Common use of Exercise Closing Clause in Contracts

Exercise Closing. (a) Grantee and/or any other person that shall become a holder of all or part of the Option in accordance with the terms of this Agreement (each such person being referred to herein as the "Holder") may exercise the Option, in whole or part, if, but only if, both an Initial Triggering Event (as defined below) and a Subsequent Triggering Event (as defined below) shall have occurred prior to the occurrence of an Exercise Termination Event (as defined below), provided that the Holder shall have sent written notice of such exercise (as provided in subsection (f) of this Section 2) within 180 days following such Subsequent Triggering Event (or such later period as provided in Section 10). (b) Each of the following shall be an "Exercise Termination Event": (i) the Effective Time (as defined in the Merger Agreement); (ii) termination of the Merger Agreement by mutual agreement of the parties pursuant to Section 8.1 of the Merger Agreement, by either Issuer or Grantee pursuant to Section 8.2(c) of the Merger Agreement or by Issuer pursuant to Section 8.3(a) of the Merger Agreement; (iii) except as provided in clause (ii), termination of the Merger Agreement in accordance with the provisions thereof if such termination occurs prior to the occurrence of an Initial Triggering Event, except a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement as a result of a breach of a covenant by Issuer or a breach of a representation by Issuer; (iv) the passage of 12 months after termination of the Merger Agreement (or such later period as provided in Section 10) if such termination (A) follows or is concurrent with the occurrence of an Initial Triggering Event or (B) is a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement as a result of a breach of a covenant by Issuer; or (v) the receipt by Grantee (pursuant to its request) of the sum of $25 million in respect of the termination fee under the Merger Agreement.

Exercise Closing. (a) Grantee and/or any other person that shall become a holder of all or part of the Option in accordance with the terms of this Agreement The Holder (each such person being referred to herein as the "Holder"defined below) may exercise the Option, in whole or part, and from time to time, if, but only if, both an Initial Triggering Event (as defined below) and a Subsequent Triggering Event (as defined below) shall have occurred prior to the occurrence of an Exercise Termination Event (as defined below), provided that the Holder shall have sent written notice of such exercise (as provided in subsection (f) of this Section 2) within 180 days following such Subsequent Triggering Event (or such later period as provided in Section 10). (b) Each of the following shall be an "Exercise Termination Event": (i) the Effective Time (as defined in the Merger Agreement)) of the Merger; (ii) termination of the Merger Agreement by mutual agreement of the parties pursuant to Section 8.1 of the Merger Agreement, by either Issuer or Grantee pursuant to Section 8.2(c) of the Merger Agreement or by Issuer pursuant to Section 8.3(a) of the Merger Agreement; (iii) except as provided in clause (ii), termination of the Merger Agreement in accordance with the provisions thereof if such termination occurs prior to the occurrence of an Initial Triggering Event, except a termination by Grantee pursuant to Section 8.4(b9.1(d) of the Merger Agreement as a result of a breach of a covenant by Issuer or a willful breach of a representation by Issuer;; or (iviii) the passage of 12 18 months after termination of the Merger Agreement (or such later period as provided in Section 10) if such termination (A) follows or is concurrent with the occurrence of an Initial Triggering Event or (B) is a termination by Grantee pursuant to Section 8.4(b9.1(d) of the Merger Agreement as a result of a breach of a covenant by Issuer or a willful breach of a representation by Issuer; or (v) provided that if an Initial Triggering Event continues or occurs beyond such termination and prior to the receipt by Grantee (pursuant to its request) passage of such 18- month period, the Exercise Termination Event shall be 12 months from the expiration of the sum of $25 million Last Triggering Event (as defined below) but in respect of the termination fee under the Merger Agreementno event more than 18 months after such termination.

Exercise Closing. (a) Grantee and/or any other person that shall become a holder of all or part of the Option in accordance with the terms of this Agreement (each such person being referred to herein as the "Holder") may exercise the Option, in whole or part, if, but only if, both an Initial Triggering Event (as defined below) and a Subsequent Triggering Event (as defined below) shall have occurred prior to the occurrence of an Exercise Termination Event (as defined below), provided that the Holder shall have sent written notice of such exercise (as provided in subsection (f) of this Section 2) within 180 days following such Subsequent Triggering Event (or such later period as provided in Section 10). (b) Each of the following shall be an "Exercise Termination Event": (i) the Effective Time (as defined in the Merger Agreement); (ii) termination of the Merger Agreement by mutual agreement in accordance with the provisions of the parties pursuant to Section 8.1 8.01(a), 8.01(d)(i), 8.01(d)(ii) or 8.01(d)(iii) of the Merger Agreement, by either Issuer or Grantee pursuant to Section 8.2(c) termination of the Merger Agreement by the Issuer in accordance with the provisions of Section 8.01(b) thereof, or by Issuer pursuant to Section 8.3(a) termination of the Merger AgreementAgreement by the Grantee in accordance with the provisions of Section 8.01(b) thereof by reason solely of non-willful breaches of representations warranties or covenants by the Issuer, or termination of the Merger Agreement by the Grantee in accordance with the provisions of Section 8.01(c); (iii) except as provided in clause (ii), termination of the Merger Agreement by the Issuer in accordance with the provisions of Section 8.01(c), or termination of the Merger Agreement pursuant to Section 8.01(d)(iv) thereof, or termination of the Merger Agreement by the Grantee in accordance with the provisions of Section 8.01(b) thereof under circumstances where clause (ii) above is inapplicable, in each case only if such termination occurs prior to the occurrence of an Initial Triggering Event, except a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement as a result of a breach of a covenant by Issuer or a breach of a representation by Issuer; (iv) the passage of 12 months after termination of the Merger Agreement (or such later period as provided in Section 10) if such after termination (A) follows or is concurrent with the occurrence of an Initial Triggering Event or (B) is a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement other than as a result of a breach of a covenant by Issuerset forth in clauses (ii) and (iii) above; or (v) the receipt by Grantee (pursuant to its request) of the sum of $25 million in respect of the termination fee under the Merger AgreementTermination Fee.

Exercise Closing. (a) Grantee and/or any other person that shall become a holder of all or part of the Option in accordance with the terms of this Agreement (each such person being referred to herein as the "Holder") may exercise the Option, in whole or part, if, but only if, both an Initial Triggering Event (as defined below) and a Subsequent Triggering Event (as defined below) shall have occurred prior to the occurrence of an Exercise Termination Event (as defined below), provided that the Holder shall have sent written notice of such exercise (as provided in subsection (f) of this Section 2) within 180 days following such Subsequent Triggering Event (or such later period as provided in Section 10). (b) Each of the following shall be an "Exercise Termination Event": (i) the Effective Time (as defined in the Merger Agreement); (ii) termination of the Merger Agreement by mutual agreement of the parties pursuant to Section 8.1 of the Merger Agreement, by either Issuer or Grantee pursuant to Section 8.2(c) of the Merger Agreement or by Issuer pursuant to Section 8.3(a) of the Merger Agreement; (iii) except as provided in clause (ii), termination of the Merger Agreement in accordance with the provisions thereof if such termination occurs prior to the occurrence of an Initial Triggering Event, except a termination by Grantee pursuant to Section 8.4(b8.01(b) of the Merger Agreement as a result of a breach of a covenant by Issuer or a breach of a representation by Issuer; (iviii) the passage of 12 months after termination of the Merger Agreement (or such later period as provided in Section 10) if such termination (A) follows or is concurrent with the occurrence of an Initial Triggering Event or (B) is a termination by Grantee pursuant to Section 8.4(b8.01(b) of the Merger Agreement as a result of a breach of a covenant by Issuer or a breach of a representation by Issuer; or (viv) the receipt by Grantee (pursuant to its request) of the sum of $25 15 million in respect of the termination fee under Termination Fee. (c) The term "Initial Triggering Event" shall mean any of the Merger Agreement.following events or transactions occurring after the date hereof:

Exercise Closing. (a) Grantee and/or any other person that shall become a holder of all or part of the Option in accordance with the terms of this Agreement (each such person being referred to herein as the "Holder") may exercise the Option, in whole or part, if, but only if, both an Initial the Termination Fee provided for in Section 8.02(b) of the Merger Agreement has become payable (a "Triggering Event (as defined belowEvent") and a Subsequent Triggering Event (as defined below) shall have occurred such exercise is prior to the occurrence of an Exercise Termination Event (as defined belowhereinafter defined). Notwithstanding anything to the contrary contained herein, provided that this Agreement shall automatically terminate upon the Holder shall have sent written notice termination of such exercise (as provided in subsection (fthe Merger Agreement by Issuer pursuant to Section 8.01(b) of this Section 2) within 180 days following such Subsequent Triggering Event (or such later period as provided in Section 10)thereof. (b) Each of the following shall be an "Exercise Termination Event": (i) the Effective Time (as defined in the Merger Agreement);; or (ii) termination of the Merger Agreement by mutual agreement of the parties pursuant to Section 8.1 of the Merger Agreement, by either Issuer or Grantee pursuant to Section 8.2(c) of the Merger Agreement or by Issuer pursuant to Section 8.3(a) of the Merger Agreement; (iii) except as provided in clause (ii), termination of the Merger Agreement in accordance with the provisions thereof if such termination occurs prior to the occurrence of an Initial a Triggering Event, except Event and at the time of such termination the conditions prerequisite to a termination by Grantee pursuant to Section 8.4(b) Triggering Event occurring in the future are incapable of the Merger Agreement as a result of a breach of a covenant by Issuer or a breach of a representation by Issuer;being fulfilled; or (iviii) the passage of 12 thirteen (13) months after termination of the Merger Agreement (or such later longer period as provided in Section 10) if such after termination (A) follows or is concurrent with the occurrence of an Initial Triggering Event or (B) is a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement as a result of a breach of a covenant by IssuerAgreement; or (viv) the receipt by Grantee of the Termination Fee. (c) Issuer shall notify Grantee promptly in writing of the occurrence of any Triggering Event (other than a Triggering Event by reason of a termination of the Merger Agreement pursuant to its requestSection 8.01(e)), it being understood that the giving of such notice by Issuer shall not be a condition to the right of the Holder to exercise the Option. (d) In the event the Holder is entitled to and wishes to exercise the Option (or any portion thereof), it shall send to Issuer a written notice (the date of which being herein referred to as the "Notice Date") specifying (i) the total number of shares it will purchase pursuant to such exercise and (ii) a place and date not earlier than three business days nor later than 60 business days from the Notice Date for the closing of such purchase (the "Closing Date"); provided, that if the closing of such purchase cannot be consummated by reason of any applicable judgment, injunction, decree, order, law or regulation, the period of time that would otherwise run pursuant to this sentence shall run instead from the date on which such restriction on consummation has expired or been terminated; and provided, further, that if prior notification to or approval of any regulatory or antitrust agency is required in connection with such purchase, the Holder shall promptly file the required notice or application for approval, shall promptly notify Issuer of such filing, and shall expeditiously process the same and the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which any required notification periods have expired or been terminated or such approvals have been obtained and any requisite waiting period or periods shall have passed. Any exercise of the Option shall be deemed to occur on the Notice Date relating thereto. (e) At the closing referred to in subsection (d) of this Section 2, the sum Holder shall (i) pay to Issuer the aggregate purchase price for the shares of $25 million in respect Common Stock purchased pursuant to the exercise of the termination fee Option in immediately available funds by wire transfer to a bank account designated by Issuer, provided that failure or refusal of Issuer to designate such a bank account shall not preclude the Holder from exercising the Option by delivery of a certified check or bank draft and (ii) present and surrender this Agreement to Issuer. (f) At such closing, simultaneously with the delivery of immediately available funds as provided in subsection (e) of this Section 2, Issuer shall deliver to the Holder a certificate or certificates representing the number of shares of Common Stock purchased by the Holder and, if the Option should be exercised in part only, a new Option evidencing the rights of the Holder thereof to purchase the balance of the shares purchasable hereunder. (g) Certificates for Common Stock delivered at a closing hereunder may be endorsed with a restrictive legend that shall read substantially as follows: "The transfer of the shares represented by this certificate is subject to certain provisions of an agreement between the registered holder hereof and Issuer and to resale restrictions arising under applicable securities laws (including the Merger AgreementSecurities Act of 1933, as amended). A copy of such agreement is on file at the principal office of Issuer and will be provided to the holder hereof without charge upon receipt by Issuer of a written request therefor." It is understood and agreed that: (i) the reference to the resale restrictions arising under applicable securities laws, including the Securities Act of 1933, as amended (the "Securities Act"), in the above legend shall be removed by delivery of substitute certificate(s) without such reference if the Holder shall have delivered to Issuer a copy of a letter from the staff of the Securities and Exchange Commission, or an opinion of counsel, in form and substance reasonably satisfactory to Issuer, to the effect that such legend is not required for purposes of the Securities Act or other applicable securities laws; (ii) the reference to the provisions of this Agreement in the above legend shall be removed by delivery of substitute certificate(s) without such reference if the shares have been sold or transferred in compliance with the provisions of this Agreement and under circumstances that do not require the retention of such reference in the opinion of counsel to the Holder, in form and substance reasonably satisfactory to Issuer; and (iii) the legend shall be removed in its entirety if the conditions in the preceding clauses (i) and (ii) are both satisfied. In addition, such certificates shall bear any other legend as may be required by law. The Holder understands and agrees that the Option is being issued to the Holder pursuant to the registration and prospectus exceptions in paragraph 35(1) and clause 72(1)(b0 of the Securities Act (Ontario) (the "Ontario Act") and that the resale of the Option or Common Stock issued upon exercise of the Option is restricted by the provisions of the Ontario Act and other applicable Canadian securities legislation. (h) Upon the giving by the Holder to Issuer of the written notice of exercise of the Option provided for under subsection (f) of this Section 2 and the tender of the applicable purchase price in immediately available funds, the Holder shall be deemed to be the holder of record of the shares of Common Stock issuable upon such exercise, notwithstanding that the stock transfer books of Issuer shall then be closed or that certificates representing such shares of Common Stock shall not then be actually delivered to the Holder. Issuer shall pay all expenses, and any and all United States federal, state and local taxes and other charges that may be payable in connection with the preparation, issue and delivery of stock certificates under this Section 2 in the name of the Holder or its assignee, transferee or designee.

Exercise Closing. (a) Grantee and/or any other person that shall become a holder of all or part of the Option in accordance with the terms of this Agreement (each such person being referred to herein as the "Holder") may exercise the Option, in whole or part, if, but only if, both an Initial the Termination Fee has become payable (a "Triggering Event (as defined belowEvent") and a Subsequent Triggering Event (as defined below) shall have occurred such exercise is prior to the occurrence of an Exercise Termination Event (as defined below), provided that the Holder shall have sent written notice of such exercise (as provided in subsection (f) of this Section 2) within 180 days following such Subsequent Triggering Event (or such later period as provided in Section 10hereinafter defined). (b) Each of the following shall be an "Exercise Termination Event": (i) the Effective Time (as defined in the Merger Agreement); (ii) termination of the Merger Agreement by mutual agreement of the parties pursuant to Section 8.1 of the Merger Agreement, by either Issuer or Grantee pursuant to Section 8.2(c) of the Merger Agreement or by Issuer pursuant to Section 8.3(a) of the Merger Agreement; (iii) except as provided in clause (ii), termination of the Merger Agreement in accordance with the provisions thereof if such termination occurs prior to the occurrence of an Initial Triggering Event, except a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement as a result of a breach of a covenant by Issuer or a breach of a representation by Issuer; (iv) the passage of 12 thirteen (13) months after termination of the Merger Agreement (or such later longer period as provided in Section 10) if such after termination (A) follows or is concurrent with the occurrence of an Initial Triggering Event or (B) is a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement as a result of a breach of a covenant by IssuerOffer Agreement; or (vii) the receipt completion of the acquisition of all of the issued and outstanding Common Shares of Issuer by Grantee or a direct or indirect wholly-owned subsidiary of Grantee; or (iii) the payment of any combination of the Option Repurchase Price or the Option Share Repurchase Price (as defined in Section 7(a) hereof) or the Substitute Option Repurchase Price or the Substitute Share Repurchase Price (as defined in Section 9(a) hereof) aggregating U.S. $4,700,000. (c) In the event Holder is entitled to and wishes to exercise the Option (or any portion thereof), it shall send to Issuer a written notice (the date of which being herein referred to as the "Notice Date") specifying (i) the total number of shares it will purchase pursuant to such exercise and (ii) a place and date not earlier than three business days nor later than 60 business days from the Notice Date for the closing of such purchase (the "Closing Date"); provided, that if the closing of such purchase cannot be consummated by reason of any applicable judgment, injunction, decree, order, law or regulation, the period of time that would otherwise run pursuant to this sentence shall run instead from the date on which such restriction on consummation has expired or been terminated; and provided, further, that if prior notification to or approval of any regulatory or antitrust agency is required in connection with such purchase, Holder shall promptly file the required notice or application for approval, shall promptly notify Issuer of such filing, and shall expeditiously process the same and the period of time that otherwise would run pursuant to this sentence shall run instead from the date on which any required notification periods have expired or been terminated or such approvals have been obtained and any requisite waiting period or periods shall have passed. Issuer agrees to use its requestbest efforts to obtain any and all regulatory or other approvals necessary in connection with the granting or exercise of the Option. Any exercise of the Option, in whole or in part, shall be deemed to occur on the Notice Date relating to that portion of the exercise of the Option. (d) At the closing referred to in subsection (c) of this Section 2, Holder shall (i) pay to Issuer the sum aggregate purchase price for the Common Shares purchased pursuant to an exercise of $25 million the Option in immediately available funds by wire transfer to a bank account designated by Issuer, provided that failure or refusal of Issuer to designate such a bank account shall not preclude Holder from exercising the Option by delivery of a certified check or bank draft and (ii) present and surrender this Agreement to Issuer, against delivery, in the case of any exercise of the Option in part only, of the new Agreement referred to in subsection (e) of this Section 2. (e) At such closing, simultaneously with the delivery of immediately available funds as provided in subsection (d) of this Section 2, Issuer shall deliver to Holder a certificate or certificates representing the number of Common Shares purchased by Holder and, if the Option should be exercised in part only, a new Agreement evidencing the rights of the Holder thereof to purchase the balance of the shares purchasable hereunder, which new Agreement shall be on the same terms and conditions as are set forth herein except with respect to the number of Common Shares issuable pursuant thereto, which shall be reduced accordingly in respect of any prior exercises of the termination fee Option. (f) Certificates for Common Shares delivered at a closing hereunder may be endorsed with a restrictive legend that shall read substantially as follows: "The transfer of the shares represented by this certificate is subject to certain resale restrictions arising under applicable securities laws (including the Merger AgreementUnited States Securities Act of 1933, as amended)." It is understood and agreed that the above legend shall be removed by delivery of substitute certificate(s) without such reference if Holder shall have delivered to Issuer a copy of a letter from the United States Securities and Exchange Commission or a written opinion of counsel of nationally recognized standing addressed to Issuer, in form and substance reasonably satisfactory to Issuer, to the effect that such legend is not required for purposes of the Unites States Securities Act of 1933, as amended (the "1933 Act") or other applicable securities laws. In addition, such certificates shall bear any other legend as may be required by law. (g) Upon the giving by Holder to Issuer of the written notice of exercise of the Option provided for under subsection (c) of this Section 2 and the tender of the applicable purchase price in immediately available funds, Holder shall be deemed to be the holder of record of the Common Shares issuable upon such exercise, notwithstanding that the share transfer books of Issuer shall then be closed or that certificates representing such Common Shares shall not then be actually delivered to Holder. Issuer shall pay all expenses, and any and all United States federal, state and local taxes and other charges that may be payable in connection with the preparation, issue and delivery of share certificates under this Section 2 in the name of Holder or its assignee, transferee or designee.

Exercise Closing. (a) Grantee and/or any other person that shall become a holder of all or part of the Option in accordance with the terms of this Agreement The Holder (each such person being referred to herein as the "Holder"defined below) may exercise ----------------- the Option, in whole or part, and from time to time, if, but only if, both an Initial Triggering Event (as defined below) and a Subsequent Triggering Event (as defined below) shall have occurred prior to the occurrence of an Exercise Termination Event (as defined below), provided that the Holder shall have sent -------- written notice of such exercise (as provided in subsection (f) of this Section 2) within 180 days following such Subsequent Triggering Event (or such later period as provided in Section 10). (b) Each of the following shall be an "Exercise Termination Event":: -------------------------- (i) the Effective Time (as defined in the Merger Affiliation Agreement)) of the Merger; (ii) termination of the Merger Agreement by mutual agreement of the parties pursuant to Section 8.1 of the Merger Agreement, by either Issuer or Grantee pursuant to Section 8.2(c) of the Merger Agreement or by Issuer pursuant to Section 8.3(a) of the Merger Agreement; (iii) except as provided in clause (ii), termination of the Merger Affiliation Agreement in accordance with the provisions thereof if such termination occurs prior to the occurrence of an Initial Triggering Event, except a termination by Grantee pursuant to Section 8.4(b) VIII.A.1. of the Merger Affiliation Agreement as a result of a (provided that the breach of a covenant by Issuer or giving rise to the termination by Grantee under Section VIII.A.1. of the Affiliation Agreement was willful (a breach of a representation by Issuer;"Listed Termination")); or (iviii) the passage of 12 18 months after termination of the Merger Affiliation Agreement (or such later period as provided in Section 10) if such termination (A) follows or is concurrent with the occurrence of an Initial Triggering Event or (B) is a termination by Grantee pursuant to Section 8.4(b) of the Merger Agreement as a result of a breach of a covenant by Issuer; or (v) the receipt by Grantee (pursuant to its request) of the sum of $25 million in respect of the termination fee under the Merger AgreementListed Termination.