Common use of Termination by Xxxxxx Clause in Contracts

Termination by Xxxxxx. This Agreement may be terminated and the Merger Transactions abandoned at any time before the Acceptance Time by Parent: (a) if the Company breaches any of its representations or warranties, or fails to perform any of its covenants or agreements contained in this Agreement, and which breach or failure (i) would give rise to the failure of a condition set forth in paragraph (d), (e) or (f) of Annex I and (ii) by its nature cannot be cured or has not been cured by the Company by the earlier of (A) the Outside Date and (B) the date that is twenty (20) Business Days after the Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in material breach of their respective representations or warranties or materially failing to perform their respective covenants or agreements contained in this Agreement in a manner that would allow the Company to terminate this Agreement under Section 7.4(b); or (b) (i) upon prior written notice to the Company if the Company Board (acting upon the recommendation of the Special Committee), the Special Committee or any other duly authorized committee of disinterested members of the Company Board shall have effected an Adverse Recommendation Change (provided that, any written notice, including pursuant to Section 5.3(d), of the Company’s intention to make an Adverse Recommendation Change in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i) unless such written notice otherwise constitutes an Adverse Recommendation Change); provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(i) unless the notice of termination pursuant to this Section 7.3(b)(i) is delivered by Parent to the Company within five (5) Business Days following the occurrence of the event giving rise to Parent’s right to terminate this Agreement pursuant to this Section 7.3(b)(i), (ii) if the Company shall have materially breached any of its obligations under Section 5.3, (iii) if the Company shall have failed, within ten (10) Business Days of a tender or exchange offer that constitutes a Takeover Proposal relating to securities of the Company having been commenced, to publicly recommend against such tender or exchange offer or (iv) if the Company shall have failed to publicly reaffirm its recommendation of the Offer and the Merger within ten (10) Business Days after a request to do so by Parent following the date any Takeover Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders (provided that Parent may only make such request once with respect to each Takeover Proposal and each material modification thereto).

Termination by Xxxxxx. This Agreement may be terminated and the Merger Transactions abandoned at any time before prior to the Acceptance Effective Time by Parentaction of the Board of Directors of Xxxxxx, after consultation with its outside legal advisors, if: (a) if the Company breaches (i)(A) there has been a breach by Edge or Merger Sub of any of its representations representation, warranty, covenant or warranties, or fails to perform any of its covenants or agreements contained in this Agreement, and which breach or failure (i) would give rise to the failure of a condition agreement set forth in paragraph (d)this Agreement or if any representation or warranty of Edge or Merger Sub shall have become untrue, (ein either case such that the conditions set forth in Section 8.2(a) or (f) of Annex I and (ii) by its nature canwould not be cured or has not satisfied if the Closing were to have been cured held on the date notice of termination is given to Edge by the Company by the earlier of (A) the Outside Date Xxxxxx and (B) the date that such breach is twenty (20) Business Days not curable, or, if curable, is not cured within 30 days after the Company’s receipt of written notice of such breach from Parentis given to Edge by Xxxxxx; or (ii) there is any event or occurrence, but only so long as neither Parent nor Merger Sub are then or series of events or occurrences, that has had or is reasonably likely to have, individually or in material breach the aggregate with all other events or occurrences since the date of their respective representations or warranties or materially failing to perform their respective covenants or agreements contained in this Agreement in a manner Agreement, an Edge Material Adverse Effect that would allow has not been cured at the Company to terminate this Agreement under Section 7.4(b); or (b) (i) upon prior written notice to the Company if the Company Board (acting upon the recommendation time of the Special Committee), the Special Committee or any other duly authorized committee termination of disinterested members of the Company Board shall have effected an Adverse Recommendation Change (provided that, any written notice, including pursuant to Section 5.3(d), of the Company’s intention to make an Adverse Recommendation Change in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i) unless such written notice otherwise constitutes an Adverse Recommendation Change); provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(isubsection; (b) unless the notice a vote of termination Edge's stockholders is required pursuant to this Section 7.3(b)(i) is delivered by Parent the rules of the Nasdaq, the Board of Directors of Edge shall have failed to recommend to its stockholders or shall have withdrawn or materially modified, in a manner adverse to Xxxxxx, its approval or recommendation of the issuance of shares of Edge Common Stock pursuant to the Company within five Merger, or resolved to do so; or (5c) Business Days following the occurrence Board of the event giving rise to Parent’s right to terminate this Agreement pursuant to this Section 7.3(b)(i), (ii) if the Company Directors of Edge shall have materially breached any of its obligations under Section 5.3, (iii) if the Company shall have failed, within ten (10) Business Days of failed to recommend against a tender or exchange offer that constitutes a Takeover Proposal relating to securities for the acquisition of 50% or more of the Company voting power of Edge's outstanding capital stock within the time periods prescribed under Rule 14d-9 and Rule 14e-2 under the Exchange Act (unless Edge has taken no position as provided in Section 14e-2(a)(2) and (3) of the Exchange Act as a result of Edge not having been commencedadequate information or not having completed its due diligence with respect thereto prior to such time or Edge otherwise not having sufficient time to have formulated or made a recommendation), to publicly recommend against such tender or exchange offer Edge shall have (i) entered into or the Board of Directors of Edge shall have recommended, a transaction, proposal or offer, involving the acquisition, directly or indirectly, for consideration consisting of cash and/or securities, of 50% or more of the shares of Edge's capital stock then outstanding, voting securities representing 50% or more of the voting power of the then outstanding shares of Edge capital stock, or all or substantially all of the assets of Edge (an "Edge Acquisition Proposal") or (ivii) if entered into any definitive agreement in respect of an Edge Acquisition Proposal. For the Company shall have failed to publicly reaffirm its recommendation avoidance of doubt, the taking of any of the Offer and the Merger within ten (10foregoing actions in this Section 9.3(c) Business Days after by Edge shall not be considered a request to do so breach of this Agreement by Parent following the date any Takeover Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders (provided that Parent may only make such request once with respect to each Takeover Proposal and each material modification thereto)Edge.

Termination by Xxxxxx. This Xxxxxx may terminate this Agreement may be terminated and upon delivery of written notice to the Merger Transactions abandoned Caesars Parties in accordance with Section 23 hereof at any time before after the Acceptance Time by Parent:occurrence of, and during the continuation of, any of the following events (each, a “Xxxxxx Termination Event”): (a) if the Company breaches breach by any of its representations or the Caesars Parties of any of their obligations, representations, warranties, or fails to perform any of its covenants or agreements contained in this Agreement, and which breach or failure (i) would give rise to the failure of a condition set forth in paragraph this Agreement in any material respect, which breach of covenant or obligation (d), if curable) remains uncured for a period of five (e5) or (f) of Annex I and (ii) by its nature cannot be cured or has not been cured by the Company by the earlier of (A) the Outside Date and (B) the date that is twenty (20) consecutive Business Days after the Company’s receipt by the Caesars Parties, of written notice of such breach from ParentXxxxxx; (b) a trustee under section 1104 of the Bankruptcy Code or an examiner (with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code) shall have been appointed in the Chapter 11 Cases or a CEC Chapter 11 Case; (c) the Chapter 11 Cases or a CEC Chapter 11 Case shall have been converted to cases under chapter 7 of the Bankruptcy Code or dismissed, but only so long as neither Parent nor Merger Sub are then in material breach each case, by order of the Bankruptcy Court, which order has not otherwise been stayed; (d) a Caesars Party, or any of their respective representations Affiliates enters into or warranties otherwise publicly discloses an agreement, or files any motion or pleading with a court of competent jurisdiction (including, without limitation, the Bankruptcy Court), in each case, that is materially failing to perform their respective covenants or agreements contained in inconsistent with this Agreement in a manner and such agreement, motion or pleading has not been terminated, modified or withdrawn within two (2) Business Days of each of the Company’s and CEC’s receiving written notice from Xxxxxx that such agreement, motion or pleading is materially inconsistent with this Agreement, unless such agreement, motion or pleading does not provide for or seek, and could not result in, relief that would allow have any adverse impact on the Company interest of holders of 2016 Fee Notes in connection with the Restructuring; (e) the exercise by any Caesars Party of its rights pursuant to terminate Section 19 hereof; (f) if any of the Definitive Documentation or other documents necessary to effectuate the Restructuring (including any amendment or modification thereof) filed with the Bankruptcy Court or otherwise finalized, or has become effective, shall contain terms and conditions that are not materially consistent with this Agreement under Section 7.4(b)and such material inconsistency remains uncured for a period of five (5) consecutive Business Days after the receipt by the Caesars Parties from Xxxxxx of written notice of such material inconsistency; (g) a CEC Bankruptcy Event, unless consented to by CEC within fifteen days of such CEC Bankruptcy Event; (h) if prior to March 31, 2017, (i) the CEC Petition Date has occurred, (ii) a CEC Plan, which together with the CEOC Plan would provide treatment to the 2016 Fee Notes that is economically identical in all respects to their treatment in the CEOC Plan, has not been filed and (iii) the CEOC Confirmation Order has not been entered; (i) if the Confirmation Hearing with respect to the CEOC Plan has not commenced on or prior to March 31, 2017; (j) the Effective Date has not occurred by the Outside Date; or (bk) (i) upon prior written notice the CAC RSA ceases to the Company if the Company Board (acting upon the recommendation of the Special Committee), the Special Committee or any other duly authorized committee of disinterested members of the Company Board shall have effected an Adverse Recommendation Change (provided that, any written notice, including pursuant to Section 5.3(d), of the Company’s intention to make an Adverse Recommendation Change be in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i) unless such written notice otherwise constitutes an Adverse Recommendation Change); provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(i) unless the notice of termination pursuant to this Section 7.3(b)(i) is delivered by Parent to the Company within five (5) Business Days following the occurrence of the event giving rise to Parent’s right to terminate this Agreement pursuant to this Section 7.3(b)(i), (ii) if the Company shall have materially breached any of its obligations under Section 5.3, (iii) if the Company shall have failed, within ten (10) Business Days of a tender or exchange offer that constitutes a Takeover Proposal relating to securities of the Company having been commenced, to publicly recommend against such tender or exchange offer or (iv) if the Company shall have failed to publicly reaffirm its recommendation of the Offer full force and the Merger within ten (10) Business Days after a request to do so by Parent following the date any Takeover Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders (provided that Parent may only make such request once with respect to each Takeover Proposal and each material modification thereto)effect.

Termination by Xxxxxx. This Agreement Although XXXXXX anticipates a mutually rewarding employment relationship with Xx. Xxxxxxxx, XXXXXX may be terminated and the Merger Transactions abandoned terminate his employment immediately at any time before the Acceptance Time by Parent: with or without cause. For purposes of this Agreement, "Cause" is defined as: (a) if acts or omissions constituting gross negligence, recklessness or willful misconduct on the Company breaches any part of its representations Xx. Xxxxxxxx with respect to his obligations or warrantiesotherwise relating to the business of SANDAG; (b) Xx. Xxxxxxxx' material breach of this Agreement; (c) Xx. Xxxxxxxx' conviction or entry of a plea of nolo contendere for fraud, misappropriation or embezzlement, or fails to perform any of its covenants felony or agreements contained in this Agreement, and which breach crime or failure (i) would give rise to the failure of a condition set forth in paragraph moral turpitude; (d), ) Xx. Xxxxxxxx' willful neglect of duties as determined in the sole and exclusive discretion of the Board of Directors; (e) Xx. Xxxxxxxx' failure to perform the essential functions of his position, with or without reasonable accommodation, due to a mental or physical disability; or (f) of Annex I and (ii) by its nature cannot Xx. Xxxxxxxx' death. In the event Xx. Xxxxxxxx' employment is terminated in accordancewith subsection 7.1, he shall be cured or has not been cured by entitled to receive the Company by the earlier of (A) the Outside Date and (B) Base Salary then in effect, prorated to the date that is twenty (20) Business Days after the Company’s receipt of written notice termination, and a "Severance Payment,· equivalent to six months of such breach from Parent, but only so long as neither Parent nor Merger Sub are his Base Salary then in material breach effect on the date of their respective representations or warranties or materially failing to perform their respective covenants or agreements contained in this Agreement termination, payable in a manner lump sum, provided that would allow Xx. Xxxxxxxx executes a full general release,releasing all claims, known or unknown, that he may have against SANDAG arising out of or any way related to his employment or termination of employment with SANDAG.All other SANDAG obligations to Xx. Xxxxxxxx will be automatically terminated and completely extinguished. The Board of Directors may determine, at its discretion, that circumstances exist whereby Xx. Xxxxxxxx shall be terminated with cause and without severance pay. If this determination is made and executed, Xx. Xxxxxxxx has no obligation to execute any form of release, and all other SANDAGobligations to Xx. Xxxxxxxx will be automatically terminated and completely extinguished. If SANDAG terminates Xx. Xxxxxxxx' employment without cause, SANDAG shall provide Xx. Xxxxxxxx sixty (60) days advance written notice. In the Company to terminate this Agreement under Section 7.4(b); or (b) (i) upon prior written notice to event of termination without cause, Mr. Xxxxxxxxxxxx receive the Company if SeverancePayment in accordancewith subsection 7.1 at the Company Board (acting upon the recommendation end of the Special Committee), the Special Committee or any other duly authorized committee of disinterested members of the Company Board shall have effected an Adverse Recommendation Change sixty (provided that, any written notice, including pursuant to Section 5.3(d), of the Company’s intention to make an Adverse Recommendation Change in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i60) unless such written notice otherwise constitutes an Adverse Recommendation Change); provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(i) unless the day notice of termination pursuant to this Section 7.3(b)(i) is delivered by Parent to the Company within five (5) Business Days following the occurrence of the event giving rise to Parent’s right to terminate this Agreement pursuant to this Section 7.3(b)(i), (ii) if the Company shall have materially breached any of its obligations under Section 5.3, (iii) if the Company shall have failed, within ten (10) Business Days of a tender or exchange offer that constitutes a Takeover Proposal relating to securities of the Company having been commenced, to publicly recommend against such tender or exchange offer or (iv) if the Company shall have failed to publicly reaffirm its recommendation of the Offer and the Merger within ten (10) Business Days after a request to do so by Parent following the date any Takeover Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders (provided that Parent may only make such request once with respect to each Takeover Proposal and each material modification thereto)without cause period.

Termination by Xxxxxx. This Agreement may be terminated and the Merger Transactions abandoned at any time before the Acceptance Time by Parent: (a) if the Company breaches any of its representations or warranties, or fails to perform any of its covenants or agreements contained in this Agreement, and which breach or failure (i) would give rise to the failure of a condition set forth in paragraph (dSections 6.2(a), (e6.2(b) or (f6.2(c) of Annex I and (ii) by its nature cannot be cured or has not been cured by the Company by the earlier of (A) the Outside Date and (B) the date that is twenty (20) Business Days calendar days after the Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in material breach of their respective representations or warranties or materially failing to perform their respective covenants or agreements contained in this Agreement in a manner that would allow the Company to terminate this Agreement under Section 7.4(b); or (b) at any time before the receipt of the Company Stockholder Approval, (i) upon prior written notice to the Company if the Company Board (acting upon the recommendation of the Special Committee)Board, the Special Committee or any other duly authorized committee of disinterested members of the Company Board shall have effected an Adverse Recommendation Change (provided that, any written notice, including pursuant to Section 5.3(d5.3(f), of the Company’s intention to make an Adverse Recommendation Change in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i) unless such written notice otherwise constitutes an Adverse Recommendation Change)) or the Company Board has caused or permitted the Company to enter into an Acquisition Agreement with respect to a Superior Proposal or the Company enters into such Acquisition Agreement; provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(i) unless the notice of termination pursuant to this Section 7.3(b)(i) is delivered by Parent to the Company within five (5) Business Days following the occurrence of the event giving rise to Parent’s right to terminate this Agreement pursuant to this Section 7.3(b)(i), or (ii) if the Company shall have materially breached any of its obligations under Section 5.3, (iii) if the Company shall have failed, within ten (10) Business Days of a tender or exchange offer that constitutes a Takeover Proposal relating to securities of the Company having been commenced, to publicly recommend against such tender or exchange offer or (iv) if the Company shall have failed to publicly reaffirm its recommendation of the Offer and the Merger within ten (10) Business Days after a request to do so by Parent following the date any Takeover Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders (provided that Parent may only make such request once with respect to each Takeover Proposal and each material modification thereto).

Termination by Xxxxxx. This (1) Xxxxxx may, immediately upon written notice, terminate this Agreement may be terminated and the Merger Transactions abandoned at any time before the Acceptance Time by Parentif: (a) if the Company breaches any of its representations or warranties, or Reseller fails to perform pay any of its covenants or agreements contained in this Agreement, amount owed to Xxxxxx when due and which breach or such failure (i) would give rise to the failure of a condition set forth in paragraph (d), (e) or (f) of Annex I and (ii) by its nature canis not be cured or has not been cured by the Company by the earlier of (A) the Outside Date and (B) the date that is twenty (20) Business Days after the Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in material breach of their respective representations or warranties or materially failing to perform their respective covenants or agreements contained in this Agreement in a manner that would allow the Company to terminate this Agreement under Section 7.4(b); or (b) (i) upon prior written notice to the Company if the Company Board (acting upon the recommendation of the Special Committee), the Special Committee or any other duly authorized committee of disinterested members of the Company Board shall have effected an Adverse Recommendation Change (provided that, any written notice, including pursuant to Section 5.3(d), of the Company’s intention to make an Adverse Recommendation Change in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i) unless such written notice otherwise constitutes an Adverse Recommendation Change); provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(i) unless the notice of termination pursuant to this Section 7.3(b)(i) is delivered by Parent to the Company within five (5) Business Days following the occurrence days after written notice of the event giving rise such failure is given to Parent’s right Reseller by Xxxxxx; (b) Reseller fails to terminate this Agreement provide or maintain deposit or letter of credit when required to do so pursuant to this Section 7.3(b)(i), (ii) if the Company shall have materially breached any of its obligations under Section 5.3, (iii) if the Company shall have failed, Agreement and such failure is not cured within ten (10) Business Days days of a tender written notice thereof; (c) Reseller fails to abide by the terms and conditions of this Agreement or exchange offer that constitutes a Takeover Proposal relating to securities of the Company having been commenced, to publicly recommend against any other agreement with Xxxxxx and such tender or exchange offer or (iv) if the Company shall have failed to publicly reaffirm its recommendation of the Offer and the Merger failure is not cured within ten (10) Business Days after days of written notice thereof; (d) Reseller fails to meet its sales commitment in any calendar year as set out in Section 7.9. (e) Reseller provides false or misleading information to Xxxxxx in connection with any application for the Xxxxxx Services; (f) Reseller uses or permits an End User o other person to use the Xxxxxx Services or the Xxxxxx Facilities in a request manner that adversely affects Xxxxxx' operations or the use of the Xxxxxx Services by other customers; (g) Reseller initiates proceedings for its winding up, liquidation or dissolution, or takes action to do so by Parent following become a voluntary bankrupt, or consents to the date filing of bankruptcy proceedings against it or files a petition or answer or consent seeking reorganization, readjustment, arrangement, composition or similar relief under any Takeover Proposal bankruptcy law or consents to the filing of such petition or consents to the appointment of a receiver, liquidator, trustee or assignee in bankruptcy or insolvency or makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due or commits any other act of bankruptcy, or suspends transaction of its usual business, or any action is taken against Reseller by a third party in furtherance of any of the foregoing and such action by a third party is not dismissed within thirty (30) days; (h) a material modification thereto part of the assets used in the operation of Reseller's wireless resale business are sold or conveyed to a wireless carrier, reseller or dealer without the prior written consent of Xxxxxx; (i) Reseller agrees to assign, purports to assign or is first commenceddeemed to have assigned this Agreement or if an assignment occurs by operation of law, publicly announcedwithout the prior written consent of Xxxxxx; (j) a wireless carrier, distributed reseller or disseminated dealer acquires control of Reseller without the prior written consent of Xxxxxx; (k) Reseller commits or participates in an fraudulent or improper actions in the course of acting as a reseller of the Xxxxxx Service including, without limitation, the intentional submission to Xxxxxx of any false or fraudulent claims for refund, credit, rebate, allowance, discount or other payment; (l) the conviction in any court of competent jurisdiction of Reseller, key shareholders, director or officer of Reseller for any crime or violation of law if, in the opinion of Xxxxxx, such conviction is likely to adversely affect the operations or business of Reseller or tend to be harmful to the Company’s stockholders goodwill or reputation of Xxxxxx or the Xxxxxx Facilities; or (provided that Parent may only make such request once with respect m) any conduct or practice by Reseller, its directors, officers, employees or key shareholders not already enumerated above is in the reasonable opinion of Xxxxxx injurious to each Takeover Proposal and each material modification thereto)the goodwill or reputation of Xxxxxx or the Xxxxxx Facilities. (2) The termination of this Agreement or suspension of the Xxxxxx Service in whole or part does not affect Reseller's obligation to pay any amount owing to Xxxxxx.

Termination by Xxxxxx. This Agreement may be terminated and the Merger Transactions may be abandoned at any time before prior to the Acceptance Effective Time by Parentaction of the Xxxxxx Board: (a) prior to the time the Requisite L3 Vote is obtained, if: (i) after the date an Acquisition Proposal with respect to L3 was publicly announced or disclosed (or any Person shall have publicly announced an intention (whether or not conditional) to make such Acquisition Proposal) the L3 Board fails to affirm the L3 Recommendation within ten (10) Business Days after receipt of a written request from Xxxxxx to do so; or (ii) the L3 Board shall have made a Change of Recommendation; (b) if at any time prior to the Company breaches Effective Time, there has been a breach by L3 of any of its representations or representations, warranties, or fails to perform any of its covenants or agreements contained in this Agreement, and which breach or failure (i) would give rise to the failure of a condition set forth in paragraph (d), (ethis Agreement such that the conditions in Section 9.2(a) or (fSection 9.2(b) of Annex I and (ii) by its nature canwould not be cured satisfied (and such breach is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured by the Company by within the earlier of (Ai) thirty (30) days after the Outside Date and giving of notice thereof by Xxxxxx to L3 or (Bii) the date that is twenty three (203) Business Days after the Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in material breach of their respective representations or warranties or materially failing to perform their respective covenants or agreements contained in this Agreement in a manner that would allow the Company to terminate this Agreement under Section 7.4(b); or (b) (i) upon prior written notice to the Company if the Company Board (acting upon the recommendation of the Special Committee), the Special Committee or any other duly authorized committee of disinterested members of the Company Board shall have effected an Adverse Recommendation Change (provided that, any written notice, including pursuant to Section 5.3(d), of the Company’s intention to make an Adverse Recommendation Change in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i) unless such written notice otherwise constitutes an Adverse Recommendation ChangeOutside Date); provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(i) unless the notice of termination pursuant to this Section 7.3(b)(i) is delivered by Parent to the Company within five (5) Business Days following the occurrence of the event giving rise to Parent’s right to terminate this Agreement pursuant to this Section 7.3(b)(i), (ii10.3(b) shall not be available if the Company shall have materially Xxxxxx or Merger Sub has breached in any material respect any of its obligations under Section 5.3representations, (iii) if the Company warranties, covenants or agreements set forth in this Agreement in any manner that shall have failed, within ten (10) Business Days proximately contributed to the occurrence of the failure of a tender or exchange offer that constitutes a Takeover Proposal relating condition to securities the consummation of the Company having been commenced, Merger not to publicly recommend against such tender or exchange offer or (iv) if the Company shall have failed to publicly reaffirm its recommendation of the Offer and the Merger within ten (10) Business Days after a request to do so by Parent following the date any Takeover Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders (provided that Parent may only make such request once with respect to each Takeover Proposal and each material modification thereto)be satisfied.

Termination by Xxxxxx. This Agreement may be terminated and the Merger Transactions may be abandoned at any time before by Parent by giving written notice of such termination to the Acceptance Time by Parent: Company, if: (a) if at any time prior to the Closing, there has been a breach by the Company breaches of any of its representations covenant or warranties, or fails to perform any of its covenants or agreements contained agreement set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in either case, such that the conditions in Section 6.2(a) or Section 6.2(b) would not be satisfied (and which such breach or failure (i) would give rise to be true and correct is not curable prior to the failure of a condition set forth in paragraph (d)Outside Date, (e) or (f) of Annex I and (ii) by its nature cannot be cured or if curable prior to the Outside Date, has not been cured by the Company by within the earlier of (Ai) thirty (30) days after the giving of notice thereof by Parent to the Company or (ii) the Outside Date and (B) the date that is twenty (20) Business Days after the Company’s receipt of written notice of such breach from Parent, but only so long as neither Parent nor Merger Sub are then in material breach of their respective representations or warranties or materially failing to perform their respective covenants or agreements contained in this Agreement in a manner that would allow the Company to terminate this Agreement under Section 7.4(b); or (b) (i) upon prior written notice to the Company if the Company Board (acting upon the recommendation of the Special Committee), the Special Committee or any other duly authorized committee of disinterested members of the Company Board shall have effected an Adverse Recommendation Change (provided that, any written notice, including pursuant to Section 5.3(d), of the Company’s intention to make an Adverse Recommendation Change in advance of making an Adverse Recommendation Change shall not result in Parent having any termination rights pursuant to this Section 7.3(b)(i) unless such written notice otherwise constitutes an Adverse Recommendation ChangeDate); provided, however, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.3(b)(i) unless the notice of termination pursuant to this Section 7.3(b)(i) is delivered by Parent to the Company within five (5) Business Days following the occurrence of the event giving rise to Parent’s right to terminate this Agreement pursuant to this Section 7.3(b)(i), (ii7.3(a) shall not be available to Parent if the Company shall have materially it has breached in any of material respect its obligations under Section 5.3, this Agreement in any manner that shall have proximately contributed to the occurrence of the failure of a condition to the consummation of the Transactions; (iiib) if Written Consents from Company Stockholders holding a number of shares of Company Capital Stock sufficient to satisfy the Required Stockholder Approval shall not have been obtained and delivered to Parent prior to the end of the Initial Stockholder Consent Delivery Period; provided, however, that this termination right shall no longer apply and shall expire if not invoked by Parent prior to actual delivery of such Written Consents; or (c) if at any time prior to the time the Required Stockholder Approval is obtained the Company Board shall have failed, within ten (10) Business Days made a Change of a tender or exchange offer that constitutes a Takeover Proposal relating to securities of the Company having been commenced, to publicly recommend against such tender or exchange offer or (iv) if the Company shall have failed to publicly reaffirm its recommendation of the Offer and the Merger within ten (10) Business Days after a request to do so by Parent following the date any Takeover Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to the Company’s stockholders (provided that Parent may only make such request once with respect to each Takeover Proposal and each material modification thereto)Recommendation.