Common use of Pre-Closing Decisions Clause in Contracts

Pre-Closing Decisions. 1.1.1. All decisions to be made with respect to the following issues shall require the unanimous consent of the Parties in each Party’s sole discretion: (i) amending, modifying or terminating the Merger Agreement, (ii) except as provided in Section 1.1.2 below, waiving any of the conditions set forth in Article VII of the Merger Agreement, (iii) enforcing any rights of Parent or Merger Sub under the terms of the Merger Agreement, (iv) the negotiation or entry by Parent or Merger Sub into any contract, agreement, arrangement or understanding (whether written or oral) not specifically contemplated by the Merger Agreement or the Carveout Transaction Agreements (for avoidance of doubt, the entry into, amendment of or modification to the ABL Commitment Letter (as defined below) shall require only the consent of the Sponsors (and not Wolverine)), (v) unless otherwise provided for in Section 1.1.2, the determination as to whether there has occurred a breach by the Company of any of its representations and warranties or covenants contained in the Merger Agreement, and (vi) the taking of any action by Parent or Merger Sub, other than to prepare for and consummate the Merger (and the other transactions contemplated by the Merger Agreement) and the Carveout Transaction (and the other transactions contemplated by the Carveout Transaction Agreements); provided that after the expiration of sixty (60) calendar days following the Termination Date, any Party may, in its sole discretion, cause Parent to terminate the Merger Agreement. 1.1.2. The determination as to whether there has occurred a Company Material Adverse Effect (i) pursuant to clause (1) of the definition thereof shall be made by solely by Wolverine in its sole discretion (and not by Xxxx or Golden Gate) and (ii) pursuant to clause (2) of the definition thereof shall be made by the Sponsors in their sole discretion (and not by Wolverine). Furthermore, notwithstanding anything contained in Section 1.1.1 to the contrary, the decision to waive the condition set forth in Section 7.2(c) of the Merger Agreement may be made solely by (Y) Wolverine (and shall not require the consent of the Sponsors) with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof (but, for the avoidance of doubt, no such waiver by Wolverine shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to clause (2) of the definition thereof) and (Z) the Sponsors (and shall not require the consent of Wolverine) with respect to a Company Material Adverse Effect pursuant to clause (2) of the definition thereof (but, for the avoidance of doubt, no such waiver by the Sponsors shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof). 1.1.3. Notwithstanding anything to the contrary contained in Sections 1.1.1 or 1.1.2, (i) any act (or failure to act) on the part of Parent or Merger Sub that affects solely the PLG Business or that does not adversely affect in any respect the PSS Business, the Sponsors or the Surviving Corporation may be taken upon the approval of Wolverine and shall not require the approval of Xxxx and Golden Gate, (ii) any act (or failure to act) on the part of Parent or Merger Sub that affects solely the PSS Business or that does not adversely affect in any respect the PLG Business or Wolverine may be taken upon the approval of the Sponsors and shall not require the approval of Wolverine and (iii) any act (or failure to act) on the part of Parent (including causing Merger Sub to act (or to fail to act)) under or relating to the Carveout Transaction Agreements shall be taken upon the approval of the Sponsors and shall not require the approval of Wolverine. 1.1.4. Each Party will comply with its obligations (if any) under the Merger Agreement, the Carveout Transaction Agreements, the Equity Financing Commitments and the Guarantees and will also use all commercially reasonable efforts to cause Parent and Merger Sub to comply with their obligations under the Merger Agreement and the Carveout Transaction Agreements; provided, that the sole and exclusive remedy of the Parties for any breach or violation of this Section 1.1.4 shall be to seek specific performance of the aforementioned obligations.

Pre-Closing Decisions. 1.1.1. All decisions to be made with respect to the following issues shall require the unanimous consent of the Parties in each Party’s sole discretion: (i) amending, modifying or terminating the Merger Agreement, (ii) except as provided in Section 1.1.2 below, waiving any of the conditions set forth in Article VII of the Merger Agreement, (iii) enforcing any rights of Parent or Merger Sub under the terms of the Merger Agreement, (iv) the negotiation or entry by Parent or Merger Sub into any contract, agreement, arrangement or understanding (whether written or oral) not specifically contemplated by the Merger Agreement or the Carveout Transaction Agreements (for avoidance of doubt, the entry into, amendment of or modification to the ABL Commitment Letter (as defined below) shall require only the consent of the Sponsors (and not Wolverine)), (v) unless otherwise provided for in Section 1.1.2, the determination as to whether there has occurred a breach by the Company of any of its representations and warranties or covenants contained in the Merger Agreement, and (vi) the taking of any action by Parent or Merger Sub, other than to prepare for and consummate the Merger (and the other transactions contemplated by the Merger Agreement) and the Carveout Transaction (and the other transactions contemplated by the Carveout Transaction Agreements); provided that after the expiration of sixty (60) calendar days following the Termination Date, any Party may, in its sole discretion, cause Parent to terminate the Merger Agreement. 1.1.2. The determination as to whether there has occurred a Company Material Adverse Effect (i) pursuant to clause (1) of the definition thereof shall be made by solely by Wolverine in its sole discretion (and not by Xxxx Blum or Golden Gate) and (ii) pursuant to clause (2) of the definition thereof shall be made by the Sponsors in their sole discretion (and not by Wolverine). Furthermore, notwithstanding anything contained in Section 1.1.1 to the contrary, the decision to waive the condition set forth in Section 7.2(c) of the Merger Agreement may be made solely by (Y) Wolverine (and shall not require the consent of the Sponsors) with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof (but, for the avoidance of doubt, no such waiver by Wolverine shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to clause (2) of the definition thereof) and (Z) the Sponsors (and shall not require the consent of Wolverine) with respect to a Company Material Adverse Effect pursuant to clause (2) of the definition thereof (but, for the avoidance of doubt, no such waiver by the Sponsors shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof). 1.1.3. Notwithstanding anything to the contrary contained in Sections 1.1.1 or 1.1.2, (i) any act (or failure to act) on the part of Parent or Merger Sub that affects solely the PLG Business or that does not adversely affect in any respect the PSS Business, the Sponsors or the Surviving Corporation may be taken upon the approval of Wolverine and shall not require the approval of Xxxx Blum and Golden Gate, (ii) any act (or failure to act) on the part of Parent or Merger Sub that affects solely the PSS Business or that does not adversely affect in any respect the PLG Business or Wolverine may be taken upon the approval of the Sponsors and shall not require the approval of Wolverine and (iii) any act (or failure to act) on the part of Parent (including causing Merger Sub to act (or to fail to act)) under or relating to the Carveout Transaction Agreements shall be taken upon the approval of the Sponsors and shall not require the approval of Wolverine. 1.1.4. Each Party will comply with its obligations (if any) under the Merger Agreement, the Carveout Transaction Agreements, the Equity Financing Commitments and the Guarantees and will also use all commercially reasonable efforts to cause Parent and Merger Sub to comply with their obligations under the Merger Agreement and the Carveout Transaction Agreements; provided, that the sole and exclusive remedy of the Parties for any breach or violation of this Section 1.1.4 shall be to seek specific performance of the aforementioned obligations.

Pre-Closing Decisions. 1.1.1. All decisions to be made with respect to the following issues shall require the unanimous consent of the Parties in each Party’s sole discretion: (i) amending, modifying or terminating the Merger Agreement, (ii) except as provided in Section 1.1.2 below, waiving any of the conditions set forth in Article VII of the Merger Agreement, (iii) enforcing any rights of Parent or Merger Sub Any decision under the terms of the Merger Agreement, (iv) the negotiation or entry by Parent or Merger Sub into any contract, agreement, arrangement or understanding (whether written or oral) not specifically contemplated by the Merger Interim Agreement or the Carveout Transaction Agreements (for avoidance of doubt, the entry into, amendment of or modification to the ABL Commitment Letter (as defined below) shall require only that requires the consent of each of Xxxx and Golden Gate in its sole discretion (i.e., the Sponsors (and not Wolverine)), (v) unless otherwise provided for decisions referred to in Section 1.1.2, 1.1.1 of the determination as to whether there has occurred a breach by the Company of any of its representations and warranties or covenants contained in the Merger Agreement, and (vi) the taking of any action by Parent or Merger Sub, other than to prepare for and consummate the Merger (and the other transactions contemplated by the Merger Interim Agreement) and will require the Carveout Transaction (and the other transactions contemplated by the Carveout Transaction Agreements); provided that after the expiration consent of sixty (60) calendar days following the Termination Date, any Party mayeach Sponsor, in its sole discretion. For avoidance of doubt, cause Parent any decision to terminate increase the merger consideration payable per share under the Merger AgreementAgreement will require the consent of each Sponsor, in its sole discretion. 1.1.2. The determination as to whether there has occurred a Company Material Adverse Effect (i) pursuant to clause (1) of the definition thereof shall be made by solely by Wolverine in its sole discretion (and not by Xxxx or Golden Gate) and (ii) pursuant to under clause (2) of the definition thereof shall may be made by the Sponsors either Sponsor in their its sole discretion discretion; provided that if one (and only one) Sponsor determines that such a Company Material Adverse Effect has occurred and solely as a consequence thereof the Closing is not consummated but a court of competent jurisdiction finally determines that such a Company Material Adverse Effect had not occurred and Parent and Merger Sub are required to pay the Parent Termination Fee and other amounts pursuant to Section 8.5(e) of the Merger Agreement, then the Sponsor that made such determination shall be responsible for 100% of such amounts required to be paid by WolverineParent and Merger Sub (it being agreed that if both Sponsors make such determination and solely as a consequence thereof the Closing is not consummated but a court of competent jurisdiction finally determines that such a Company Material Adverse Effect had not occurred and Parent and Merger Sub are required to pay the Parent Termination Fee and other amounts pursuant to Section 8.5(e) of the Merger Agreement, then each Sponsor shall be responsible for 50% of such amounts required to be paid by Parent and Merger Sub). 1.1.3. Furthermore, notwithstanding anything contained in Section 1.1.1 to the contrary, the decision Any determination to waive the non-satisfaction of the condition set forth in Section 7.2(c) (regarding the occurrence of the Merger Agreement may be made solely by (Y) Wolverine (and shall not require the consent of the Sponsors) with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof (but, for the avoidance of doubt, no such waiver by Wolverine shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to under clause (2) of the definition thereof) and (Z) shall be made upon the Sponsors (and shall not require the consent of Wolverine) with respect to a Company Material Adverse Effect pursuant to clause (2) unanimous agreement of the definition thereof (but, for the avoidance of doubt, no such waiver by the Sponsors shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof)Sponsors. 1.1.31.1.4. Notwithstanding anything The decision to the contrary contained in Sections 1.1.1 or 1.1.2, (i) any act (or failure to act) on the part of cause Parent or Merger Sub that affects solely the PLG Business or that does not adversely affect in any respect the PSS Business, the Sponsors or the Surviving Corporation may be taken upon the approval of Wolverine and shall not require the approval of Xxxx and Golden Gate, (ii) any act (or failure to act) on the part of Parent or Merger Sub that affects solely the PSS Business or that does not adversely affect in any respect the PLG Business or Wolverine may be taken upon the approval of the Sponsors and shall not require the approval of Wolverine and (iii) any act (or failure to act) on the part of Parent (including causing Merger Sub to act (or to fail to act)) under or relating to the Carveout Transaction Agreements shall be taken upon the approval of the Sponsors and shall that does not require the approval consent of WolverineWolverine under the terms of the Interim Agreement, will be made upon the unanimous consent of the Sponsors. 1.1.41.1.5. Each Party will comply with its obligations Notwithstanding any provision of this Agreement to the contrary, from and after the time a Sponsor becomes a Failing Sponsor (if any) under the Merger Agreementas defined below), the Carveout Transaction Agreements, the Equity Financing Commitments and the Guarantees and will also use all commercially reasonable efforts to cause Parent and Merger Sub to comply with their obligations under the Merger Agreement and the Carveout Transaction Agreements; provided, that the sole and exclusive remedy approval or consent of the Parties such Failing Sponsor shall not be required for any breach or violation of purposes under this Section 1.1.4 shall be to seek specific performance of the aforementioned obligationsAgreement.

Pre-Closing Decisions. 1.1.1. 1.1.1 All decisions to be made with respect to the following issues shall require the unanimous consent of the Parties Investors in each PartyInvestor’s sole discretion: (ia) amending, amending or modifying the Purchase Agreement or terminating the Merger Agreementwaiving any of Buyer’s rights thereunder, (iib) except as provided in Section 1.1.2 below, waiving any of the conditions set forth in Article VII 8 of the Merger Purchase Agreement (the “Closing Conditions”), (c) enforcing any remedies of Buyer under the Purchase Agreement on account of or due to Seller’s breach or threatened breach of any of Seller’s representations, warranties or covenants made therein, (d) determining that there has occurred a breach by Seller of its representations, warranties or covenants contained in the Purchase Agreement, (iiie) enforcing any rights prior to Closing, except as set forth in Section 1.2 below or as contemplated by clause (f) of Parent or Merger Sub under the terms of the Merger Agreementthis Section 1.1.1, (iv) the negotiation or entry by Parent or Merger Sub Buyer into any contract, agreement, arrangement or understanding (whether written or oral) not specifically other than agreements with respect to any regulatory filings contemplated by the Merger Agreement or the Carveout Transaction Agreements (for avoidance of doubt, the entry into, amendment of or modification to the ABL Commitment Letter (as defined below) shall require only the consent of the Sponsors (and not Wolverine)), (v) unless otherwise provided for in Section 1.1.2, the determination as to whether there has occurred a breach by the Company of any of its representations and warranties or covenants contained in the Merger Purchase Agreement, and or (vif) prior to Closing, the taking of any other action by Parent or Merger SubBuyer, other than to prepare for and consummate consummate, and to negotiate, prepare, execute and deliver all documents, agreements, instruments and certificates as shall be necessary to consummate, the Merger (and the other transactions contemplated by the Merger Agreement) and the Carveout Transaction (and the other transactions contemplated by the Carveout Transaction Agreements); provided that after the expiration of sixty (60Purchase Agreement) calendar days following the Termination Date, any Party may, in its sole discretion, cause Parent to terminate the Merger Agreement. 1.1.2. The determination as to whether there has occurred a Company Material Adverse Effect (i) pursuant to clause (1) of the definition thereof shall be made by solely by Wolverine in its sole discretion (and not by Xxxx or Golden Gate) and (ii) pursuant to clause (2) of the definition thereof shall be made manner contemplated by the Sponsors in their sole discretion (and not by Wolverine). Furthermore, notwithstanding anything contained in Section 1.1.1 to the contrary, the decision to waive the condition set forth in Section 7.2(c) of the Merger Agreement may be made solely by (Y) Wolverine (and shall not require the consent of the Sponsors) with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof (but, for the avoidance of doubt, no such waiver by Wolverine shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to clause (2) of the definition thereof) and (Z) the Sponsors (and shall not require the consent of Wolverine) with respect to a Company Material Adverse Effect pursuant to clause (2) of the definition thereof (but, for the avoidance of doubt, no such waiver by the Sponsors shall, in and of itself, be deemed to waive such condition with respect to a Company Material Adverse Effect pursuant to clause (1) of the definition thereof). 1.1.3Purchase Agreement. Notwithstanding anything to the contrary contained in Sections 1.1.1 or 1.1.2provided herein, Arc shall have sole authority and be solely responsible for (and GE will have no authority with respect to) making any and all decisions with respect to (i) negotiating, entering into and borrowing under definitive agreements relating to any act indebtedness to be provided to Arc or a subsidiary thereof in connection with Arc’s direct or indirect financing of the Transaction, including with respect to the debt commitment letter attached as Exhibit C hereto (the “Debt Commitment Letter”) or failure to act) on the part of Parent or Merger Sub that affects solely the PLG Business or that does not adversely affect in any respect the PSS Business, the Sponsors or the Surviving Corporation may be taken upon the approval of Wolverine and shall not require the approval of Xxxx and Golden Gate, (ii) negotiating, entering into and taking any act and all actions with respect to the issuance and sale (in one or failure to acta series of transactions) on the part of Parent any equity securities by Arc in connection with Arc’s direct or Merger Sub that affects solely the PSS Business or that does not adversely affect in any respect the PLG Business or Wolverine may be taken upon the approval indirect financing of the Sponsors Transaction (the “Arc Equity Offering”). 1.1.2 Each Investor agrees that it will comply with, or shall cause its affiliate party thereto to comply with, the respective obligations under such Investor’s Equity Commitment Letter and shall not require the approval of Wolverine and (iii) any act (or failure to act) on the part of Parent (including causing Merger Sub to act (or to fail to act)) under or relating will also use its reasonable best efforts, subject to the Carveout Transaction Agreements shall be taken upon terms and conditions in the approval of Purchase Agreement, to cause the Sponsors and shall not require the approval of Wolverine. 1.1.4. Each Party will Buyer to comply with its obligations (if any) under the Merger Purchase Agreement. 1.1.3 Notwithstanding any provision of this Agreement to the contrary, from and after the time an Investor becomes a Failing Investor (as defined below), the Carveout Transaction Agreementsapproval or consent of such Failing Investor shall not be required for any purposes under Section 1.1 or Section 1.3.1 of this Agreement. For the avoidance of doubt, any provision of Section 1.1 or Section 1.3.1 that requires the Equity Financing Commitments and the Guarantees and will also use all commercially reasonable efforts to cause Parent and Merger Sub to comply with their obligations under the Merger Agreement and the Carveout Transaction Agreements; provided, that the sole and exclusive remedy consent or approval of the Parties for any breach or violation of this Section 1.1.4 Investors shall be deemed to seek specific performance require only the consent or approval of the aforementioned obligationsnon-Failing Investor.