Common use of of the Merger Agreement Clause in Contracts

of the Merger Agreement. The first sentence of Section 1.3 of the Merger Agreement shall be deleted and replaced in its entirety with the following: “The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Cooley Godward Kronish LLP, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m. (California time) on a date to be designated by Parent after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 6 and 7 (other than the conditions set forth in Sections 6.6(b) and 7.5, which by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of each of such conditions) (the date so designated by Parent, the “Designated Date”), or on such other date or at such other time or location as Parent and the Company may mutually designate in writing. The date designated by Parent as the Designated Date shall not be later than the earlier of (a) December 30, 2008, and (b) the later of December 22, 2008 and the date that is 10 business days after the satisfaction or waiver of the last to be satisfied or waived of such conditions. (In deciding whether to designate a date earlier than December 22, 2008 as the Designated Date, Parent may take into account, among other things, the respective cash balances of Parent and the Company and the length of time needed to prepare for the closing of the financing required to consummate the Merger.) Notwithstanding anything to the contrary contained in this Agreement, if there exists an uncured Financing Failure on the Designated Date and such Financing Failure impedes the ability of Parent or Merger Sub to obtain the Debt Financing and consummate the Merger on the Designated Date, then (without limiting any right the Company may have to terminate this Agreement pursuant to Section 8.1(h) or, if applicable under the circumstances, Section 8.1(b)): (i) the Closing shall be postponed until the second business day after the date on which such Financing Failure is cured; (ii) the obligations of Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement shall remain subject to the continued satisfaction or waiver, as of the time of the Closing, of each of the conditions set forth in Section 6; and (iii) the obligation of the Company to consummate the Merger and the other transactions contemplated by this Agreement shall remain subject to the continued satisfaction or waiver, as of the time of the Closing, of each of the conditions set forth in Section 7.”

of the Merger Agreement. The first sentence In the event Omega wishes to exercise the Company Option, Omega shall deliver to Company a written notice (an "Exercise Notice") specifying the total number of Section 1.3 Company Shares it wishes to purchase; PROVIDED that, if prior notification to or approval of the Merger Agreement Department of Justice, the Federal Trade Commission and/or any other regulatory or antitrust agency is required in connection with such purchase, Omega shall be deleted promptly file the required notice or application for approval, shall promptly notify Company of such filing, and replaced in its entirety with shall expeditiously process the following: “The consummation same and the period of time that otherwise would run pursuant to this sentence shall run instead from the transactions contemplated by this Agreement 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. Each closing of a purchase of Company Shares (the “an "Option Closing”") shall take place occur at the offices of Cooley Godward Kronish LLPa place, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m. (California time) on a date to be and at a time designated by Parent after Omega in an Exercise Notice delivered at least two business days prior to the satisfaction or waiver date of the last to be satisfied or waived of the conditions set forth in Sections 6 and 7 Option Closing. The Company Option shall terminate upon (other than the conditions set forth in Sections 6.6(b) and 7.5, which by their nature are to be satisfied at the Closing, but subject unless exercised pursuant to the satisfaction or waiver of each of such conditionsterms hereof prior to) (the date so designated by Parent, the “Designated Date”), or on such other date or at such other time or location as Parent and the Company may mutually designate in writing. The date designated by Parent as the Designated Date shall not be later than the earlier of (a) December 30, 2008, and (b) the later of December 22, 2008 and the date that is 10 business days after the satisfaction or waiver of the last to be satisfied or waived of such conditions. (In deciding whether to designate a date earlier than December 22, 2008 as the Designated Date, Parent may take into account, among other things, the respective cash balances of Parent and the Company and the length of time needed to prepare for the closing of the financing required to consummate the Merger.) Notwithstanding anything to the contrary contained in this Agreement, if there exists an uncured Financing Failure on the Designated Date and such Financing Failure impedes the ability of Parent or Merger Sub to obtain the Debt Financing and consummate the Merger on the Designated Date, then (without limiting any right the Company may have to terminate this Agreement pursuant to Section 8.1(h) or, if applicable under the circumstances, Section 8.1(b)): of: (i) the Closing shall be postponed until the second business day after the date on which such Financing Failure is curedEffective Time; (ii) the obligations termination of Parent and Merger Sub to consummate the Merger and Agreement pursuant to Section 8.1 thereof (other than a termination pursuant to Section 8.1(e) or Section 8.1(g) thereof or resulting from fraud or the other transactions contemplated by this Agreement shall remain subject wilful breach or failure to the continued satisfaction perform of Company of any of its representations, warranties or waiver, as of the time of the Closing, of each of the conditions covenants set forth in Section 6the Merger Agreement or this Agreement (a "Wilful Breach")); and (iii) the obligation one-hundred eighty (180) days following any termination of the Merger Agreement pursuant to Section 8.1(e) or Section 8.1(g) thereof or resulting from a Wilful Breach (or if, at the expiration of such one-hundred eighty (180) day period, the Company Option cannot be exercised by reason of any applicable judgment, decree, order, law or regulation, 10 business days after such impediment to consummate the Merger exercise shall have been removed or shall have become final and the other transactions contemplated by this Agreement shall remain not subject to the continued satisfaction or waiver, as of the time of the Closing, of each of the conditions set forth in Section 7appeal).”

of the Merger Agreement. The first sentence of Section 1.3 of the Merger Agreement shall be deleted and replaced in its entirety with the following: “The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Cooley Xxxxxx Godward Kronish LLP, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m. (California time) on a date to be designated by Parent after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 6 and 7 (other than the conditions set forth in Sections 6.6(b) and 7.5, which by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of each of such conditions) (the date so designated by Parent, the “Designated Date”), or on such other date or at such other time or location as Parent and the Company may mutually designate in writing. The date designated by Parent as the Designated Date shall not be later than the earlier of (a) December 30, 2008, and (b) the later of December 22, 2008 and the date that is 10 business days after the satisfaction or waiver of the last to be satisfied or waived of such conditions. (In deciding whether to designate a date earlier than December 22, 2008 as the Designated Date, Parent may take into account, among other things, the respective cash balances of Parent and the Company and the length of time needed to prepare for the closing of the financing required to consummate the Merger.) Notwithstanding anything to the contrary contained in this Agreement, if there exists an uncured Financing Failure on the Designated Date and such Financing Failure impedes the ability of Parent or Merger Sub to obtain the Debt Financing and consummate the Merger on the Designated Date, then (without limiting any right the Company may have to terminate this Agreement pursuant to Section 8.1(h) or, if applicable under the circumstances, Section 8.1(b)): (i) the Closing shall be postponed until the second business day after the date on which such Financing Failure is cured; (ii) the obligations of Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement shall remain subject to the continued satisfaction or waiver, as of the time of the Closing, of each of the conditions set forth in Section 6; and (iii) the obligation of the Company to consummate the Merger and the other transactions contemplated by this Agreement shall remain subject to the continued satisfaction or waiver, as of the time of the Closing, of each of the conditions set forth in Section 7.”

of the Merger Agreement. The first sentence of Section 1.3 2.12(a) of the Merger Agreement shall be deleted is hereby amended and replaced restated in its entirety with the followingas follows: “The consummation As additional consideration for the Management Company Units held by a Company Group Holder as of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Cooley Godward Kronish LLP, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m. (California time) on a date immediately prior to be designated by Parent after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 6 and 7 (other than the conditions set forth in Sections 6.6(b) and 7.5, which by their nature are to be satisfied at the Closing, but subject the holder thereof shall be entitled to the satisfaction or waiver of each of such conditions) (the date so designated by Parent, the “Designated Date”), or on such other date or at such other time or location as Parent and the Company may mutually designate in writing. The date designated by Parent as the Designated Date shall not be later than the earlier of (a) December 30, 2008, and (b) the later of December 22, 2008 and the date that is 10 business days after the satisfaction or waiver of the last to be satisfied or waived of such conditions. (In deciding whether to designate a date earlier than December 22, 2008 as the Designated Date, Parent may take into account, among other things, the respective cash balances of Parent and the Company and the length of time needed to prepare for the closing of the financing required to consummate the Merger.) Notwithstanding anything to the contrary contained in this Agreement, if there exists an uncured Financing Failure on the Designated Date and such Financing Failure impedes the ability of Parent or Merger Sub to obtain the Debt Financing and consummate the Merger on the Designated Date, then (without limiting any right the Company may have to terminate this Agreement pursuant to Section 8.1(h) or, if applicable under the circumstances, Section 8.1(b)): (i) its allocable portion of the Closing shall be postponed until the second business day after the date on which such Financing Failure is cured; (ii) the obligations of Parent and Merger Sub to consummate the Merger and the other transactions contemplated by this Agreement shall remain subject to the continued satisfaction or waiverFirst Earnout, as of the time of the Closing, of each of the conditions set forth in Section 6; and (iii2.2(a) the obligation of the Company to consummate Disclosure Letter, upon the Merger occurrence of a Triggering Event applicable thereto, and (ii) its allocable portion of the other transactions contemplated by this Agreement shall remain subject to the continued satisfaction or waiverSecond Earnout, as of the time of the Closing, of each of the conditions set forth in Section 72.2(a) of the Company Disclosure Letter, upon the occurrence of a Triggering Event applicable thereto, with such ratable portion in each case being determined based on the number of Management Company Units held by such holder as of immediately prior to the Closing relative to the total number of Management Company Units outstanding as of immediately prior to the Closing; provided that, notwithstanding the foregoing, with respect to any Management Company Units that constitute Electing Company Group Units of any holder thereof, a holder that has executed and delivered to Parent each of the following shall be entitled to be issued such holder’s Earnout Units on the Closing Date: (A) each of the Blue Owl LP Agreements, (B) the Exchange Agreement and (C) an Earnout Restrictions Agreement pursuant to which such holder has agreed to (x) the restrictions on transfer on such Earnout Units more fully described in Section 2.12(b)(iv), and (y) forfeiture of such Earnout Units to the extent such Earnout Units are not earned in accordance with Section 2.12(c) on or prior to the Applicable Earnout Termination Date.”