Common use of Termination by the Shareholder Clause in Contracts

Termination by the Shareholder. The Shareholder, when not in material default in performance of his obligations under this Agreement, may, without prejudice to any other rights, terminate this Agreement by notice to the Offeror's Parent if: (a) the Offer has not been made as provided in section 1.1 hereof, (b) the Offer does not substantially conform with, or subject to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement or the provisions of this Agreement; (c) Shares deposited under the Offer (including the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end of the tenth day following the expiry of the Offer; (d) the Offer is abandoned by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn); (e) after January 31, 2004 if the Offeror has not purchased any Shares pursuant to the Offer, otherwise than as a result of the material breach by the Shareholder of any material covenant or obligation under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respect; provided, however, that if the Offeror's take up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated by the Shareholder pursuant to this section until the earlier of (i) March 31, 2004 and (ii) the fifth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; and (f) the Support Agreement is terminated in accordance with its terms.

Termination by the Shareholder. The Shareholder, when not in material default in the performance of his its obligations under this Agreement, may, without prejudice to any other rightsof its rights hereunder and in its sole discretion, terminate this Agreement by written notice to the Offeror's Parent Offeror if: (a) any of the Offer has representations and warranties of the Parent or the Offeror under this Agreement shall not been made as provided be true and correct in section 1.1 hereof,all material respects; (b) either the Offer does not substantially conform with, or subject to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement Parent or the provisions of this AgreementOfferor shall not have complied with its material covenants to the Shareholder contained herein; (c) Shares deposited under the terms of the Offer (including do not conform with the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end provisions of the tenth day following the expiry of the OfferSupport Agreement; (d) the Offer is abandoned Take-up Date has not occurred by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn)December 22, 2006; (e) after January 31, 2004 if the Offeror has not purchased any Shares pursuant to mailed the Offer, otherwise than as a result Notice of Variation within the time period provided for in section 2.1 of the material breach by the Shareholder of any material covenant or obligation under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respect; provided, however, that if the Offeror's take up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated by the Shareholder pursuant to this section until the earlier of (i) March 31, 2004 and (ii) the fifth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; andSupport Agreement; (f) the Support Agreement is has been terminated in accordance with its terms; or (a) a bona fide written proposal for an Alternative Transaction is made that is available to all holders of Shares on identical terms which, if consummated in accordance with its terms, would result in a transaction more favourable to the Shareholder from a financial point of view than the Offer, as determined by the Shareholder, acting reasonably (a "Superior Proposal"), and the Offeror does not increase the consideration under the Offer to consideration at least equivalent to the consideration under the Superior Proposal on or prior to the earlier to occur of (i) the third Business Day after the Shareholder or the Company, whichever is first, has advised the Offeror that it considers such Alternative Transaction to be a Superior Proposal, and (ii) the last day on which the Shareholder can prudently withdraw the Shares it has deposited under the Offer in order to tender, deposit or otherwise deliver such Shares to the Person making the Superior Proposal.

Termination by the Shareholder. The Each Shareholder, when not in material default in the performance of his its obligations under this Agreement, may, without prejudice to any other rightsof its rights hereunder and in its sole discretion, terminate this Agreement by written notice to the Offeror's Parent Offeror if: (a) any of the Offer has representations and warranties of the Offeror under this Agreement shall not been made as provided be true and correct in section 1.1 hereof,all material respects; (b) the Offer does Offeror shall not substantially conform with, or subject have complied with its material covenants to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement or the provisions of this Agreementsuch Shareholder contained herein; (c) Shares deposited under the terms of the Offer (including do not conform with the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end provisions of the tenth day following the expiry of the OfferSupport Agreement; (d) the Offer is abandoned by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn); (e) after January 31, 2004 if the Offeror Take-up Date has not purchased any Shares pursuant to the Offer, otherwise than as a result occurred within 120 days of the material breach by the Shareholder of any material covenant or obligation under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respectLatest Mailing Time; provided, however, that if the Offeror's take ’s take-up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver waiver, consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated by the such Shareholder pursuant to this section Section 5.2(d) until the earlier of (ia) March 31, 2004 180 days after the Offer is commenced and (iiB) the fifth business day tenth Business Day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; and; (e) the Offeror has not mailed the Offer within the time period provided for in section 2.1(c) of the Support Agreement; (f) the Support Agreement is has been terminated in accordance with its terms; or (g) a bona fide written proposal for an Alternative Transaction is made available to all holders of Shares on identical terms which, if consummated in accordance with its terms, would result in a transaction more favourable to such Shareholder from a financial point of view than the Offer, as determined by such Shareholder, acting reasonably (a “Superior Proposal”), and the Offeror does not increase the consideration under the Offer to consideration at least equivalent to the consideration under the Superior Proposal on or prior to the earlier to occur of (i) the third Business Day after the Shareholders or the Company, whichever is first, have advised the Offeror that they or it, as applicable, consider such Alternative Transaction to be a Superior Proposal, and (ii) the last day on which such Shareholder can prudently withdraw the Shares it has deposited under the Offer in order to tender, deposit or otherwise deliver such Shares to the Person making the Superior Proposal.

Termination by the Shareholder. The Each Shareholder, when not in material default in the performance of his its obligations under this Agreement, may, without prejudice to any other rightsof its rights hereunder and in its sole discretion, terminate this Agreement by written notice to the Offeror's Parent Offeror if: (a) any of the Offer has representations and warranties of the Parent or the Offeror under this Agreement shall not been made as provided be true and correct in section 1.1 hereof,all material respects; (b) either the Offer does not substantially conform with, or subject to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement Parent or the provisions of this AgreementOfferor shall not have complied with its material covenants to such Shareholder contained herein; (c) Shares deposited under the terms of the Offer (including do not conform with the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end provisions of the tenth day following the expiry of the OfferSupport Agreement; (d) the Offer is abandoned Take-up Date has not occurred by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn)December 22, 2006; (e) after January 31, 2004 if the Offeror has not purchased any Shares pursuant to mailed the Offer, otherwise than as a result Notice of Variation within the time period provided for in section 2.1 of the material breach by the Shareholder of any material covenant or obligation under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respect; provided, however, that if the Offeror's take up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated by the Shareholder pursuant to this section until the earlier of (i) March 31, 2004 and (ii) the fifth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; andSupport Agreement; (f) the Support Agreement is has been terminated in accordance with its terms; or (g) a bona fide written proposal is made for an Alternative Transaction that is available to all holders of Shares on identical terms which, if consummated in accordance with its terms, would result in a transaction more favourable to such Shareholder from a financial point of view than the Offer, as determined by such Shareholder, acting reasonably (a "Superior Proposal"), and the Offeror does not increase the consideration under the Offer to consideration at least equivalent to the consideration under the Superior Proposal on or prior to the earlier to occur of (i) the third Business Day after the Shareholders or the Company, whichever is first, have advised the Offeror that they or it, as applicable, consider such Alternative Transaction to be a Superior Proposal, and (ii) the last day on which such Shareholder can prudently withdraw the Shares it has deposited under the Offer in order to tender, deposit or otherwise deliver such Shares to the Person making the Superior Proposal.

Termination by the Shareholder. The Each Shareholder, when not in material default in the performance of his its obligations under this Agreement, may, without prejudice to any other rightsof its rights hereunder and in its sole discretion, terminate this Agreement by written notice to the Offeror's Parent Offeror if: (a) any of the Offer has representations and warranties of the Parent or the Offeror under this Agreement shall not been made as provided be true and correct in section 1.1 hereof,all material respects; (b) either the Offer does not substantially conform with, or subject to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement Parent or the provisions of this AgreementOfferor shall not have complied with its material covenants to such Shareholder contained herein; (c) Shares deposited under the terms of the Offer (including do not conform with the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end provisions of the tenth day following the expiry of the OfferSupport Agreement; (d) the Offer is abandoned Take-up Date has not occurred by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn)December 22, 2006; (e) after January 31, 2004 if the Offeror has not purchased any Shares pursuant to mailed the Offer, otherwise than as a result Notice of Variation within the time period provided for in section 2.1 of the material breach by the Shareholder of any material covenant or obligation under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respect; provided, however, that if the Offeror's take up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated by the Shareholder pursuant to this section until the earlier of (i) March 31, 2004 and (ii) the fifth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; andSupport Agreement; (f) the Support Agreement is has been terminated in accordance with its terms; or (g) a bona fide written proposal is made for an Alternative Transaction that is available to all holders of Shares on identical terms which, if consummated in accordance with its terms, would result in a transaction more favourable to such Shareholder from a financial point of view than the Offer, as determined by such Shareholder, acting reasonably (a “Superior Proposal”), and the Offeror does not increase the consideration under the Offer to consideration at least equivalent to the consideration under the Superior Proposal on or prior to the earlier to occur of (i) the third Business Day after the Shareholders or the Company, whichever is first, have advised the Offeror that they or it, as applicable, consider such Alternative Transaction to be a Superior Proposal, and (ii) the last day on which such Shareholder can prudently withdraw the Shares it has deposited under the Offer in order to tender, deposit or otherwise deliver such Shares to the Person making the Superior Proposal.

Termination by the Shareholder. The Each Shareholder, when not in material default in the performance of his its obligations under this Agreement, may, without prejudice to any other rightsof its rights hereunder and in its sole discretion, terminate this Agreement by written notice to the Offeror's Parent Offeror if: (a) any of the Offer has representations and warranties of the Offeror under this Agreement shall not been made as provided be true and correct in section 1.1 hereof,all material respects; (b) the Offer does Offeror shall not substantially conform with, or subject have complied with its material covenants to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement or the provisions of this Agreementsuch Shareholder contained herein; (c) Shares deposited under the terms of the Offer (including do not conform with the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end provisions of the tenth day following the expiry of the OfferSupport Agreement; (d) the Offer is abandoned by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn); (e) after January 31, 2004 if the Offeror Take-up Date has not purchased any Shares pursuant to the Offer, otherwise than as a result occurred within 120 days of the material breach by the Shareholder of any material covenant or obligation under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respectLatest Mailing Time; provided, however, that if the Offeror's take take-up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver waiver, consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated by the such Shareholder pursuant to this section Section 5.2(d) until the earlier of (ia) March 31, 2004 180 days after the Offer is commenced and (iiB) the fifth business day tenth Business Day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; and; (e) the Offeror has not mailed the Offer within the time period provided for in section 2.1(c) of the Support Agreement; (f) the Support Agreement is has been terminated in accordance with its terms; or (g) a bona fide written proposal for an Alternative Transaction is made available to all holders of Shares on identical terms which, if consummated in accordance with its terms, would result in a transaction more favourable to such Shareholder from a financial point of view than the Offer, as determined by such Shareholder, acting reasonably (a "Superior Proposal"), and the Offeror does not increase the consideration under the Offer to consideration at least equivalent to the consideration under the Superior Proposal on or prior to the earlier to occur of (i) the third Business Day after the Shareholders or the Company, whichever is first, have advised the Offeror that they or it, as applicable, consider such Alternative Transaction to be a Superior Proposal, and (ii) the last day on which such Shareholder can prudently withdraw the Shares it has deposited under the Offer in order to tender, deposit or otherwise deliver such Shares to the Person making the Superior Proposal.

Termination by the Shareholder. The Shareholder, when not in material default in the performance of his its obligations under this Agreement, may, without prejudice to any other rightsof its rights hereunder and in its sole discretion, terminate this Agreement by written notice to the Offeror's Parent Offeror if: (a) any of the Offer has representations and warranties of the Parent or the Offeror under this Agreement shall not been made as provided be true and correct in section 1.1 hereof,all material respects; (b) either the Offer does not substantially conform with, or subject to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement Parent or the provisions of this AgreementOfferor shall not have complied with its material covenants to the Shareholder contained herein; (c) Shares deposited under the terms of the Offer (including do not conform with the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end provisions of the tenth day following the expiry of the OfferSupport Agreement; (d) the Offer is abandoned Take-up Date has not occurred by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn)December 22, 2006; (e) after January 31, 2004 if the Offeror has not purchased any Shares pursuant to mailed the Offer, otherwise than as a result Notice of Variation within the time period provided for in section 2.1 of the material breach by the Shareholder of any material covenant or obligation under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respect; provided, however, that if the Offeror's take up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated by the Shareholder pursuant to this section until the earlier of (i) March 31, 2004 and (ii) the fifth business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; andSupport Agreement; (f) the Support Agreement is has been terminated in accordance with its terms; or (g) a bona fide written proposal for an Alternative Transaction is made that is available to all holders of Shares on identical terms which, if consummated in accordance with its terms, would result in a transaction more favourable to the Shareholder from a financial point of view than the Offer, as determined by the Shareholder, acting reasonably (a “Superior Proposal”), and the Offeror does not increase the consideration under the Offer to consideration at least equivalent to the consideration under the Superior Proposal on or prior to the earlier to occur of (i) the third Business Day after the Shareholder or the Company, whichever is first, has advised the Offeror that it considers such Alternative Transaction to be a Superior Proposal, and (ii) the last day on which the Shareholder can prudently withdraw the Shares it has deposited under the Offer in order to tender, deposit or otherwise deliver such Shares to the Person making the Superior Proposal.

Termination by the Shareholder. The Shareholder, when not in material default in its performance of his its obligations under this Agreement, may, without prejudice to any other rightsof its rights hereunder and in its sole discretion, terminate this Agreement by written notice to the Offeror's Parent Acquireco if: (a) the Offer has not been made as provided in section 1.1 hereof, (b) the Offer does not substantially conform with, or subject to section 1.2 hereof is modified in a manner so as not to conform with, the description in the Support Agreement or the provisions of this Agreement; (c) Shares deposited under the Offer (including the Shareholder's Shares) have not, for any reason whatsoever, been taken up and paid for on or before the end of the tenth day following the expiry representations and warranties of the Offer; (d) the Offer is abandoned by the Offeror (which shall be conclusively evidenced by the Offeror issuing a press release or otherwise publicly disclosing or announcing that the Offer is withdrawn); (e) after January 31, 2004 if the Offeror has not purchased any Shares pursuant to the Offer, otherwise than as a result of the material breach by the Shareholder of any material covenant or obligation Acquireco under this Agreement or as a result of any representation or warranty of the Shareholder in this Agreement being untrue or incorrect in any material respect; provided, however, that if the Offeror's take up and payment for Shares deposited under the Offer is delayed by (i) an injunction or order made by a court or regulatory authority of competent jurisdiction, or (ii) the Offeror not having obtained any regulatory waiver consent or approval which is necessary to permit the Offeror to take up and pay for the Shares deposited under the Offer, then, provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval is being actively sought, as applicable, this Agreement shall not be terminated true and correct in all material respects; (b) Acquireco shall not have complied in all respects with its covenant not to amend, waive or consent to any provision of or under the Arrangement Agreement to change the Outside Date to a date later than April 23, 2010 or to change the form of, or to decrease, the consideration per Share under the Arrangement; or (c) Acquireco shall not have complied with its other covenants to the Shareholder contained herein in all material respects, provided that the Shareholder may not exercise any termination right provided in sections 5.2 (a) and (c) above, unless forthwith and in any event prior to the filing of the articles of arrangement for acceptance by the Director, the Shareholder pursuant has delivered a written notice to Acquireco specifying in reasonable detail all breaches of covenants, representations and warranties or other matters which the Shareholder is asserting as the basis for exercise of the termination right. If any such notice is delivered, provided that Acquireco is proceeding diligently to cure all such matters, if and for so long as all such matters are susceptible of being cured (for greater certainty, except by way of disclosure in the case of representations and warranties) (“Curable Matters”), the Shareholder may not terminate this section Agreement as a result thereof until the earlier of (i) March 31the date that any Curable Matter is no longer susceptible of being cured, 2004 (ii) the date that Acquireco is no longer proceeding diligently to cure all Curable Matters, and (iii) later of (A) the Outside Date and (B) the expiration of a period of 15 days from such notice (the “Termination Period”). If such notice has been delivered prior to the date of the Target Meeting, such meeting shall, unless the parties agree otherwise, be postponed or adjourned until the earlier of (i) the date that is two business days after the date that Acquireco notifies the Shareholder that all Curable Matters have been cured, and (ii) the fifth business day following expiry of the date on which such injunction or order ceases to be in effect or such waiver, consent or approval is obtained, as applicable; and (f) the Support Termination Period unless this Agreement is terminated in accordance with on such date. If such notice has been delivered prior to the making of the application for the Final Order or the filing of the articles of arrangement for acceptance by the Director, such application and such filing shall be postponed until the earlier of (x) the date that is two business days after the date that Acquireco notifies the Shareholder that all Curable Matters have been cured, and (y) the expiry of the Termination Period unless this Agreement is terminated on such date. For greater certainty, if all Curable Matters are cured within the Termination Period without being Materially Adverse to Acquireco and its termsSubsidiaries, taken as a whole, this Agreement may not be terminated pursuant to sections 5.2 (a) or (c) above as a result of the Curable Matter having been cured.