Sale or Merger of CDX Sample Clauses

Sale or Merger of CDX. In the event that Sellers or their Affiliates enter into a letter of intent or other form of proposed agreement with respect to a “Sale of CDX” (as hereinafter defined), then CDX shall, concurrently therewith, provide Buyer with notice of such proposed Sale of CDX. Upon receipt of such notice, Buyer may elect to (i) terminate this Agreement, in which event CDX shall pay to Buyer a break-up fee of $100,000 in addition to reimbursement for its actual out of pocket third party expenses, which third party expenses shall not exceed $300,000 (collectively, the “Sale of CDX Breakup Fee”), or (ii) extend the Closing Date for a period not to exceed thirty days, but in no event later than the date upon which Sellers or their Affiliates shall enter into a definitive agreement with respect to a Sale of CDX . If Buyer elects not to exercise its termination right at such point, and Sellers or their Affiliates enter into a definitive agreement with respect to a Sale of CDX, then CDX shall, concurrently therewith, provide a second notice to Buyer with respect to such definitive agreement, whereupon this Agreement shall automatically terminate, in which event CDX shall pay to Buyer the Sale of CDX Breakup Fee. Notwithstanding the foregoing, in the event of any termination pursuant to this Section 9.3, if the proposed Sale of CDX does not occur, Buyer, in its sole discretion, shall have the right to return the Sale of CDX Breakup Fee to CDX, reinstate this Agreement and all documents contemplated to be entered in connection herewith, and both parties shall negotiate in good faith towards the successful consummation of the transactions contemplated hereby. This Section 9.3 shall not survive the Closing.
Sample 1

Related to Sale or Merger of CDX

  • Consolidation, Merger or Sale In case of any consolidation of the Company with, or merger of the Company into any other corporation, or in case of any sale or conveyance of all or substantially all of the assets of the Company other than in connection with a plan of complete liquidation of the Company, then as a condition of such consolidation, merger or sale or conveyance, adequate provision will be made whereby the holder of this Warrant will have the right to acquire and receive upon exercise of this Warrant in lieu of the shares of Common Stock immediately theretofore acquirable upon the exercise of this Warrant, such shares of stock, securities or assets as may be issued or payable with respect to or in exchange for the number of shares of Common Stock immediately theretofore acquirable and receivable upon exercise of this Warrant had such consolidation, merger or sale or conveyance not taken place. In any such case, the Company will make appropriate provision to insure that the provisions of this Paragraph 4 hereof will thereafter be applicable as nearly as may be in relation to any shares of stock or securities thereafter deliverable upon the exercise of this Warrant. The Company will not effect any consolidation, merger or sale or conveyance unless prior to the consummation thereof, the successor corporation (if other than the Company) assumes by written instrument the obligations under this Paragraph 4 and the obligations to deliver to the holder of this Warrant such shares of stock, securities or assets as, in accordance with the foregoing provisions, the holder may be entitled to acquire.

  • Consolidation, Merger or Sale or Transfer of Assets or Earning Power. (a) In the event that, following the Stock Acquisition Date, directly or indirectly, either (x) the Company shall consolidate with, or merge with and into, any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o)), and the Company shall not be the continuing or surviving corporation of such consolidation or merger, (y) any Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o)) shall consolidate with, or merge with or into, the Company, and the Company shall be the continuing or surviving corporation of such consolidation or merger and, in connection with such consolidation or merger, all or part of the outstanding shares of Company Common Stock shall be converted into or exchanged for stock or other securities of any other Person or cash or any other property, or (z) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer) to any Person or Persons (other than the Company or any of its Subsidiaries in one or more transactions each of which complies with Section 11(o)), in one or more transactions, assets or earning power aggregating more than 50% of the assets or earning power of the Company and its Subsidiaries, taken as a whole (any such event being a "Section 13 Event"), then, and in each such case, proper provision shall be made so that: (i) each holder of a Right, except as provided in Section 7(e), shall thereafter have the right to receive, upon the exercise thereof at the then current Purchase Price, such number of validly authorized and issued, fully paid and non-assessable shares of Common Stock of the Principal Party, which shares shall not be subject to any liens, encumbrances, rights of first refusal, transfer restrictions or other adverse claims, as shall be equal to the result obtained by (1) multiplying the then current Purchase Price by the number of Units of Preferred Stock for which a Right is exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section 1l (a)(ii) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the number of such Units for which a Right would be exercisable hereunder but for the occurrence of such Section 1l (a)(ii) Event by the Purchase Price which would be in effect hereunder but for such first occurrence) and (2) dividing that product (which, following the fast occurrence of a Section 13 Event, shall be the "Purchase Price" for all purposes of this Agreement) by 50% of the current market price (determined pursuant to Section 11(d)) per share of the Common Stock of such Principal Party on the date of consummation of such Section 13 Event; (ii) such Principal Party shall thereafter be liable for, and shall assume, by virtue of such Section 13 Event, all the obligations and duties of the Company pursuant to this Agreement; (iii) the term "Company" shall, for all purposes of this Agreement, thereafter be deemed to refer to such Principal Party, it being specifically intended that the provisions of Section 11 shall apply only to such Principal Party following the first occurrence of a Section 13 Event; (iv) such Principal Party shall take such steps (including, but not limited to, the reservation of a sufficient number of

  • Consummation of Merger The parties hereto expressly acknowledge that the consummation of the transactions hereunder is subject to consummation of the Merger. Nothing herein shall be construed to require Seller to consummate the Merger or take steps in furtherance thereof.

  • CONSOLIDATION, MERGER, SALE OR CONVEYANCE (i) The Issuer may consolidate with or merge into any other person, or sell, convey or transfer all or substantially all of its assets to any other person, without the consent of the Holders of the Notes, provided that: (w) the entity (if other than the Issuer) formed by or resulting from any such consolidation or merger shall be organized and existing under the laws of the United States, any state thereof or the District of Columbia, and shall expressly assume, by an amendment to the Fiscal Agency Agreement and the Notes pursuant to the Fiscal Agency Agreement, the due and punctual payment of the principal of, and premium, if any, and interest on, the Notes and the due and punctual performance and observance of all the covenants and conditions to be performed or observed by the Issuer pursuant to the Fiscal Agency Agreement and the Notes; (x) such amendment shall be in form reasonably satisfactory to the Fiscal and Principal Paying Agent, shall be duly executed by the entity succeeding the Issuer and, when so executed, shall constitute a valid and legally binding agreement of such entity succeeding the Issuer, enforceable against such entity in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors' rights generally and to general principles of equity, regardless of whether in a proceeding in equity or at law, and shall be delivered to the Fiscal and Principal Paying Agent; (y) immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred or be continuing; and (z) the Issuer has delivered to the Fiscal and Principal Paying Agent an officers' certificate and an opinion of counsel, each stating that the conditions precedent to such consolidation, merger, sale, conveyance or transfer have been satisfied. Notwithstanding the foregoing, the Issuer may sell, convey or transfer all or substantially all of its assets to any person which is directly or indirectly wholly-owned by one or more of the Issuer, the Guarantor and their wholly-owned Subsidiaries. (ii) The Guarantor may consolidate with or merge into any other person, or sell, convey or transfer all or substantially all of its assets to any other person, without the consent of the Holders of the Notes, provided that: (v) the purchasing or transferee corporation or the successor, continuing or resulting corporation in the case of a merger or consolidation (if the Guarantor is not the surviving corporation), as the case may be (the "Successor Guarantor"), expressly assumes, by an amendment to the Fiscal Agency Agreement and the Guarantee pursuant to the Fiscal Agency Agreement, the obligations of the Guarantor under the Fiscal Agency Agreement and the Guarantee and the due and punctual performance and observance of all the covenants and conditions to be performed or observed by the Guarantor pursuant to the Fiscal Agency Agreement and the Guarantee; (w) such amendment shall be in form reasonably satisfactory to the Fiscal and Principal Paying Agent, shall be duly executed by the Successor Guarantor and, when so executed, shall constitute a valid and legally binding agreement of such Successor Guarantor, enforceable against such Successor Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors' rights generally and to general principles of equity, regardless of whether in a proceeding in equity or at law, and shall be delivered to the Fiscal and Principal Paying Agent; (x) if such Successor Guarantor is organized under the laws of a jurisdiction other than the Federal Republic of Germany (a "Successor Guarantor Jurisdiction"), such Successor Guarantor agrees to assume the Guarantor's obligations under the Guarantee to pay any U.S. Additional Amounts pursuant to Section 3(b)(i) herein or any amounts akin to German Additional Amounts pursuant to Section 3(b)(ii) herein imposed by the laws of the jurisdiction in which the Successor Guarantor is organized; (y) immediately after giving effect to such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred or be continuing; and (z) the Guarantor shall have delivered to the Fiscal and Principal Paying Agent an officers' certificate and an opinion of counsel, each stating that the conditions precedent to such consolidation, merger, sale, conveyance or transfer have been satisfied. In addition to the foregoing conditions, in the event of any such assumption of the obligations of the Issuer or the Guarantor, the Issuer or the Guarantor, as the case may be, will be required to deliver an opinion of its counsel of recognized standing to the effect that such assumption of the Issuer's or the Guarantor's obligations under the Notes or the Guarantee, as the case may be, shall not be deemed for U.S. federal income tax purposes to be a taxable exchange of the Notes for new Notes by the Holders thereof, resulting in the recognition of gain or loss for such purposes or resulting in any other material adverse tax consequences to Holders of the Notes.

  • Effective Time of Merger This Merger Agreement, or a Certificate of Ownership and Merger setting forth the information required by, and otherwise in compliance with, Section 253 of the General Corporation Law of the State of Delaware with respect to the Merger, shall be delivered for filing with the Secretary of State of the State of Delaware. This Merger Agreement, or Articles of Merger setting forth the information required by, and otherwise in compliance with, Article 5.16 of the Texas Business Corporation Act with respect to the Merger, shall be delivered for filing with the Secretary of State of the State of Texas. The Merger shall become effective upon the later of (i) the day and at the time the Secretary of State of the State of Delaware files such Certificate of Ownership and Merger, and (ii) the day and at the time the Secretary of State of the State of Texas files such Articles of Merger (the time of such effectiveness is herein called the "Effective Time"). Notwithstanding the foregoing, by action of its Board of Directors, either of NewSub2 or AssetCo may terminate this Merger Agreement at any time prior to the filing of the Certificate of Ownership and Merger with respect to the Merger with Secretary of State of the State of Delaware and the Articles of Merger with respect to the Merger with Secretary of State of the State of Texas.

  • Consolidation, Merger, Sale or Purchase of Assets, etc The Borrower will not, nor will permit any of its respective Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of all or any part of its property or assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted: (i) the Borrower and its Subsidiaries may lease (as lessee) or license (as licensee) real or personal property (including intellectual property) in the ordinary course of business (so long as any such lease or license does not create a Capitalized Lease Obligation); (ii) Capital Expenditures by the Borrower and its Subsidiaries; (iii) any Investments permitted pursuant to Section 10.05; (iv) the Borrower and its Subsidiaries may, in the ordinary course of business, sell or otherwise dispose of assets (excluding capital stock of, or other Equity Interests in, Subsidiaries and joint ventures) which, in the reasonable opinion of such Person, are obsolete, uneconomic or worn-out; (v) the Borrower and its Subsidiaries may sell assets (other than (I) the capital stock or other Equity Interests of any Wholly-Owned Subsidiary unless all of the capital stock or other Equity Interests of such Wholly-Owned Subsidiary are sold in accordance with this clause (v) and (II) assets subject to a Contemplated Asset Sale (which shall be governed by Section 10.02(xviii)), so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (x) except for customary post-closing adjustments (to be paid in cash within 180 days following the closing of the respective sale or disposition), at least 75% of the total consideration received by the Borrower or such Subsidiary is paid in cash at the time of the closing of such sale or disposition (provided that sales of assets for aggregate consideration of $20,000,000 (taking the Fair Market Value of any non-cash consideration) in any Fiscal Year of the Borrower shall not be subject to the minimum cash requirement set forth above in this subclause (x)), (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(b) and (z) the aggregate amount of the proceeds received from all assets sold pursuant to this clause (v) shall not exceed $150,000,000 in any Fiscal Year of the Borrower; (vi) each of the Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof and not as part of any financing transaction; (vii) each of the Borrower and its Subsidiaries may grant licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in each case so long as no such grant otherwise affects the Collateral Agent’s security interest in the asset or property subject thereto; (viii) subject to Sections 10.01(b) and (c), transfers of assets (w) pursuant to the Foreign Asset Transfer, (x) among the Qualified Obligors, (y) by any Subsidiary of the Borrower to any Qualified Obligor, and (z) by any Foreign Subsidiary of the Borrower to any Wholly-Owned Foreign Subsidiary of the Borrower, in the case of any such transfer, so long as (I) no Specified Default and no Event of Default then exists or would exist immediately after giving effect to the respective transfer, (II) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the relevant Security Documents in the assets so transferred shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such transfer) and (III) if the respective transferor is party to a Subsidiaries Guaranty, the nature and scope of the obligations of such transferor under its Subsidiaries Guaranty are substantially identical to the nature and scope of the obligations of the respective transferee under its Subsidiaries Guaranty; (ix) subject to Sections 10.01(b) and (c), (x) any Domestic Subsidiary of the Borrower may be merged, consolidated or liquidated with or into the Borrower (so long as the Borrower is the surviving corporation of such merger, consolidation or liquidation) or any Subsidiary Guarantor (so long as a Subsidiary Guarantor is the surviving corporation of such merger, consolidation or liquidation), and (y) any Foreign Subsidiary of the Borrower may be merged, consolidated or liquidated with or into any Wholly-Owned Foreign Subsidiary of the Borrower, so long as such Wholly-Owned Foreign Subsidiary is the surviving corporation of such merger, consolidation or liquidation; provided that any such merger, consolidation or liquidation shall only be permitted pursuant to this Section 10.02 (ix), so long as (I) no Specified Default and no Event of Default then exists or would exist immediately after giving effect thereto, (II) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, consolidation or liquidation) and (III) if the Person to be merged, consolidated or liquidated into another Person as contemplated above is party to a Subsidiaries Guaranty, the nature and scope of the obligations of such Person under its Subsidiaries Guaranty are substantially identical to the nature and scope of the obligations of such other Person under its Subsidiaries Guaranty; (x) subject to Sections 10.01(b) and (c), the Borrower and its Subsidiaries may transfer inventory in a non-cash or cash transfer to Wholly-Owned Subsidiaries of the Borrower that are not Qualified Obligors, in each case so long as (I) any such transfer is made in the ordinary course of its business and consistent with past practice of the Borrower and its Subsidiaries as in effect on the Effective Date, (II) if the respective transfer is being made to any Credit Party, all actions needed to maintain the perfection, priority and enforceability of the security interests, if any, of the Collateral Agent in the assets so transferred are taken at the time of the respective transfer, (III) the Borrower reasonably determines that the transfer is not reasonably likely to be adverse to the interests of the Lenders in any material respect and (IV) no Specified Default and no Event of Default then exists or would exist immediately after giving effect to the respective transfer; (xi) subject to Sections 10.01(b) and (c), so long as no Specified Default and no Event of Default exists at the time of the respective transfer or immediately after giving effect thereto, Qualified Obligors shall be permitted to transfer additional assets (other than inventory, cash, Cash Equivalents and Equity Interests in any Credit Party) to other Subsidiaries of the Borrower, so long as cash in an amount at least equal to the Fair Market Value of the assets so transferred is received by the respective transferor; (xii) the Borrower and its Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are useful in a Permitted Business; (xiii) the U.S. Xxxx Group shall be permitted to make Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 9.14; (xiv) one or more Subsidiaries identified to the Agents may sell all of the Equity Interests of a certain Subsidiary of the Borrower owned by such Subsidiaries and identified to the Agents, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and the respective Subsidiary receives at least Fair Market Value, (x) except for customary post-closing adjustments, at least 20% of the total consideration received by such Subsidiaries (in the aggregate) is paid in cash at the time of the closing of such sale or disposition, (y) the Net Sale Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 5.02(b) and (z) the aggregate amount of the consideration (taking the Fair Market Value of any non-cash consideration) received from all assets sold pursuant to Section (xiv), together with the sale or sales made pursuant to Section 10.02(xx), shall not exceed $50,000,000; (xv) the Sale-Lease Back Transaction; (xvi) each of the Borrower and its Subsidiaries may sell or liquidate Cash Equivalents, in each case for cash at fair market value (as reasonably determined by the Borrower or the respective Subsidiary); (xvii) the Borrower and its Subsidiaries may sell inventory to their respective customers in the ordinary course of business; (xviii) each of the Borrower and its Subsidiaries may effect Contemplated Asset Sales, so long as (i) no Event of Default then exists or would exist immediately after giving effect thereto, (ii) each such sale is an arms’-length transaction and the Borrower or the respective Subsidiary receives at least Fair Market Value, (iii) the consideration therefor consists solely of cash and/or Permitted Installment Notes (to the extent same may be issued in accordance with the definition thereof), (iv) at least 50% of the total consideration received by the Borrower or such Subsidiary is paid in cash at the time of the closing of such sale, and (v) the Net Sale Proceeds therefrom are applied as, and to the extent, required by Section 5.02(b); (xix) the Borrower and its Domestic Subsidiaries may sell and leaseback (i) Real Property located in Xxxxxx County, North Carolina (the “Xxxxxx Property”), to the extent same is not a Principal Property and (ii) Principal Properties, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is made pursuant to an arm’s-length transaction, (x) 100% of the total consideration received by the Borrower or such Subsidiary is paid in cash at the time of the closing of such sale, (y) the Net Sale Proceeds therefrom equal at least 90% of the Fair Market Value of the Property subject to such sale-leaseback transaction and (z) the Net Sale Proceeds therefrom are applied as a mandatory repayment and/or commitment reduction and/or reinvested, in any case, in accordance with the requirements of Section 5.02(b); and (xx) certain Domestic Subsidiaries of the Borrower identified to the Agents may sell the Equity Interests of certain other Domestic Subsidiaries identified to the Agents which own Real Property located in California, and certain Domestic Subsidiaries identified to the Agents which own Real Property located in California may sell Real Property and other assets, in each case, so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and the respective Subsidiary receives at least Fair Market Value, (x) except for customary post-closing adjustments, at least 75% of the total consideration received by such Subsidiaries (in the aggregate) is paid in cash at the time of the closing of such sale, (y) unless on-loaned to an Affiliate of a Borrower in accordance with the requirements of Sections 10.05 and 10.07 promptly following the consummation of such sale, any Net Sale Proceeds therefrom received by a Subsidiary of a Borrower (exclusive of any portion thereof which is distributed to a minority shareholder of such Subsidiary in accordance with the requirements of Section 10.06) are applied and/or reinvested as (and to the extent) required by Section 5.02(b) and (z) the aggregate amount of the consideration (taking the Fair Market Value of any non-cash consideration) received from such sale or sales pursuant to Section (xx), together with the sale or sales made pursuant to Section 10.02(xiv) shall not exceed $50,000,000 (the “California Disposition”).

  • CONSOLIDATION, MERGER AND SALE Unless a Company Order or supplemental indenture establishing a series of Securities provides otherwise, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other corporation or corporations (whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or other disposition of all or substantially all of the property of the Company or its successor or successors as an entirety, or substantially as an entirety, to any other corporation (whether or not affiliated with the Company or its successor or successors) authorized to acquire and operate the same; provided, however, the Company hereby covenants and agrees that, upon any such consolidation, merger, sale, conveyance, transfer or other disposition, the due and punctual payment of the principal of (premium, if any) and interest on all of the Securities of all series in accordance with the terms of each series, according to their tenor, and the due and punctual performance and observance of all the covenants and conditions of this Indenture with respect to each series or established with respect to such series pursuant to Section 2.01 to be kept or performed by the Company, shall be expressly assumed, by supplemental indenture (which shall conform to the provisions of the Trust Indenture Act as then in effect) satisfactory in form to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or into which the Company shall have been merged, or by the entity which shall have acquired such property.

  • Effective Time of the Merger At the Effective Time of the Merger, NEWCO shall be merged with and into the COMPANY in accordance with the Articles of Merger, the separate existence of NEWCO shall cease, the COMPANY shall be the surviving party in the Merger and the COMPANY is sometimes hereinafter referred to as the Surviving Corporation. The Merger will be effected in a single transaction.

  • Consolidation, Merger or Sale or Transfer of Assets or Earning Power In the event that, at any time after a Person becomes an Acquiring Person, directly or indirectly, (i) the Company shall consolidate with, or merge with and into, any other Person, (ii) any Person shall consolidate with the Company, or merge with and into the Company and the Company shall be the continuing or surviving corporation of such merger and, in connection with such merger, all or part of the Common Shares shall be changed into or exchanged for stock or other securities of any other Person (or the Company) or cash or any other property, or (iii) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets or earning power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to any other Person other than the Company or one or more of its wholly-owned Subsidiaries, then, and in each such case, proper provision shall be made so that (A) each holder of a Right (except as otherwise provided herein) shall thereafter have the right to receive, upon the exercise thereof at a price equal to the then current Purchase Price multiplied by the number of one one-thousandths of a Preferred Share for which a Right is then exercisable, in accordance with the terms of this Agreement and in lieu of Preferred Shares, such number of Common Shares of such other Person (including the Company as successor thereto or as the surviving corporation) as shall equal the result obtained by (x) multiplying the then current Purchase Price by the number of one one-thousandths of a Preferred Share for which a Right is then exercisable and dividing that product by (y) 50% of the then current per share market price of the Common Shares of such other Person (determined pursuant to Section 11(d) hereof) on the date of consummation of such consolidation, merger, sale or transfer; (B) the issuer of such Common Shares shall thereafter be liable for, and shall assume, by virtue of such consolidation, merger, sale or transfer, all the obligations and duties of the Company pursuant to this Agreement; (C) the term "Company" shall thereafter be deemed to refer to such issuer; and (D) such issuer shall take such steps (including, but not limited to, the reservation of a sufficient number of its Common Shares in accordance with Section 9 hereof) in connection with such consummation as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to the Common Shares thereafter deliverable upon the exercise of the Rights. The Company covenants and agrees that it shall not consummate any such consolidation, merger, sale or transfer unless prior thereto the Company and such issuer shall have executed and delivered to the Rights Agent a supplemental agreement so providing. The Company shall not enter into any transaction of the kind referred to in this Section 13 if at the time of such transaction there are any rights, warrants, instruments or securities outstanding or any agreements or arrangements which, as a result of the consummation of such transaction, would eliminate or substantially diminish the benefits intended to be afforded by the Rights. The provisions of this Section 13 shall similarly apply to successive mergers or consolidations or sales or other transfers. For purposes hereof, the "earning power" of the Company and its Subsidiaries shall be determined in good faith by the Company's Board of Directors on the basis of the operating earnings of each business operated by the Company and its Subsidiaries during the three fiscal years preceding the date of such determination (or, in the case of any business not operated by the Company or any Subsidiary during three full fiscal years preceding such date, during the period such business was operated by the Company or any Subsidiary).

  • Consolidation or Merger The Issuer may consolidate with, or sell, lease or convey all or substantially all of its assets as an entirety to, or merge with or into any other corporation provided that in any such case, (i) either the Issuer shall be the continuing corporation, or the successor corporation shall be a corporation organised and existing under the laws of the jurisdiction in which the Issuer is incorporated or any province, territory, state or other political subdivision thereof and such successor corporation shall expressly assume the due and punctual payment of the principal of and interest (including Additional Amounts as provided in Condition 7) on all the Notes and Coupons, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of the Notes to be performed by the Issuer by an amendment to the Agency Agreement or, as the case may be, the TCCI Note Agency Agreement or the TMCC Note Agency Agreement, executed by such successor corporation, the Issuer and the Agent or the TCCI Registrar and the TCCI Transfer Agent or the TMCC Registrar and the TMCC Transfer Agent, as the case may be, and (ii) immediately after giving effect to such transaction, no Event of Default under Condition 9, and no event which, with notice or lapse of time or both, would become such an Event of Default shall have happened and be continuing. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein as the Issuer, and the predecessor corporation, except in the event of a conveyance by way of lease, shall be relieved of any further obligation under the Notes and the Agency Agreement or, as the case may be, the TCCI Note Agency Agreement or the TMCC Note Agency Agreement.