY, INC. By: /s/ Lammot J. du Pont Name: Lammot J. du Pont Title: Chairman of the Board DUPONT FABROS TECHNOLOGY, L.P. By: DUPONT FABROS TECHNOLOGY, INC., its General Partner By: /s/ Lammot J. du Pont Name: Lammot J. du Pont Title: Chairman of the Board
1. Panda Interests LLC
2. DuPontec, Inc.
3. Xxxxxxxx X. Xxxxx The following is a condition summary of (i) the process for addressing the parties’ obligations under the 2007 Tax Protection Agreement and (ii) the terms to obtaining be included in the New Tax Protection Agreement, which will replace the 2007 Tax Protection Agreement with respect to the parties entering into the New Tax Protection Agreement. The Limited Partners of the Company Operating Partnership agreeing to such amendment at signing are referred to as “Protected Partners” below.
1. Quill Loan and/or New Loan: • [Penguins] and [Capitals] will use commercially reasonable efforts to cooperate to obtain Keybank’s consent for [Penguins] to assume and otherwise waive acceleration of the existing loan (the “Quill Loan”) from Keybank to [Quill Equity LLC] in connection with the transaction or, at [Penguins]’ option, obtain a new nonrecourse mortgage loan in an amount equal to at least $104,000,000 (subject to reduction in the event any such remedycurrent guarantors decide not to enter into a new guarantee), with a term of five (5) years on a [Capitals] and/or [Penguins] asset with a value, as determined in good faith by Penguins, at least equal to 150% of amount of the loan (the “New Loan”). • In the event [Penguins] elects to assume the Quill Loan, [Penguins] will obtain a New Loan with a term that does not end before the End Date (as defined below) on or before the maturity date of the Quill Loan and will provide the Protected Partners the opportunity to enter into a guarantee of the New Loan on the “vertical slice” basis described below.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur for which monetary damages, even if available, would not be an adequate remedy, in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breachedbreached (including by any Party failing to take such actions as are required of it hereunder in order to consummate this Agreement). It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 9.12 are an integral part of this Agreement and the Transactions Transactions, without which none of the Parties would have entered into this Agreement, and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equityLaw). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.149.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedyremedy and each Party irrevocably waives any right that it may have to require the obtaining, furnishing, posting or providing of any such bond or other security.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of seek specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including to any further equitable relief. Each seek an injunction to prevent breaches of this Agreement by the other Parties and, in the case of the Parties hereby acknowledges and agrees that it may be difficult Company, to prove damages with reasonable certaintyseek an injunction, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not or other equitable relief to enforce Parent’s and Merger Sub’s obligations to consummate the Closing or to cause an undue hardship to the Parties. Each consummation of the Parties hereby further acknowledges that financing contemplated in the existence of Equity Commitment Letters, in addition to any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder law or any other injunctive reliefequity.
(c) Notwithstanding anything herein to the contrary, the Company shall have the right to obtain an injunction, specific performance or other equitable relief to enforce Parent’s and Merger Sub’s obligations to consummate the Merger and the other Transactions only in the event that (i) all of the conditions set forth in Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied or waived and (ii) the Company has irrevocably confirmed by notice to Parent that all conditions set forth in Section 8.3 have been satisfied or that it has waived any unsatisfied conditions set forth in Section 8.3.
(d) The Parties’ rights in this Section 9.14 are right to specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such Order all in accordance with the terms of this Section 10.11.
(e) If, prior to the Outside Date, any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date shall automatically be extended by (x) the amount of time during which such Legal Proceeding is pending, plus twenty (20) Business Days or as a condition to obtaining any (y) such remedyother time period established by the court of competent jurisdiction presiding over such Legal Proceeding.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) . The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions provision of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Merger) is not performed in accordance with its specific terms or is otherwise breached. It is agreed that that, prior to the valid termination of this Agreement pursuant to Article VIIIIX, but subject to Section 10.12(b), each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each .
(b) Notwithstanding anything in this Agreement to the contrary, it is acknowledged and agreed that the Company shall be entitled to specific performance to cause Parent to effect the Closing in accordance with Section 2.2 if, but only if, (i) all of the Parties hereby acknowledges conditions set forth in Section 8.1 and agrees Section 8.2 have been satisfied (other than any such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing) or waived in writing by Parent as of the date the Closing should have occurred pursuant to Section 2.2, (ii) the Financing has been or would be funded at the Closing if the Closing occurred, (iii) the Company has given irrevocable written notice to Parent that (A) all of the conditions set forth in Section 8.3 have been satisfied (other than any such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing) or the Company waives any unsatisfied conditions and (B) it may be difficult is ready, willing and able to prove damages with reasonable certaintyconsummate the Closing and, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or if specific performance is granted, will not cause an undue hardship take actions necessary to consummate the Closing and (iv) Parent fails to consummate the Closing on or prior to the Parties. Each of date on which the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive reliefClosing should have occurred pursuant to Section 2.2.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions Merger and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection 10.12 on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any PartyLaw. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law law or equity upon such Partyparty, and the exercise by a Party party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 9.13, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party the non-breaching party shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, the Guarantee and, subject to Section 9.13(d) and Section 9.13(e), respectively, the Equity Commitment Letter and Parent’s and Merger Sub’s obligation to enforce the terms of the Debt Financing Documents, in each case by any other party hereto or thereto, and to specifically enforce the terms and provisions herein or therein.
(c) The parties’ right of specific enforcement is an integral part of the Transactions contemplated by this Agreement and, subject to Section 9.13(d), each party hereby waives any objections to the grant of the equitable remedy any breaches of specific performance to prevent or threatened restrain breaches of this Agreement by any other Party, parties to a decree or order of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 (including any objection on the basis that there is an adequate remedy at Law law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law law or equity). For , or that the avoidance of doubt, each Party agrees provisions set forth in Section 8.3 adequately compensate for the harm that there is not an adequate remedy at Law for would result from a breach of this Agreement by or should otherwise be construed to diminish or impair any Partyparty’s right to specific performance hereunder), and, subject to Section 9.13(d), each party shall be entitled to an injunction or injunctions and to specifically enforce the terms and provisions of this Agreement to prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such party under this Agreement, all in accordance with the terms of this Section 9.13. In the event any Party party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or injunction, all in accordance with the terms of this Section 9.13.
(d) Notwithstanding the foregoing or anything to the contrary contained in this Agreement, it is explicitly agreed that the right of the Company to an injunction, specific performance or other equitable remedies in connection with enforcing Parent’s and Merger Sub’s obligation to cause the Equity Financing to be funded to fund the Transactions (but not the right of the Company to such injunctions, specific performance or other equitable remedies for any other reason) shall be subject to the requirements that: (i) all conditions in Section 7.1 and Section 7.2 would have been satisfied if the Closing were to have occurred as of the time the Closing should have occurred in accordance with Section 1.2 (other than those conditions that by their terms are to be satisfied at the Closing, but which are then capable of being satisfied at the Closing but for the failure of the Equity Financing to be funded), (ii) the Debt Financing (including any alternative financing that has been obtained in accordance with Section 6.13(d)) has been funded in accordance with the terms thereof, or will be funded in accordance with the terms thereof at the Closing upon delivery of a condition drawdown notice by Merger Sub or notice from Merger Sub that the Equity Financing will be funded at the Closing, (iii) the Company has confirmed to obtaining Parent in writing that (A) all conditions set forth in Section 7.1 and Section 7.3 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, but which are then capable of being satisfied at the Closing) or that it is willing to waive any such remedyopen conditions and (B) if specific performance is granted and if the Equity Financing and Debt Financing are funded, then the Closing will occur and (iv) Parent and Merger Sub have failed to consummate the Closing by the date on which the Closing is required to have occurred pursuant to Section 1.2. For the avoidance of doubt, in no event shall the Company be entitled to specific performance to cause all or any portion of the Equity Financing to be funded (whether under this Agreement or the Equity Commitment Letter) or cause Parent or Merger Sub to consummate the Merger or other Transactions (including the obligation to pay the Merger Consideration) if the Debt Financing has not been funded or will not be funded at the Closing even if the Equity Financing is funded at the Closing. Notwithstanding anything herein to the contrary, in no event will the Company seek the remedy of specific performance of this Agreement against any Lender Related Parties.
Appears in 1 contract
Samples: Merger Agreement (Central European Media Enterprises LTD)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will shall be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will shall not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur Each Party to this Agreement agrees that, in the event that of any breach or threatened breach by another Party of the provisions of any covenant, obligation or other provision set forth in this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to (i) the termination of this Agreement pursuant to Article VIII, each non-breaching Party shall be entitled entitled, without any proof of actual damages (and in addition to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, remedy that may be available to it) to (A) a decree or order of specific performance or mandamus to specifically enforce the terms observance and provisions performance of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certaintysuch covenant, that it may be difficult to procure suitable substitute performanceobligation or other provision, and that injunctive relief and/or specific performance will (B) an injunction restraining such breach or threatened breach, and (ii) such Party shall not cause an undue hardship be required to the Parties. Each of the Parties hereby further acknowledges that the existence of provide any bond or other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder security in connection with any such decree, order or injunction or in connection with any other injunctive reliefrelated action or Legal Proceeding.
(c) Notwithstanding anything to the contrary contained in this Agreement, the Letter Agreement or otherwise, it is explicitly agreed that the Company shall not be entitled to specific performance of, or other equitable remedies in connection with enforcing, Parent’s and Merger Sub’s obligations to cause the Equity Financing to be funded (or to cause directly such Equity Financing to be Funded under the Letter Agreement) and to cause the Offer Acceptance Time to occur and to effect the Closing (but not the right of the Company to seek such specific performance or other equitable remedies for any other reason) unless (i) all conditions in Annex I were satisfied (other than those conditions that by their terms are to be satisfied at the Offer Acceptance Time, but subject to those conditions being able to be satisfied) or waived on the Expiration Date), (ii) Parent fails to complete the Closing by the date the Closing is required to have occurred pursuant to Section 2.2, and (iii) the Company has irrevocably confirmed in writing that it is prepared to consummate the Closing and stands ready, willing and able to consummate the Closing.
(d) The Parties’ rights in this Section 9.14 9.13 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.13 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.14, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Merger or the other Transactions) is not performed in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to seek an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 9.9, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party entitled under the terms of this Agreement does not diminish the availability of specific performance of the obligations hereunder at law or any other injunctive reliefin equity.
(c) The Parties’ rights in this Section 9.14 9.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.149.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.. IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above. ZOOM VIDEO COMMUNICATIONS, INC. By: /s/ Xxxx X. Xxxx Name: Xxxx X. Xxxx Title: Founder & Chief Executive Officer SUMMER MERGER SUB, INC. By: /s/ Xxxxx Xxxxxxxxxxx Name: Xxxxx Xxxxxxxxxxx Title: Chief Executive Officer and President FIVE9, INC. By: /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Chief Executive Officer For the purposes of this Agreement, the term:
Appears in 1 contract
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Merger or the other Transactions) is not performed in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to seek an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 9.9, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party entitled under the terms of this Agreement does not diminish the availability of specific performance of the obligations hereunder at law or any other injunctive reliefin equity.
(c) The Parties’ rights in this Section 9.14 9.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.149.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
Appears in 1 contract
Samples: Merger Agreement
Enforcement; Remedies. (a) Except as otherwise expressly provided hereinin this Section 10.11, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will damage would occur in the event that any of the provisions of this Agreement is were not performed in accordance with its their specific terms or is were otherwise breached. It Except as set forth in this Section 10.11, including the limitations set forth in Section 10.11(c) and Section 10.11(d), it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each any Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce of the terms and provisions of this Agreement (including the Parties’ obligation to consummate the Merger, subject in each case to the terms and conditions of this Agreement), including to any further equitable relief. Each seek an injunction or injunctions to prevent breaches of this Agreement by the other Parties and, in the case of the Parties hereby acknowledges and agrees that it may be difficult Company, to prove damages with reasonable certaintyseek an injunction or injunctions, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not or other equitable relief to enforce Parent’s and/or Merger Sub’s obligations to consummate the Closing or to cause an undue hardship to the Parties. Each consummation of the Parties hereby further acknowledges that the existence of Financing, in addition to any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder law or any other injunctive reliefequity.
(c) The Parties’ rights in this Section 9.14 are right of specific performance is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, and, subject to Section 7.13, each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 10.11. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition injunction all in accordance with the terms of this Section 10.11.
(d) Notwithstanding anything herein to obtaining the contrary, the Parties further acknowledge and agree that the right of the Company, or any member of the Company Group, to obtain an injunction, specific performance or other equitable relief to enforce Parent’s or Merger Sub’s obligations to consummate the Closing or cause the Financing to be funded at the Effective Time, shall be subject to the requirements that (i) Parent and Merger Sub are required to consummate the Closing pursuant to Section 2.2, (ii) the Company has irrevocably confirmed in writing that if the Financing (or any Alternative Financing, if applicable) is funded, then it would take such remedyactions that are within its control to cause the consummation of the Transactions to occur, and (iii) the Financing has not been funded and Parent and Merger Sub have not consummated the Merger.
(e) If, prior to the Outside Date, any Party brings any Legal Proceeding to enforce specifically the performance of the terms and provisions hereof by any other Party, the Outside Date shall automatically be extended by (x) the amount of time during which such Legal Proceeding is pending, plus twenty (20) business days or (y) such other time period established by the court of competent jurisdiction presiding over such Legal Proceeding.
Appears in 1 contract
Samples: Merger Agreement (eLong, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Mergers or the other Transactions) is not performed in accordance with its specific terms or is otherwise breached. It Accordingly, it is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult , in each case in accordance with Section 9.9, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party entitled under the terms of this Agreement does not diminish the availability of specific performance of the obligations hereunder at law or any other injunctive reliefin equity.
(c) The Parties’ rights in this Section 9.14 9.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 9.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.149.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
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Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury will occur in the event that any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the termination of this Agreement pursuant to Article VIII, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order Parties’ right of specific performance to specifically enforce the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief.
(c) The Parties’ rights in this Section 9.14 are enforcement is an integral part of the Transactions and each Party hereby waives any objections to the grant of the equitable remedy of specific performance to prevent or restrain breaches of this Agreement by any remedy referred to in this Section 9.14 other Party (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy specific performance is not an appropriate remedy for any reason at Law or equity). For , and except as set forth in this Section 9.14, including the avoidance of doubtlimitations set forth in Section 9.14(c), each Party agrees that there is not shall be entitled to an adequate remedy at Law for a breach injunction or injunctions and to specifically enforce the terms and provisions of this Agreement by any Partyto prevent or restrain breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of such Party under this Agreement all in accordance with the terms of this Section 9.14. In the event any Party seeks any remedy referred an injunction or injunctions to in prevent breaches of this Section 9.14Agreement and to enforce specifically the terms and provisions of this Agreement, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with such order or as a condition injunction all in accordance with the terms of this Section 9.14.
(c) Notwithstanding the foregoing, it is explicitly agreed that the right of the Seller Parties to obtaining seek an injunction, specific performance or other equitable remedies solely in connection with causing the Buyer Parties to consummate the Transactions, including to effect the Closing in accordance with Section 2.1 and enforcing the Buyer Parties’ obligation to consummate any portion of the Financing shall be subject to the requirements that (i) all conditions in Sections 7.1 and 7.2 have been satisfied or waived by the Buyer Parties (other than those conditions that by their terms are to be satisfied by actions taken at the Closing) at the time when the Closing would have been required to occur pursuant to Section 2.1, including the proviso therein, and remain so satisfied, (ii) the Financing has been funded (in the case of the Bridge Financing, or any alternative financing that has been obtained in accordance with Section 5.9(b), in accordance with the terms thereof) or will be funded (in the case of the Bridge Financing, or any alternative financing that has been obtained in accordance with Section 5.9(b), in accordance with the terms thereof) at the Closing in an aggregate amount sufficient for the Buyer Parties to consummate the Transaction and make all Closing Date Payments, and (iii) the Seller Parties have irrevocably confirmed in writing that if specific performance is granted and the Financing is funded in an aggregate amount sufficient for the Buyer Parties to consummate the Transaction and make all Closing Date Payments, then they would take such remedyactions required of them by this Agreement to cause the Closing to occur.
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Samples: Asset Purchase Agreement (Hudson Pacific Properties, Inc.)
Enforcement; Remedies. (a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate the Transactions, including the Merger) is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination of this Agreement pursuant to Article VIIIIX, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific performance to specifically enforce enforcing the terms and provisions of this Agreement and to any further equitable relief. Each of the Parties hereby acknowledges and agrees that it may be difficult relief in each case in accordance with Section 10.9, this being in addition to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by to which such Party entitled under the terms of this Agreement does not diminish the availability of specific performance of the obligations hereunder at law or any other injunctive reliefin equity.
(c) The Parties’ rights in this Section 9.14 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.14 10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 9.1410.12, such Party shall not be required to obtain, furnish, post or provide any bond or other security in connection with or as a condition to obtaining any such remedy.
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