Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing: (a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇; (b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date. (c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party; (d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date; (e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder; (f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken); (g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation; (h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or (i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coherus BioSciences, Inc.)
Termination Events. Without prejudice to other remedies which may This Support Agreement shall terminate and, except as set forth in Section 3.2, all obligations of the Parties shall immediately terminate and be available of no further force and effect following the occurrence of any of the following events and, if applicable, the provision of any notice required hereunder (each such termination event, a “Termination Event” and the date of termination of this Support Agreement pursuant to the Parties by Law or this Agreementterms hereof, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:“Termination Date”):
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇automatically without notice upon the Effective Date;
(b) upon the termination of this Support Agreement by Seller if the waiting period under mutual written consent of each of the HSR Act has not expired or terminated by February 18Company Parties, 2025 the Required Consenting Lenders, the TL Agent and the Required Consenting Members; provided, that such notice of termination is provided within one (1) business day to each of the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.other Parties in accordance with Section 8.16;
(c) by either Seller the Company Parties or Buyer by giving written notice the Required Consenting Lenders (or, solely to the other Party if extent such material breach adversely affects the Closing shall not have occurred by eight Existing Partnership Interests, the Required Consenting Members) (8) months following such terminating Parties, the date “Terminating Parties”) upon the occurrence of any material breach of this Support Agreement by any of the other Parties (such breaching party, the “Termination DateBreaching Party”), unless extended by written agreement ) of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any undertakings, representations, warranties, warranties or covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied andthis Support Agreement, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, if such breach has not been cured within remains uncured before the earlier of (i) seven (7) business days after the Terminating Parties have given written notice of such breach to the Breaching Parties, the Company Parties, the Required Consenting Lenders, and the Consenting Members and (ii) one (1) calendar day prior to the Effective Date; provided, that the Required Consenting Lenders shall not be permitted to terminate this Support Agreement upon the occurrence of any material breach of this Support Agreement by any Consenting Lender or the TL Agent;
(d) upon the election by the Company Parties to terminate this Support Agreement in accordance with Section 8.12;
(e) immediately upon written notice by the Required Consenting Lenders or, solely with respect to Section 3.1(e)(ii)(F), by the Company Parties, upon the occurrence of any of the following, unless such Termination Event is waived or the applicable deadline is extended by the Required Consenting Lenders and, solely with respect to Section 3.1(e)(ii)(F), the Company Parties, in writing (which may be in the form of an email acknowledgment from an authorized representative thereof):
(i) at 11:59 p.m. prevailing Eastern Time on the date that is 15 business days following the RSA Effective Date, unless the Company Parties have commenced the Chapter 11 Solicitation (such actual date that the solicitation commences, the “Plan Solicitation Commencement Date”);
(ii) at 11:59 p.m. prevailing Eastern Time on the date that is 28 business days after the Plan Solicitation Commencement Date (such actual date that the solicitation ends, the “Plan Solicitation End Date”) unless the Company Parties have received Plan Approval;
(A) at 11:59 p.m. prevailing Eastern Time on the date that is 3 business days after the Plan Solicitation End Date (the “Outside Petition Date”) unless the Company Parties shall have commenced the Chapter 11 Cases (the date that the Chapter 11 Cases are commenced is referred to herein as the “Petition Date”);
(B) at 11:59 p.m. prevailing Eastern Time on the first business day that is 1 calendar days after the Petition Date unless, the Company Parties have filed (i) the Plan and (ii) the Scheduling Motion;
(C) at 11:59 p.m. prevailing Eastern Time on the first business day that is 5 calendar days after the Petition Date, unless the Bankruptcy Court shall have entered the Interim Cash Collateral Order;
(D) at 11:59 p.m. prevailing Eastern Time on the first business day that is 30 calendar days after the Petition Date, unless the Bankruptcy Court shall have entered the Final Cash Collateral Order;
(E) at 11:59 p.m. prevailing Eastern Time on the first business day that is 50 calendar days after the Petition Date, unless the Bankruptcy Court shall have entered the Confirmation Order (which order shall also approve the Disclosure Statement and any supplement to the Plan);
(F) at 11:59 p.m. prevailing Eastern Time on the first business day that is 21 calendar days following entry by the Bankruptcy Court of the Confirmation Order (such date, the “Outside Consummation Date”) if there has not occurred substantial consummation (as defined in section 1101 of the Bankruptcy Code) of the Plan on or before such date, provided, that, if, prior to the Outside Consummation Date, all conditions precedent to effectiveness of the Plan (as provided therein) have been satisfied or waived, as applicable, or, for conditions that by their nature are to be satisfied on the Effective Date, shall then be capable of being satisfied, except the Third Party Approvals have not been obtained, the Outside Consummation Date shall be automatically extended to 11:59 p.m. prevailing Eastern Time on the first business day that is 30 calendar days following such initial Outside Consummation Date, or to such other time as agreed between the Parties, provided, further, that the Required Consenting Lenders shall not have the right to terminate pursuant to this paragraph if any action of any of the Consenting Lenders or any failure to perform any obligation, representation or warranty hereunder of any of the Consenting Lenders required to be performed or be true, as applicable, at or prior to the Outside Consummation Date is the primary cause of the failure of the Effective Date to occur on or before the Outside Consummation Date (such dates set forth in clauses (i) through (ii) shall constitute the “Restructuring Timeline”);
(iii) except as provided for in this Support Agreement, upon the entry of an order by the Bankruptcy Court (A) dismissing any of the Chapter 11 Cases, (B) converting any of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (C) appointing a trustee or an examiner with expanded powers pursuant to section 1104 of the Bankruptcy Code in any of the Chapter 11 Cases, or (D) terminating or shortening exclusivity under section 1121 of the Bankruptcy Code;
(iv) the Company Parties take any of the following actions: (A) withdrawing the Plan; (B) publicly announcing their intention not to support, or otherwise withdrawing support for, the Plan; or (C) filing any plan of reorganization and/or disclosure statement that is not, within the reasonable judgment of the Required Consenting Lenders, consistent with the Restructuring Term Sheet in all material respects;
(v) if the Company Parties’ consensual use of cash collateral is terminated and remains terminated for five (5) business days;
(vi) upon the commencement of an involuntary case against any Company Party or the filing of an involuntary petition seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization or other relief in respect of the Company Parties or their debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, administrative, receivership or similar law now or hereafter in effect, provided, that such involuntary proceeding is not dismissed within a period of thirty (30) days after written notification thereof by the filing thereof, or if any court order grants the relief sought in such involuntary proceeding;
(vii) upon the Company Parties (A) voluntarily commencing any case or filing any petition seeking bankruptcy, winding up, dissolution, liquidation, administration, moratorium, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, administrative receivership or similar law now or hereafter in effect, (B) consenting to the institution of, or failing to contest in a timely and appropriate manner, any involuntary proceeding or petition described above, (C) filing an answer admitting the material allegations of a petition filed against it in any such proceeding, (D) applying for or consenting to the appointment of a receiver, administrator, administrative receiver, trustee, custodian, sequestrator, conservator or similar official for any Company Party seeking termination hereunder and for a substantial part of its assets, (iiE) making a general assignment or arrangement for the Termination Date, butbenefit of creditors or (F) taking any corporate action for the purpose of authorizing any of the foregoing, in each casecase except as provided for in this Support Agreement;
(viii) upon the amendment, only modification of, or the filing of a pleading by any of the Company Parties, without prior written consent from the Required Consenting Lenders, that seeks to amend or modify the Plan, the Disclosure Statement or any of the other Plan Documents, in a manner that is materially inconsistent with this Support Agreement;
(ix) the Bankruptcy Court grants relief that is inconsistent with this Support Agreement, the Plan or any of the other Plan Documents in any material respect (in each case with such amendments and modifications as long have been effected in accordance with the terms hereof), unless otherwise agreed in writing by the Required Consenting Lenders and the Company Parties; or
(x) except as provided for in this Support Agreement, any of the Company Parties files, proposes or otherwise supports any plan of liquidation, asset sale of all or substantially all of the Company Parties’ assets or plan of reorganization other than the Plan;
(f) by the Company Parties or the Required Consenting Lenders unless the New RCF Commitment Letter has been duly executed by the relevant parties thereto and delivered to the Parties on or prior to the Petition Date, unless such Termination Event is waived by the Company Parties and the Required Consenting Lenders in writing;
(g) upon the termination of the New RCF Commitment Letter; or
(h) by the Company Parties or the Required Consenting Lenders immediately following the occurrence of any court of competent jurisdiction or other Party continues to use its reasonable best efforts to cure such breachcompetent governmental or regulatory authority issuing a ruling or an order making illegal or otherwise restricting, preventing or prohibiting the consummation of the transactions contemplated by this Support Agreement in a way that cannot be reasonably remedied by the Company Parties; provided, that the right to no Party may terminate this Support Agreement under if such Party failed to perform or comply in all material respects with the terms and conditions of this Section 11.1(d) shall not be available to a Party whose Support Agreement, and such failure to fulfill any obligation under this Agreement has been the cause ofperform or comply caused, or resulted in, the failure occurrence of the Closing to occur on one or before such date;
(e) more acts that would otherwise permit termination by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialas are specified herein.
Appears in 1 contract
Sources: Restructuring Support Agreement (J.G. Wentworth Co)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the ClosingClosing as follows:
(a) by mutual Purchaser if any Seller, Seller Affiliate, Real Estate Owner or Principal is in material breach of any provision of this Agreement such that, in either case, the conditions set forth in Section 10.1 are not satisfied, and such breach is either (A) not capable of being cured prior to the Closing Date Deadline or (B) if curable, has not been cured or waived within the earlier of (1) fifteen (15) days after Sellers’ receipt of written consent of S▇▇▇▇▇ notice thereof from Purchaser and B▇▇▇▇(2) five (5) business days prior to the Closing Date Deadline;
(b) by Seller Sellers’ Representative if Purchaser is in material breach of any provision of this Agreement such that, in either case, the waiting period under conditions set forth in Section 10.2 are not satisfied and such breach is either (A) not capable of being cured prior to the HSR Act Closing Date Deadline or (B) if curable, has not expired been cured or terminated by February 18, 2025 waived within the earlier of (the “HSR Termination Date”), by giving 1) fifteen (15) days after Purchaser’s receipt of written notice thereof from Sellers and (2) five (5) business days prior to Buyer no later than ten (10) calendar days after the HSR Termination Date.Closing Date Deadline;
(c) by either Seller Purchaser or Buyer by giving written notice to the other Party Sellers’ Representative if the Closing shall has not have occurred by eight on or before the seventy-fifth (8) months 75th) day following the date of this Agreement Effective Date (the “Termination DateClosing Date Deadline”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving mutual, written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition consent of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing Purchaser and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateSellers’ Representative;
(e) by either Seller Purchaser or Buyer by giving written notice to the other Party Sellers’ Representative if any there shall be in effect a final, nonappealable order of a Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise having competent jurisdiction prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunderClosing;
(f) by either Purchaser in the event of (i) a Willful Breach of Section 7.3 by the Principal or any Seller or Buyer (ii) a failure by giving written notice Sellers to consummate the transactions contemplated hereby when required to do so after the applicable conditions to the other Party if the Stockholder Meeting shall Closing set forth in Article X have been held satisfied or waived (except those conditions that by their nature are to be satisfied at the Closing, and completed and which conditions would be capable of being satisfied at the Stockholder Approval shall not have been obtained by reason time of the such failure to obtain consummate the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takentransactions contemplated hereby);
(g) by either Purchaser in the event of a Willful Breach by the Principal, Seller or Buyer if Seller Affiliate of any of their respective covenants or obligations set forth in this Agreement to be performed prior to Closing (other than (i) those contained in Section 7.3 and (ii) the Seller Board shall have made a Change of Recommendation;obligation to consummate the transactions contemplated hereby when required to do so); or
(h) by Seller at any time prior Purchaser, by giving notice to the Termination Date, if Seller Sellers that it has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
elected (i) by either Seller not to close the transactions contemplated herein, even though it is otherwise contractually committed to do so, and (ii) to provide Sellers with the ▇▇▇▇▇▇▇ Money under the terms and conditions set forth in Section 8.3; provided, however, no party may terminate this Agreement pursuant to Section 8.1(a), 8.1(b) or Buyer 8.1(c) above if, in the event case of a CFIUS DenialSellers, they, Seller Affiliate or the Principal are in material breach of any of their respective covenants or Sellers’ Express Representations, or in the case of Purchaser, it is in material breach of any of its covenants, representations or warranties hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Asbury Automotive Group Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by By mutual written consent agreement of S▇▇▇▇▇ and B▇▇▇▇Atlas (on behalf of the Seller Parties);
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”)By Buyer, by giving written notice to Buyer no later than ten (10Atlas, if there has been any breach by any Seller Party of any representation, warranty, covenant or obligation set forth in this Agreement such that any condition set forth in Section 5.1(a) calendar days after the HSR Termination Date.
(cand/or Section 5.1(b) by either Seller or Buyer by giving written notice to the other Party if is incapable of being satisfied at the Closing (and such condition has not been irrevocably waived by Buyer); provided, however, that Buyer shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under pursuant to this Section 11.1(c6.1(b) shall on account of such breach if such breach, if curable, is cured prior to the earlier of (y) the expiration of 20 days following the receipt by the breaching Seller Party of written notice thereof from Buyer and (z) three Business Days preceding the Outside Date; provided, further, that Buyer will not be available entitled to terminate this Agreement pursuant to this Section 6.1(b) if Buyer has breached any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any its representations, warranties, covenants or agreements contained in this Agreement by and such Party;
(d) by either Seller or Buyer by giving written notice to breach has prevented satisfaction of any of the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice conditions set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing Section 5.1(a) and/or Section 5.1(b) and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within waived by Atlas (on behalf of the earlier Seller Parties); 57073941 ACTIVE/131483433.18 #205642 v2
(c) By ▇▇▇▇▇ (on behalf of the Seller Parties), by written notice to Buyer, if there has been any breach by Buyer of any representation, warranty, covenant or obligation set forth in this Agreement such that any condition set forth in Section 5.2(a) and/or Section 5.2(b) is incapable of being satisfied at the Closing (i) thirty and such condition has not been irrevocably waived by Atlas (30) days after written notification thereof by on behalf of the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breachSeller Parties)); provided, however, that Atlas (on behalf of the Seller Parties) shall not have the right to terminate this Agreement pursuant to this Section 6.1(c) on account of such breach if such breach, if curable, is cured prior to the earlier of (y) the expiration of 20 days following the receipt by Buyer of written notice thereof from Atlas and (z) three Business Days preceding the Outside Date; provided, further, that Atlas will not be entitled to terminate this Agreement pursuant to this Section 6.1(c) if any Seller Party has breached any of its representations, warranties, covenants or agreements contained in this Agreement and such breach has prevented satisfaction of any of the conditions set forth in Section 5.1(a) and/or Section 5.1(b) and such breach has not been waived by Buyer;
(d) By Buyer or Atlas (on behalf of the Seller Parties), by written notice to the other, if Closing has not occurred on or before the date that is 60 days following the date of this Agreement (such date or such later date as extended in accordance with this Section 6.1(d) or as may be agreed by ▇▇▇▇▇ and Atlas in writing, the “Outside Date”); provided that if all of the conditions set forth in Section 5.1 and Section 5.2 (other than those conditions that by their nature can only be satisfied at the Closing, but are capable of being satisfied at such time), other than the condition set forth in Section 5.1(f) or Section 5.2(f), are satisfied on, or have been waived prior to, the Outside Date, then the Outside Date will be automatically extended by 60 days. Notwithstanding the foregoing, no termination may be made under this Section 11.1(d6.1(d) shall not be available to a Party whose failure to fulfill any obligation under if the Willful Breach of this Agreement by the Party seeking to terminate this Agreement pursuant to this Section 6.1(d) has been prevented the cause of, or resulted in, the failure consummation of the Closing to occur on or before such date;transactions contemplated by this Agreement by the Outside Date; or
(e) By Buyer or Atlas (on behalf of the Seller Parties), by either Seller or Buyer by giving written notice to the other Party if other, if: (i) any Governmental Authority shall have Body has issued an ordera final, decree non-appealable Order that remains outstanding prohibiting the consummation of the transactions contemplated by this Agreement (unless such Order is issued due to the material breach of the Party seeking to terminate this Agreement of its obligations under this Agreement); or ruling (ii) a Law is enacted, entered, promulgated or taken any other action enforced permanently restrainingenjoining, enjoining restraining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law written notice given before or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing, be terminated:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the parties;
(b) by either Buyer or Seller at the end of the five (5) Business Day period described in paragraph (ii) below if (i) the waiting period under CP Fulfillment Date shall have failed to occur by 5 September 2012 and (ii) Buyer and Seller shall have consulted with each other regarding the HSR Act has not expired reasons for such failure within five (5) Business Days after 5 September 2012; provided, however, that if either Buyer or terminated by February 18Seller refuses to consult within such five (5) Business Day period, 2025 (the “HSR Termination Date”), by giving written notice other party shall have the right to Buyer no later than ten (10) calendar days after terminate this Agreement at the HSR Termination Date.end of such period;
(c) by either Buyer if there has been a breach of any of the Seller Warranties, the Parent Warranties or any of the covenants of Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of Parent contained in this Agreement (i) immediately upon the “Termination Date”)giving of a written notice of termination by Buyer if the breach is incapable of remedy; or (ii) if the breach is capable of remedy within thirty (30) days after written notice of the breach has been delivered to Seller or Parent (as the case may be) from Buyer and such breach has not been remedied to the satisfaction of Buyer;
(d) by Seller if there has been a breach of any of the Buyer Warranties or Buyer’s covenants contained in this Agreement, unless extended (i) immediately upon the giving of a written notice of termination by Buyer if the breach is incapable of remedy; or (ii) if the breach is capable of remedy within thirty (30) days after written agreement notice of the breach has been delivered to Buyer from Seller and Buyersuch breach has not been remedied to the satisfaction of Seller;
(e) by either Buyer or Seller if any Governmental Authority has issued a non-appealable final Judgment or taken any other non-appealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section 11.1(c8.1(e) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party party whose failure to fulfill any obligation material covenant under this Agreement has been the cause of, of or resulted in, in the failure of the Closing to occur on action or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under event described in this Section 11.1(e8.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunderoccurring;
(f) by either Buyer or Seller if it becomes manifestly evident that any of the conditions set out in Section 6.1 and Section 6.2 has no prospect of being satisfied on or Buyer by giving written notice to before the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of Outside Date, provided that the failure to obtain satisfy such condition has not resulted from any breach by the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken)terminating party of its obligations under Section 5.6;
(g) by either Seller or Buyer if the Seller Board shall have made a Change Closing has not occurred (other than through the failure of RecommendationBuyer to comply fully with its obligations under this Agreement, including Section 2.5) on or before the Outside Date;
(h) by Seller if the Closing has not occurred (other than through the failure of Seller to comply fully with its obligations under this Agreement, including Section 2.5) on or before the Outside Date;
(i) by Buyer if there has occurred a Material Adverse Effect after the Execution Date;
(j) by Buyer at any time prior to the Termination Datereceipt of the Parent Shareholder Approval, if Seller has complied (i) the Parent Board shall have effected a Change of Parent Board Recommendation (whether or not in compliance with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter 5.5), or (ii) Parent shall have entered into an Alternative Acquisition Agreement with respect Agreement;
(k) by Buyer if the Parent Shareholder Approval has not been obtained on or before the Shareholder Approval End Date;
(l) by Seller if the Buyer Shareholder Approval has not been obtained on or before one hundred and fifty (150) days from the Execution Date;
(m) by Parent, at any time prior to the receipt of the Parent Shareholder Approval, if the Parent Board determines to accept a Superior Proposal concurrently in compliance with Section 5.5(d), but only if Parent shall prior to such termination pay the termination Parent Termination Fee to or for the account of this AgreementBuyer, without any deduction or withholding whatsoever; or
(in) by either Seller Buyer if the HNR Guarantee shall for any reason cease to be valid and binding or Buyer enforceable against Parent in the event of a CFIUS Denialaccordance with its terms.
Appears in 1 contract
Sources: Share Purchase Agreement (Harvest Natural Resources, Inc.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and abandoned by mutual written consent of the transactions contemplated hereby may be abandoned Sellers and Buyers, or by written notice given at any time or prior to the ClosingFinal Closing in the manner hereinafter provided:
(a) By either Buyer if a material default or breach shall be made by mutual written consent the Sellers or the other Buyer with respect to the due and timely performance of S▇▇▇▇▇ any Sellers' or other Buyer's covenants and B▇▇▇▇agreements contained herein, and such default or breach shall not have been cured within ten Business Days after receipt by such Sellers or other Buyer of notice of such default;
(b) By the Sellers if a material default or breach shall be made by Seller if either Buyer with respect to the due and timely performance of any of such Buyer's covenants and agreements contained herein, and, subject to clause (d) below, such default or breach shall not have been waived or shall not have been cured within ten Business Days after receipt by such Buyer of notice of such default;
(c) If the Final Closing shall not have occurred on or before the earlier of (i) date 65 days after the date hereof and (ii) five Business Days following the expiration or termination of the waiting period under the HSR Act has (subject to an extension of up to an additional five Business Days by either Buyer or either Seller if consummation of the Final 120 127 Closing in such five Business Day period is not expired or terminated by February 18, 2025 (the “HSR Termination Date”practicable), or such later date as may be unanimously agreed upon by giving written notice to Buyer no later than ten the parties, by (10i) calendar days after either of the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to Sellers, unless the other Party if the Final Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such through failure of the Closing any Seller to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 comply in all material respects and with its obligations hereunder; or (ii) either of the Seller Board authorizes Seller Buyers, unless the Final Closing shall not have occurred through failure of the terminating Buyer to enter into an Alternative Acquisition comply in all material respects with its obligations hereunder. Each party's right of termination under this Section 11.1 is in addition to any other rights it may have under this Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialotherwise.
Appears in 1 contract
Sources: Asset Purchase Agreement (All American Communications Inc)
Termination Events. Without prejudice to limiting any other remedies which provision of this agreement:
(a) either party (non-defaulting party) may be available terminate this agreement by notice in writing to the Parties other party:
(i) if the Sunset Date has passed before the Transaction has been implemented (other than as a result of a breach by Law the terminating party of its obligations under this agreement);
(ii) if each of the following has occurred:
(A) the other party (defaulting party) is in breach of a material provision of this agreement (other than for breach of a representation or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned warranty in clauses 1 or 2 of Schedule 3) at any time prior to 8.00am on the Closing:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇Second Court Date;
(bB) by Seller if the waiting period under the HSR Act non-defaulting party has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written given notice to the other Party if defaulting party setting out the Closing shall not have occurred by eight (8) months following relevant circumstances of the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller breach and Buyer; provided, that the right stating an intention to terminate this Agreement under this Section 11.1(cthe agreement; and
(C) shall not be available the relevant circumstances have continued to exist five Business Days (or any Party if such failure of shorter period ending at 8.00am on the Closing to occur by Second Court Date) from the Termination Date was primarily due to time the breach or violation of any representations, warranties, covenants or agreements contained notice in this Agreement by such Partyclause 8.1(a)(ii)(B) is given;
(diii) by either Seller or Buyer by giving written notice to if the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition required majorities of such Party giving notice set forth in Article VIII CGA Shareholders do not to be satisfied and, except in approve the case of a breach of Buyer’s obligation to effect Scheme at the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateScheme Meeting;
(eiv) by either Seller if the required majority of B2Gold Shareholders do not approve the B2Gold Resolutions;
(v) if a Court or Buyer by giving written notice to the other Party if any Governmental Regulatory Authority shall have has issued an order, decree or ruling or taken any other action that permanently restraining, enjoining restrains or otherwise prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement, Transaction and such that order, decree, ruling or other action shall not be subject to appeal or shall have has become final and unappealablecannot be appealed; provided, that the right to or
(vi) in accordance with clause 3.8(b); or
(b) B2Gold may terminate this Agreement under this Section 11.1(e) shall not be available agreement by notice in writing to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;CGA if:
(fi) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Second Court Date, if Seller has complied with CGA breaches any representation or warranty in clause 1 of Schedule 3 and:
(A) the terms breach:
(I) cannot be remedied by subsequent action on the part of Section 7.3 CGA before 8.00am on the Second Court Date; and
(II) was of a kind that, had it been disclosed to B2Gold prior to its entry into this agreement, could reasonably be expected to have resulted in all material respects and the Seller Board authorizes Seller to enter B2Gold either not entering into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreementagreement or entering into it on materially different terms; or
(B) the breach amounts to, results in, or discloses anything, that could reasonably be expected to amount to a CGA Material Adverse Event;
(ii) at any time before 8:00am on the Second Court Date, a CGA Director fails to recommend the Scheme or the Transaction or makes or withdraws his recommendation that CGA Shareholders vote in favour of the Scheme or makes a public statement indicating that he or she no longer supports the Scheme;
(iii) a CGA Prescribed Occurrence occurs prior to 8:00am on the Second Court Date;
(iv) the B2Gold Reimbursement Fee Amount is payable by B2Gold and has been paid in full to CGA;
(v) at any time before 8:00am on the Second Court Date, the CGA Board recommends a Superior Offer for CGA; or
(vi) a Competing Proposal for CGA is announced, made, or becomes open for acceptance and, pursuant to that Competing Proposal for CGA, the bidder for CGA acquires voting power (within the meaning of section 610 of the Corporations Act) of 50% or more of CGA and that Competing Proposal for CGA is (or has become) free from any defeating conditions.
(c) CGA may terminate this agreement by notice in writing to B2Gold if:
(i) at any time prior to the Second Court Date, B2Gold breaches any representation or warranty in clause 2 of Schedule 3 and:
(A) the breach:
1. cannot be remedied by either Seller or Buyer in subsequent action on the event part of B2Gold before 8.00am on the Second Court Date; and
2. was of a CFIUS Denialkind that, had it been disclosed to CGA prior to its entry into this agreement, could reasonably be expected to have resulted in CGA either not entering into this agreement or entering into it on materially different terms; or
(B) the breach amounts to, results in, or discloses anything, that could reasonably be expected to amount to a B2Gold Material Adverse Event;
(ii) at any time prior to the date of the Scheme Meeting, a majority of the CGA Directors have changed, withdrawn or modified their recommendation in accordance with clause 5.6(a)(ii)(B);
(iii) a B2Gold Director fails to recommend the B2Gold Resolutions or the Transaction or makes or withdraws his recommendation that B2Gold Shareholders vote in favour of the B2Gold Resolutions or makes a public statement indicating that he or she no longer supports the B2Gold Resolutions or the Transaction;
(iv) in order to permit the CGA Board to recommend a Superior Offer; or
(v) a B2Gold Prescribed Occurrence occurs prior to 8:00am on the Second Court Date.
Appears in 1 contract
Sources: Merger Agreement (B2gold Corp)
Termination Events. Without prejudice (a) Each of the following events shall constitute a “Termination Event”:
(i) the occurrence of any Level III Trigger Event;
(ii) the occurrence of a Servicer Termination Event that has not been waived;
(iii) failure on the part of the Borrower or Servicer to other remedies which may be available pay or disburse (a) within two (2) Business Days of the date due or (ii) any amount in excess of [***] due and payable pursuant to the Parties by Law or this Agreement, this Agreement may be terminated any Transaction Document or any other material agreement to which it is a party;
(iv) default by the Borrower in the payment of (a)any interest on the Loans, which default continues for a period of two (2) Business Days after its due date;
(v) default by the Borrower in the payment of any principal on the Loans when due;
(vi) (x) the Principal Amount Outstanding of the Class A Loans is greater than the Class A Borrowing Base or (y) the Principal Amount Outstanding of the Class B Loans is greater than the Class B Borrowing Base, and in either case such excess remains unremedied for more than three (3) Business Days or, solely, with respect to a Level I Trigger Event, sixty (60) days; provided that such extended cure period shall only apply so long as the Class A Advance Rate does not exceed [***] and the transactions contemplated hereby may be abandoned at any time prior to the Closing:Class B Advance Rate does not exceed [***];
(avii) failure on the part of the Borrower or Servicer to observe or perform any of its covenants or agreements which materially and adversely affects the rights of the Lenders or the Administrative Agent set forth in any Transaction Documents to which it is a party, and such failure continues unremedied for thirty (30) calendar days after the earlier of knowledge of, or written notice to, the Borrower or Servicer of such breach;
(viii) any representation or warranty (other than the representations in Section 5.2(c)) made by mutual the Seller, the Servicer, or the Borrower under or in connection with this Agreement, any of the other Transaction Documents to which it is a party; shall prove to have been false or incorrect, and the incorrectness of such representation or warranty materially and adversely affects the rights of the Lenders or the Administrative Agent set forth in any Transaction Documents to which it is a party and shall remain unremedied for thirty (30) calendar days after the earlier of knowledge of, or written consent notice to, the Borrower or Servicer of Ssuch breach;
(ix) an Insolvency Event with respect to CPS, the Borrower, the Seller or the Servicer shall have occurred;
(x) the Borrower shall become an “investment company” or a company “controlled” by an investment company within the meaning of the Investment Company Act of 1940, be required to register as an Investment Company or shall be a “covered fund” within the meaning of the ▇▇▇▇▇▇▇ and B▇▇▇▇Rule;
(bxi) the failure by Seller if CPS to repurchase any Receivable in accordance with the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.Transaction Documents;
(cxii) by either Seller the Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any assets of the Borrower or Buyer by giving written notice to any material portion of the other Party if assets of the Closing Seller, the Servicer or CPS and such Lien shall not have occurred been released within 30 days, or the Pension Benefit Guaranty Corporation shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower, the Borrower, the Servicer or the Seller and such Lien shall not have been released within 30 days;
(xiii) the Administrative Agent or the Lenders shall fail for any reason to have a valid and perfected first priority security interest in the Receivables and the proceeds thereof, except with respect to Consumer Lender Receivables until the Perfection Date;
(xiv) a Change of Control shall occur with respect to the Borrower, CPS or any Subsidiary unless the Administrative Agent and Lender shall have expressly consented to such Change of Control;
(xv) any Transaction Documents or any Lien granted thereunder by eight the Borrower, the Servicer, the Seller, or CPS shall (8) months following except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Servicer, the Seller or CPS; or (B) the Borrower, the Servicer, the Seller or CPS or any other party shall, directly or indirectly, contest in any manner such effectiveness, validity, binding nature or enforceability of any Transaction Documents;
(xvi) the Borrower, CPS or any Specified Affiliate shall fail to pay any money due under any other agreement, note, indenture or instrument evidencing, securing, guaranteeing or otherwise relating to indebtedness of the Borrower, CPS or such Subsidiary, which failure to pay constitutes an event of default under any such agreement, note, indenture or instrument or constitutes a default thereunder and such event of default or default (i) results in the acceleration of any debt owed by the Borrower, CPS or such Subsidiary, and (ii) continues unremedied for a period of three (3) Business Days after the cure period for the related indebtedness; or the Borrower, CPS or any Subsidiary shall otherwise fail to perform or observe any term, covenant, agreement or representation and warranty under any such other agreement, note, indenture or instrument, which failure constitutes an event of default under any such agreement, note, indenture or instrument or constitutes a default thereunder and such event of default or default shall result in the acceleration of such indebtedness; or any other event under any such agreement or instrument shall occur or condition shall exist if the effect of such event or condition is to accelerate the maturity of such indebtedness; provided that, if such indebtedness is solely indebtedness of CPS or any Specified Affiliate (and not in whole or in part indebtedness of the Borrower), such accelerated indebtedness must be in an aggregate amount of at least [***] in order for an event described in this clause (xi) to constitute a Termination Event;
(xvii) any final judgment or ruling shall have been rendered against, or any settlement entered into by, CPS or any Specified Affiliate, which judgment, ruling or settlement exceeds, in the aggregate, [***] or any final judgment or ruling shall have been rendered against the Borrower; provided, in either case, that such final judgment, ruling or settlement shall have remained unpaid, and enforcement thereof shall have remained unstayed and unbonded, for a period in excess of 30 days from the date of this Agreement (entry of such judgment or ruling or the “Termination Date”), unless extended by written agreement date of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if effectiveness of such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Partysettlement;
(dxviii) by either Seller or Buyer by giving written notice to any change in the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner Servicing Guidelines and Contract Purchase Guidelines that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not be adverse to be satisfied andthe lenders, except in without the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure prior consent of the Closing to occur on or before such dateAdministrative Agent, unremedied for five (5) Business Days;
(exix) by either Seller or Buyer by giving written notice the Backup Servicer shall have resigned and a replacement backup servicer acceptable to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval Administrative Agent shall not have been obtained by reason appointed within 90 days of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which receipt of notice of such vote was taken);resignation; and
(gxx) by either Seller or Buyer if the Seller Board balance on deposit in the Reserve Account shall have made a Change of Recommendation;be less than the Required Reserve Account Balance for more than two (2) Business Days after any Remittance Date.
(hb) Upon the occurrence of any Termination Event, the Administrative Agent may, by Seller at any time prior notice to the Borrower, declare the Termination DateDate to have occurred, if Seller has complied with without demand, protest or future notice of any kind, all of which are hereby expressly waived by the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Consumer Portfolio Services, Inc.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by the mutual written consent of S▇▇▇▇▇ Purchaser and B▇▇▇▇the Seller Member;
(b) by Seller Purchaser if the waiting period under the HSR Act Closing has not expired taken place on or terminated by February 18before 5:00 p.m. (San Francisco time) on September 1, 2025 2020 (the “HSR Termination End Date”) and any condition set forth in Section 6 has not been satisfied or waived as of the time of termination (in each case other than as a result of any failure on the part of Purchaser to comply with or perform any covenant or obligation of Purchaser set forth in this Agreement), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.;
(c) by either the Seller or Buyer by giving written notice to the other Party Member if the Closing shall has not have occurred by eight taken place on or before 5:00 p.m. (8) months following San Francisco time) on the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller End Date and Buyer; provided, that the right to terminate this Agreement under this any condition set forth in Section 11.1(c) shall 7 has not be available to any Party if such failure been satisfied or waived as of the Closing to occur by the Termination Date was primarily due to the breach or violation time of termination (in each case other than as a result of any representations, warranties, covenants failure on the part of the Seller Member to comply with or agreements contained perform any covenant or obligation set forth in this Agreement by such PartyAgreement);
(d) by either Purchaser or the Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of Member if: (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such a court of competent jurisdiction or other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority Entity shall have issued an ordera final and nonappealable Order, decree or ruling or shall have taken any other action action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of transactions contemplated by this Agreement; or (ii) there shall be any of applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the transactions contemplated by this Agreement by any Governmental Entity that would make consummation of such transactions illegal;
(e) by Purchaser if: (i) any of the representations and warranties of the Seller Member contained in this Agreement shall be inaccurate as of the date of this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableinaccurate as of a date subsequent to the date of this Agreement, such that the condition set forth in Section 6.1 would not be satisfied; or (ii) any of the covenants of the Seller Member contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the right representations and warranties of the Seller Member as of a date subsequent to the date of this Agreement or a breach of a covenant by the Seller Member is curable by the Seller Member through the use of commercially reasonable efforts within ten (10) Business Days after Purchaser notifies the Seller Member in writing of the existence of such inaccuracy or breach (the “Seller Cure Period”), then Purchaser may not terminate this Agreement under this Section 11.1(e8.1(e) shall as a result of such inaccuracy or breach prior to the expiration of the Seller Cure Period, provided the Seller Member, during the Seller Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that Purchaser may not be available terminate this Agreement pursuant to any Party this Section 8.1(e) with respect to such inaccuracy or breach if such order, decree, ruling inaccuracy or other Proceeding was caused by or resulted from breach is cured prior to the failure expiration of such Party to perform any of its obligations hereunder;the Seller Cure Period); or
(f) by either the Seller Member if: (i) any of Purchaser’s representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or Buyer by giving written notice shall have become inaccurate as of a date subsequent to the other Party date of this Agreement, such that the condition set forth in Section 7.1 would not be satisfied; or (ii) if the Stockholder Meeting any of Purchaser’s covenants contained in this Agreement shall have been held breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Purchaser’s representations and completed and warranties as of a date subsequent to the Stockholder Approval shall not have been obtained date of this Agreement or a breach of a covenant by reason Purchaser is curable by Purchaser through the use of commercially reasonable efforts within ten (10) Business Days after the Seller Member notifies Purchaser in writing of the failure to obtain existence of such inaccuracy or breach (the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken“Purchaser Cure Period”);
(g) by either Seller or Buyer if , then the Seller Board shall have made Member may not terminate this Agreement under this Section 8.1(f) as a Change result of Recommendation;
(h) by Seller at any time such inaccuracy or breach prior to the Termination Dateexpiration of the Purchaser Cure Period, if Seller has complied with provided Purchaser, during the terms of Section 7.3 in all material respects and Purchaser Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Seller Board authorizes Seller Member may not terminate this Agreement pursuant to enter into an Alternative Acquisition Agreement this Section 8.1(f) with respect to a Superior Proposal concurrently with such inaccuracy or breach if such inaccuracy or breach is cured prior to the termination expiration of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialPurchaser Cure Period).
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ the Buyer and B▇▇▇▇the Seller;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to from the Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party Seller, if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party there has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of been a breach of Buyer’s obligation to effect any representation, warranty, covenant or agreement by the Closing and pay Seller, or any such representation or warranty shall become untrue after the Closing Cash Consideration in accordance with date hereof, or the terms occurrence of Article VIIIa materially adverse event capable of rendering the current transaction ineffective, such that the conditions in Section 6.1 and Section 6.2 would not be satisfied and such breach has is not been curable or, if curable, is not cured within the earlier of (i) thirty fifteen (3015) days after written notification notice thereof is given by the Party seeking termination hereunder Buyer to the Seller and (ii) the Termination Expiration Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(ec) by either Seller or Buyer by giving written notice from the Seller to the other Party Buyer, if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation there has been a breach of any of representation, warranty, covenant or agreement by the transactions contemplated by this AgreementBuyer or Parent, or any such representation or warranty shall become untrue after the date hereof, such that the conditions in Section 6.1 and Section 6.2 would not be satisfied and such orderbreach is not curable or, decreeif curable, ruling or other action shall is not be subject cured within the earlier of (i) fifteen (15) days after written notice thereof is given by the Seller to appeal or shall have become final the Buyer and unappealable; provided, that (ii) the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunderExpiration Date;
(fd) by either Seller or Buyer by giving written notice by the Seller to the other Party if Buyer or the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination DateSeller, if Seller has complied with as the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer case may be, in the event the Closing has not occurred on or prior to November 21, 2023 (the “Expiration Date”) for any reason other than delay or nonperformance of a CFIUS Denialor breach by the party to this Agreement seeking such termination.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law written notice given before or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing, be terminated:
(a) by mutual written consent of S▇▇▇▇▇ the Purchaser and B▇▇▇▇the Sellers;
(b) by Seller the Purchaser (so long as the Purchaser is not then in material breach of any of its representations, warranties or covenants contained in this Agreement) if there has been a breach of any of the waiting period under Sellers’ representations, warranties or covenants contained in this Agreement, which would result in the HSR Act failure of a condition set forth in Section 6.1(a) or Section 6.1(b), and which breach has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving been cured within 30 days after written notice of the breach has been delivered to Buyer no later than ten (10) calendar days after the HSR Termination Date.Sellers from the Purchaser;
(c) by either Seller the Sellers (so long as the Sellers are not then in material breach of any of its representations, warranties or Buyer by giving covenants contained in this Agreement) if there has been a breach of any of the Purchaser’s representations, warranties or covenants contained in this Agreement, which would result in the failure of a condition set forth in Section 6.2(a) or Section 6.2(b), and which breach has not been cured within 30 days after written notice of the breach has been delivered to the Purchaser from the Sellers;
(d) by either the Purchaser or the Sellers if any Governmental Authority has issued a nonappealable final Judgment or taken any other Party if nonappealable final action, in each case having the Closing shall not have occurred effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and BuyerAgreement; provided, however, that the right to terminate this Agreement under this Section 11.1(c7.1(d) shall will not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party party whose failure to fulfill any obligation covenant under this Agreement Agreement, including the obligations of the Purchaser under Section 5.3, has been the cause of, of or resulted in, in the failure of the Closing to occur on action or before such date;event described in this Section 7.1(d) occurring; or
(e) by either Seller the Sellers or Buyer by giving written notice to the Purchaser if the Closing has not occurred (other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from than through the failure of such Party to perform any of comply fully with its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of under this Agreement; or
(i) by either Seller on or Buyer in the event of a CFIUS Denialbefore August 31, 2012.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Natus Medical Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) If (i) all of any Related Premises shall be taken by mutual written consent a Taking or (ii) any substantial portion of S▇▇▇▇▇ any Related Premises shall be taken by a Taking or all or any substantial portion of any Related Premises shall be totally damaged or destroyed by a Casualty and, in any such case, Tenant certifies and B▇▇▇▇;
covenants to Landlord that it will forever abandon operations at the Related Premises, (bany one or all of the Related Premises described in the above clauses (i) by Seller if and (ii) above being hereinafter referred to as the waiting period under "Affected Premises" and each of the HSR Act has not expired or terminated by February 18, 2025 events described in the above clauses (the “HSR i) and (ii) shall hereinafter be referred to as a "Termination Date”24 Event"), by giving written notice to Buyer no later than ten then (10x) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) above, Tenant shall be obligated, within thirty (30) days after written notification thereof by Tenant receives a Condemnation Notice and (y) in the Party seeking termination hereunder and case of (ii) above, Tenant shall have the option, within thirty (30) days after Tenant receives a Condemnation Notice or thirty (30) days after the Casualty, as the case may be, to give to Landlord written notice (a "Termination Notice") of the Tenant's option (A) to terminate this Lease as to the Affected Premises in the form described in Paragraph 18(b).
(b) A Termination Notice shall contain (i) notice of Tenant's intention to terminate this Lease as to the Affected Premises on the first Basic Rent Payment Date which occurs at least ninety (90) days after the Fair Market Value Date (the "Termination Date"), (ii) a binding and irrevocable offer of Tenant to pay the Termination Amount and (iii) if the Termination Event is an event described in Paragraph 18(a)(ii), the certification and covenant described therein and a certified resolution of the Board of Directors of Tenant authorizing the same. Promptly upon the delivery to Landlord of a Termination Notice, Landlord and Tenant shall commence to determine Fair Market Value.
(c) If Landlord shall reject such offer to terminate this Lease as to the Affected Premises by written notice to Tenant (a "Rejection"), which Rejection shall contain the written consent of Lender, not later than thirty (30) days following the Fair Market Value Date, then this Lease shall terminate as to the Affected Premises on the Termination Date; provided that, but, in each case, only as long as such if Tenant has not satisfied all Monetary Obligations and all other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement obligations and liabilities under this Section 11.1(dLease which have arisen as to the Affected Premises (collectively, "Remaining Obligations") shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with then Landlord may, at its option, extend the terms of Section 7.3 in all material respects and date on which this Lease may terminate as to the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect Affected Premises to a Superior Proposal concurrently date which is no later than the first Basic Rent Payment Date after the Termination Date on which Tenant has satisfied all Remaining Obligations. Upon such termination (i) all obligations of Tenant hereunder as to the Affected Premises shall terminate except for any Surviving Obligations, (ii) Tenant shall immediately vacate and shall have no further right, title or interest in or to any of the Affected Premises and (iii) the Net Award shall be retained by Landlord. Notwithstanding anything to the contrary hereinabove contained, if Tenant shall have received a Rejection and, on the date when this Lease would otherwise terminate as provided above, Landlord shall not have received the full amount of the Net Award payable by reason of the applicable Termination Event, then the date on which this Lease is to terminate automatically shall be extended to the first Basic Rent Payment Date after the receipt by Landlord of the full amount of the Net Award provided that, if Tenant has not satisfied all Remaining Obligations on such date, then Landlord may, at its option, extend the date on which this Lease may terminate to a date which is no later than the first Basic Rent Payment Date after such date on which Tenant has satisfied all such Remaining Obligations.
(d) Unless Tenant shall have received a Rejection not later than the thirtieth (30th) day following the Fair Market Value Date, Landlord shall be conclusively presumed to have accepted such offer. If such offer is accepted by Landlord then, on the Termination Date, Tenant shall pay to Landlord the Termination Amount and all Remaining Obligations and, if requested by Tenant, Landlord shall convey to Tenant or its designee the Affected Premises or the remaining portion thereof, if any, all in accordance with Paragraph 20.
(e) In the event of the termination of this AgreementLease as to the Affected Premises as hereinabove provided, this Lease shall remain in full force and effect as to the Remaining Premises; or
(i) provided, that the Basic Rent for the Remaining Premises to be paid after such termination shall be the Basic Rent otherwise payable hereunder with respect to the Leased Premises multiplied by either Seller or Buyer in a percentage equal to the event sum of a CFIUS Denialthe percentages set forth on Exhibit "F" for the Remaining Premises.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Termination Events. Without prejudice By written notice given prior to other remedies which may be available or at the Closing, subject to the Parties by Law or this AgreementSection 8.2, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by mutual written consent of S▇▇▇▇▇ the Evolent Entities and B▇▇▇▇Valence Parent;
(b) by Seller if the waiting period under Evolent Entities, in the HSR Act event that (i) the Requisite Stockholder Approval has not expired been delivered within 48 hours of the execution of this Agreement, or terminated by February 18, 2025 (ii) any of the “HSR Termination Date”), by giving written notice other conditions to Buyer no later the closing obligations of the Evolent Entities set forth in Section 7.1 (other than ten (10with respect to Section 7.1(k) calendar days after the HSR Termination Date.
to which subsection (c) below applies) have not otherwise been satisfied by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement December 31, 2016 (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, ) (provided that the right Evolent Entities are not then in material breach of this Agreement);
(c) by the Evolent Entities, in the event that the designated condition to terminate this Agreement under this the closing obligations of the Evolent Entities set forth on Section 11.1(c7.1(k) of the Disclosure Schedule shall not be available to have been satisfied by September 1, 2016;
(d) by Valence Parent, in the event that any Party if such failure of the Closing conditions to occur the closing obligations of Valence Parent set forth in Section 7.2 have not been satisfied by the Termination Date was primarily due to (provided that neither Valence Parent nor the Securityholders’ Representative is then in material breach of this Agreement);
(e) by either Valence Parent or violation the Evolent Entities, if a court or Governmental Authority shall have issued an Order or taken any other action that is final and non-appealable and that restrains, enjoins or otherwise prohibits the transactions contemplated hereby;
(f) by the Evolent Entities, if none of the Evolent Entities is in material breach of their obligations under this Agreement, and if there shall have been a material breach by any Valence Entity of any of its representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice that a condition to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other closing obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice the Evolent Entities set forth in Article VIII Section 7.1 would not to be satisfied andsatisfied, except in the case of a which breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach (if curable) has not been cured within the earlier of (i) thirty (30) days after written notification notice thereof by the Party seeking termination hereunder and Evolent to Valence Parent or (ii) any shorter period of time that remains between the date such written notice is provided and the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);or
(g) by either Seller or Buyer Valence Parent, if the Seller Board Valence Parent is not in material breach of its obligations under this Agreement, and if there shall have made been a Change material breach by any Evolent Entity of Recommendation;
any of its representations, warranties, covenants or agreements contained in this Agreement such that any of the conditions to the closing obligations of Valence Parent set forth in Section 7.2 would not be satisfied, which breach (hif curable) has not been cured within (i) thirty (30) days after written notice thereof by Seller at Valence Parent to the Evolent Entities or (ii) any shorter period of time prior to that remains between the date such written notice is provided and the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time prior to the Closingabandoned:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the Parties;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18after July 14, 2025 2022 (the “HSR Termination Outside Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer any Party by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following on or prior to the date of this Agreement (the “Termination Outside Date”), unless extended by written agreement of Seller and Buyer; provided, however, that if, on the Termination Date, the conditions to the Closing set forth in (i) Section 7.1(a) (solely to the extent any such Order is in respect of an Antitrust Law), (ii) Section 7.1(b) or (iii) Section 7.2(c) (solely to the extent relating to the failure of a condition in respect of an Antitrust Law) shall not have been fulfilled but all other conditions to the Closing set forth in Article 7 have been waived or fulfilled (other than those conditions that by their terms cannot be satisfied prior to the Closing, but which conditions would be satisfied if the Closing occurred on such date), then the Outside Date shall automatically, without any action on the part of the parties hereto, be extended to January 14, 2023; provided that the right to terminate this Agreement under this Section 11.1(c10.1(b) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill perform any obligation of its obligations under this Agreement has been was the primary cause of, or resulted in, of the failure of the Closing to occur on or before such date;
(ec) by either Seller or Buyer Party by giving written notice to the other Party Party, if any a Governmental Authority of competent jurisdiction shall have issued an order, decree or ruling a nonappealable final Order or taken any other action nonappealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation Purchase Transaction on the Closing Date (provided that neither Party shall have the right to terminate this Agreement pursuant to this Section 10.1(c) if such Party’s failure to perform its obligations under this Agreement was the primary cause of such Order);
(d) by Seller by notice to Buyer, if there has been a breach of any representation or warranty set forth in Article 5, or a breach or failure to perform any covenant or agreement on the part of the transactions contemplated by Buyer set forth in this Agreement, which breach or failure to perform (i) would cause the conditions set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied and (ii) shall not have been cured within 20 Business Days (or by the Outside Date, if earlier) following receipt by Buyer of written notice of such orderbreach or failure to perform from Seller (provided, decree, ruling or other action that the failure to deliver the full consideration payable pursuant to Article 8 at the Closing as required hereunder shall not be subject to appeal or shall have become final and unappealablecure hereunder unless otherwise agreed to in writing by Seller); provided, that the right to terminate this Agreement under pursuant to this Section 11.1(e10.1(d) shall will not be available to Seller if Seller is then in breach of any Party representations, warranties, covenants or agreements contained in this Agreement such that any condition set forth in Section 7.3(a) or Section 7.3(b) is incapable of being satisfied;
(e) by Buyer by notice to Seller, if such order, decree, ruling there has been a breach of or other Proceeding was caused by or resulted from the failure of such Party to perform any representation or warranty set forth in Article 4, or a breach or failure to perform any covenant or agreement on the part of its obligations hereunderSeller set forth in this Agreement, which breach or failure to perform (i) would cause the conditions set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied and (ii) shall not have been cured within 20 Business Days (or by the Outside Date, if earlier) following receipt by Seller of written notice of such breach or failure to perform from Buyer; provided, that the right to terminate this Agreement pursuant to this Section 10.1(e) will not be available to Buyer if Buyer is then in breach of any representations, warranties, covenants or agreements contained in this Agreement such that any condition set forth in Section 7.2(a) or Section 7.2(b) is incapable of being satisfied;
(f) by Seller, if (i) Buyer shall have failed to consummate the Purchase Transaction within two Business Days after the date on which the Closing should have occurred pursuant to Section 8.1, (ii) all the conditions set forth in Section 7.1 and Section 7.3 would have been satisfied if the Closing were to have occurred at such time (other than those conditions that by their terms are to be satisfied by actions taken at the Closing provided such conditions would have been capable of being satisfied as of such date if the Closing were to occur), and (iii) Seller shall have given written notice to Buyer at least two Business Days prior to the termination of this Agreement pursuant to this Section 10.1(f) (which notice may be given on the date the Closing should have occurred) that Seller stands ready, willing and able to consummate the Purchase Transaction (subject to the satisfaction or waiver of all of the conditions set forth in Section 7.2); or
(g) by either Seller or Buyer Party by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Ali Merger Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialis terminated.
Appears in 1 contract
Sources: Purchase Agreement (PENTAIR PLC)
Termination Events. Without prejudice to other remedies which may This Agreement may, by written notice given before or at the Completion, be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingterminated:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the Parties;
(b) by the Purchaser if there has been a breach of any of the Seller Warranties or the Parent Warranties or of any of the covenants of the Seller or the Parent contained in this Agreement (i) immediately upon the giving of a written notice of termination by the Purchaser if the waiting period under breach is incapable of remedy; or (ii) if the HSR Act breach is capable of remedy within thirty (30) days after written notice of the breach has been delivered to the Seller or the Parent (as the case may be) from the Purchaser and such breach has not expired or terminated by February 18, 2025 (been remedied to the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after satisfaction of the HSR Termination Date.Purchaser;
(c) by either the Seller if there has been a breach of any of the Purchaser Warranties or Buyer by the Purchaser’s covenants contained in this Agreement, (i) immediately upon the giving of a written notice of termination by the Seller if the breach is incapable of remedy; or (ii) if the breach is capable of remedy within thirty (30) days after written notice of the breach has been delivered to the other Party if Purchaser from the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyersuch breach has not been remedied to the satisfaction of the Seller;
(d) by either the Purchaser or the Seller if any Governmental Authority has issued a non-appealable final judgment or taken any other non-appealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement under this Section 11.1(cclause 7.1(d) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill fulfil any obligation material covenant under this Agreement has been the cause of, of or resulted in, in the failure of the Closing to occur on action or before such dateevent described in this clause 7.1(d) occurring;
(e) by either Seller or Buyer by giving written notice to the other Party Purchaser if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of it becomes manifestly evident that any of the transactions contemplated by this AgreementMutual Conditions has no prospect of being satisfied on or before the Longstop Date, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, provided that the right failure to terminate this Agreement under this Section 11.1(e) shall satisfy the Mutual Conditions did not be available to result from any Party if such order, decree, ruling or other Proceeding was caused breach by or resulted from the failure of such Party to perform any Purchaser of its obligations hereunderunder this Agreement;
(f) by either the Seller if it becomes manifestly evident that any of the Mutual Conditions has no prospect of being satisfied on or before the Longstop Date, provided that the failure to satisfy the Mutual Conditions did not result from any breach by the Seller or Buyer the Parent of its obligations under this Agreement;
(g) by giving written notice the Purchaser if it becomes manifestly evident that any of the Purchaser Conditions has no prospect of being satisfied on or before the Longstop Date, provided that the failure to satisfy such condition has not resulted from any breach by the other Party Purchaser of its obligations under this Agreement;
(h) by the Seller if it becomes manifestly evident that any of the Seller Conditions has no prospect of being satisfied on or before the Longstop Date, provided that the failure to satisfy such condition has not resulted from any breach by the Seller or the Parent of its obligations under this Agreement;
(i) by either Purchaser or Seller if the Stockholder Parent Shareholder Meeting shall have been held convened and completed and a vote with respect to the Stockholder Approval adoption by the shareholders of Parent of a resolution authorizing the transactions contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting thereat (or any adjournment or postponement thereof at which such vote was taken)thereof) and the Parent Shareholder Approval shall not have been obtained;
(gj) by either Purchaser or Seller or Buyer if the Seller Parent Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied Parent Board Recommendation in accordance with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreementclause 4.11(e); or
(ik) by either Purchaser or Seller if Completion has not occurred (for whatever reason) by the Longstop Date, regardless of whether such Party is in breach. The termination shall take effect from the date of the relevant notice, unless prior to that termination date, all of the Conditions have been fulfilled or Buyer in the event of a CFIUS Denialwaived.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Harvest Natural Resources, Inc.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual either Purchaser or the Company if the Closing has not occurred on or before December 31, 2017 (the “Outside Date”) on the Business Day following delivery of written consent notice thereof to the other parties hereto; provided, that neither Purchaser nor the Company shall be entitled to terminate this Agreement pursuant to this Section 9.1(a) if such Person’s willful breach of S▇▇▇▇▇ this Agreement has prevented the consummation of the Transactions as of such date; provided, further that either the Purchaser or the Company may at its election provide that the Outside Date shall be extended until January 14, 2018 by sending written notice to the other party on or after the Outside Date, and B▇▇▇▇such extension shall supersede any notice sent by the other party to terminate this Agreement on the same date;
(b) by Seller if mutual written consent of the waiting period under Company and the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.Purchaser;
(c) by either the Purchaser or the Company if a Governmental Entity shall have (i) issued a non-appealable final judgment, order, writ, injunction, decree, stipulation, ruling, decision, verdict, determination, agreement or award (“Order”), or (ii) enacted, enforced or deemed applicable to the Transactions a Law in final form, in each case having the effect of permanently restraining, enjoining, prohibiting or making illegal the consummation of the Transactions (provided, however, that the Party seeking to terminate pursuant to this Section 9.1(c) shall have used commercially reasonable efforts to have any such Order or other action vacated or lifted and shall not be in breach in any material respect of any of its obligations hereunder);
(d) by the Purchaser: (i) upon a breach of any representation, warranty, covenant or agreement of the Company set forth in this Agreement such that the conditions set forth in Section 7.2(a), Section 7.2(b), Section 7.2(c) or Section 7.2(d) would not be satisfied (a “Seller or Buyer by giving Terminating Breach”); provided, however, that if such Seller Terminating Breach is curable prior to the expiration of thirty (30) days from the date of written notice to the other Party if Company of its occurrence through the Closing shall exercise of the Company’s commercially reasonable efforts, and for so long as the Company continues to exercise such commercially reasonable efforts, the Purchaser may not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c9.1(d) until the expiration of such thirty (30) day period without such Seller Terminating Breach having been cured (but in no event shall the preceding proviso be deemed to extend the Outside Date (as such may be extended pursuant to Section 9.1(a)) set forth in Section 9.1(a)); or (ii) if satisfaction of any of the conditions set forth in Section 7.2 is or becomes impossible (other than through the failure of the Purchaser to comply with its obligations under this Agreement); provided, further, that the Purchaser shall not be available entitled to terminate this Agreement pursuant to this clause Section 9.1(d) at any Party if such failure time during which the Purchaser would be unable to satisfy the conditions in Section 7.3(a) or Section 7.3(b) hereof; or
(e) by the Company: (i) upon a breach of any representation, warranty, covenant or agreement of the Closing to occur by the Termination Date was primarily due to the breach Purchaser or violation of any representations, warranties, covenants or agreements contained Merger Sub set forth in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to that the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice conditions set forth in Article VIII Section 7.3(a) or Section 7.3(b) would not to be satisfied and(a “Purchaser Terminating Breach”); provided, except in however, that if such Purchaser Terminating Breach is curable prior to the case expiration of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after from the date of written notification thereof by notice to the Party seeking termination hereunder Purchaser of its occurrence through the exercise of the Purchaser’s commercially reasonable efforts, and (ii) the Termination Date, but, in each case, only as for so long as such other Party the Purchaser continues to use its exercise such commercially reasonable best efforts to cure such breach; providedefforts, that the right to Company may not terminate this Agreement under this Section 11.1(d9.1(e) until the expiration of such thirty (30) day period without such Purchaser Terminating Breach having been cured (but in no event shall not the preceding proviso be available deemed to a Party whose failure extend the Outside Date (as such may be extended pursuant to fulfill Section 9.1(a)) set forth in Section 9.1(a)); or (ii) if satisfaction of any obligation under this Agreement has been of the cause of, conditions set forth in Section 7.3 is or resulted in, becomes impossible (other than through the failure of the Company to comply with its obligations under this Agreement); provided, further, that the Company shall not be entitled to terminate this Agreement pursuant to this Section 9.1(e) at any time during which the Company would be unable to satisfy the conditions in Section 7.2(a), Section 7.2(b), Section 7.2(c) and Section 7.2(d) hereof.
(f) by the Company, if prior to the Outside Date (i) the conditions set forth in Sections 7.1 and 7.2 have been satisfied as of such date (other than those conditions that by their nature are to be satisfied at the Closing to occur on or before that would be satisfied at a Closing as of such date;
) or have been waived in writing by the Purchaser, (eii) by either Seller or Buyer by giving written notice the Company is ready, willing and able to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of consummate the transactions contemplated by this AgreementAgreement at the Closing and has irrevocably certified thereto in writing to the Purchaser, and such order, decree, ruling or other action shall not be subject (iii) the Purchaser fails to appeal or shall complete the Closing within three (3) Business Days following the date the Closing should have become final and unappealable; provided, that the right occurred pursuant to terminate this Agreement under this Section 11.1(e) shall not be available 1.7 due to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party by the Debt Financing Source to perform fund for any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to reason the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialDebt Financing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Diplomat Pharmacy, Inc.)
Termination Events. Without prejudice to other remedies which may ------------------ be available to the Parties parties by Law law or under this Agreement, this Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time prior to the Closingabandoned:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the parties hereto;
(b) by Seller Buyers or Sellers, if any of the waiting period conditions set forth in Section 6.1 shall have become incapable of fulfillment, and shall not have been waived in writing by the party seeking to terminate this Agreement under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”this Section 10.1(b), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.;
(c) by either Seller Buyers if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been waived in writing by Buyers;
(d) by Buyers or Buyer Sellers, by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”)been consummated on or before November 21, 2001, unless extended by written agreement of Seller and Buyerthe parties hereto; provided, however, that the -------- ------- right to terminate this Agreement under this Section 11.1(c10.1(d) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representationsparty that (i) has not used, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with Section 5.2, reasonable efforts to consummate and make effective the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof transactions contemplated by the Party seeking termination hereunder and this Agreement or (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate has breached this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateAgreement;
(e) by either Seller or Buyer by giving written notice to Buyers, if all of the other Party if any Governmental Authority conditions set forth in Section 6 shall have issued an orderbeen satisfied, decree or ruling or taken any other action permanently restrainingBuyers shall be ready, enjoining or otherwise prohibiting willing and able to complete the consummation of any of the transactions contemplated by this AgreementClosing, and such order, decree, ruling or other action Sellers shall not be subject have made the deliveries required by Section 7.3 on or before ten (10) days following the date designated for Closing pursuant to appeal or shall have become final and unappealableSection 7.1; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;and
(f) by either Seller or Buyer by giving written notice to Sellers, if all of the other Party if the Stockholder Meeting conditions set forth in Section 6 shall have been held satisfied, Sellers shall be ready, willing and completed able to complete the Closing, and the Stockholder Approval Buyers shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall 76 have made a Change of Recommendation;
the deliveries required by Section 7.2 on or before ten (h10) by Seller at any time prior days following the date designated for the Closing pursuant to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial7.1.
Appears in 1 contract
Termination Events. Without prejudice Each of the following events shall constitute a Termination Event (whether any such event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to other remedies which may be available to the Parties by Law or this Agreementin compliance with any judgment, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at decree or order any time prior to the Closing:court or any order, rule or regulation of any Governmental Authorit
(a) the Lessee Parties shall fail to make any payment of (i) Casualty Value, Termination Value, EBO Price, Accrued Basic Rent or any Make-Whole Premium Amount payable concurrently therewith pursuant to t terms hereof when due, (ii) Basic Rent when due and such failure shall continue unremedied for a period of five (5) days after the date due a (iii) Supplemental Rent (other than in respect of Casualty Value, Termination Value, EBO Price or Make Whole Premium Amount or, unless otherwise elected in writing by mutual written consent the Owner Participant, payments under the Tax Indemnity Agreement) for a period of S▇▇▇▇▇ and B▇▇▇▇;ten (10) Business Days after the due date; or
(b) by Seller if either Lessee Party or CIROR, as the waiting period under the HSR Act has not expired case may be, shall fail to perform or terminated by February 18observe any covenant, 2025 condition or agreement s forth in Section 5.1 (the “HSR Termination Date”Liens), by giving written notice to Buyer no later than ten Article IX (10Return of Equipment), Section 13.1 (Lessee Assignments) calendar days after and Article XXII (Insurance) hereof and Sections 5.4(g) and 5.5(g) of the HSR Termination DateParticipation Agreement (Merger, Consolidation, etc.,); or
(c) either Lessee Party or CIROR, as the case may be, shall fail t perform or observe any other covenant, condition or agreement to be performed or observed by either Seller it under any of the Operative Documents (othe than any such covenant, condition or Buyer by giving written notice agreement in the Tax Indemnity Agreement unless the Owner Participant shall so elect in writing) to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller which it is a party and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure shall continue unremedied for a period of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
thirty (d30) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within days after the earlier of (i) the date the appropriate Lessee Party or CIROR, as the case may be, has actual knowledge of such failure or (ii) notice thereof shall have been given to the appropriate Lessee Party or CIROR, as the case may be, by eithe the Lessor, or, so long as the Indenture shall be in effect, the Indenture Trustee; provided, however, that the continuation of any suc failure (other than a failure curable by payment of money) for a perio longer than such thirty (30) day period shall not constitute a Termination Event if (i) such default is curable but cannot be cured within such thirty (30) day period and (ii) the Lessee, the Co-Lessee CIROR, as the case may be, is diligently pursuing the cure of such default; provided further, however, that any such failure (other than a failure curable by payment of money) shall constitute a Termination Eve if such failure is not cured within the earlier of the last day of the applicable Lease Term and ninety (90) days from the earlier of (i) the date the appropriate Lessee Party or CIROR, as the case may be, has actual knowledge of such failure or (ii) the date notice thereof has been given to the appropriate Lessee Party or CIROR, as the case may b or
(d) any representation or warranty made by either Lessee Party or CIROR, as the case may be, in any of the Operative Documents (other th any such representation and warranty contained in the Tax Indemnity Agreement) or in any statement, report, schedule, notice or other writing furnished by either Lessee Party or CIROR, as the case may be, in connection therewith shall prove to have been false or incorrect in any material respect at the time made or given and remains a misrepresentation or breach of warranty which is adverse to the Lessor Parties at the time discovered; provided, however, that no such misrepresentation or breach of warranty shall constitute a Termination Event if (i) such misrepresentation or breach of warranty is curable an (ii) the Lessee, the Co-Lessee or CIROR, as the case may be, is diligently pursuing the cure of such misrepresentation or breach of warranty within thirty (30) days after written notification such Person has received notice thereof by and upon such cure the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) original misrepresentation shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;remain material and adverse; or
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this AgreementLessee, and such orderthe Co-Lessee, decreeCIROR or ATOR (i) shall commence a voluntary Insolvency Proceeding, ruling (ii) shall seek the appointment of a trustee, receiver, liquidator, sequestrator, custodian or other action shall not be subject to appeal similar official of the Lessee, the Co-Lessee, CIROR or shall have become final and unappealable; providedATOR, that the right to terminate this Agreement under this Section 11.1(eor any substantial part of such Person=s property, (iii) shall not be available acquies in or consent to any Party if such orderrelief or to the appointment of or taking possession by any such official in an involuntary Insolvency Proceedin commenced against it, decree(iv) shall make a general assignment for the benefit of creditors, ruling or other Proceeding was caused by or resulted from the failure of such Party (v) shall fail generally to perform any of pay its obligations hereunder;undispute debts as they become due; or
(f) by either Seller an involuntary Insolvency Proceeding shall be commenced agains the Lessee, the Co-Lessee, CIROR or Buyer by giving written notice ATOR seeking liquidation, reorganization or other relief with respect to such Person or its debt under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidato assignee, sequestrator, custodian or other Party if the Stockholder Meeting similar official of it or a substantial part of its property, and such involuntary case or other proceeding shall have been held and completed and the Stockholder Approval shall not have been obtained by reason remain undismissed or unstayed for a period of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting ninety (or any adjournment or postponement thereof at which such vote was taken);90) consecutive days; or
(g) the Guaranty shall for any reason become invalid, not binding unenforceable or repudiated in any manner by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;Guarantor thereunder) or
(h) the Lessee's or Co-Lessee's default under or failure to comply with any term or provision of any other lease agreement, participation agreement or any other agreement or undertaking in connection with a lease financing (not including any such financing provided by Seller any Affiliate of Lessee or Lucent other than Cirrus) relating to equipment located at the Orlando Facility as a result of which the lessor thereunder or any time prior assignee of such lessor would have the right to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreementexercise remedies thereunder; or
(i) by (i) the Lessee shall be dissolved or terminated or (ii) the Co-Lessee, CIROR, ATOR or Lucent shall determine to dissolve the Lesse or (iii) either Seller Co-Lessee or Buyer Lucent shall not continue, directly or indirectly, to maintain its respective interest in the event of a CFIUS DenialLessee or the respective partners thereof.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time notice given prior to or at the Closing, be terminated:
(a) by mutual Target upon written consent notice in the event of S▇▇▇▇▇ a material breach of any representation or warranty of Buyer or Buyer Parent contained in this Agreement or any covenant or agreement to be performed or complied with by Buyer or Buyer Parent pursuant to the terms of this Agreement, which breach of a representation, warranty or covenant has continued without cure until the earlier of (A) ten (10) business days following notice thereof by Target to Buyer Parent and (B▇▇▇▇) immediately prior to Closing;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18Buyer Parent, 2025 (the “HSR Termination Date”), by giving upon written notice in the event of a material breach of any representation or warranty of Target contained in this Agreement or any covenant or agreement to Buyer no later than be performed or complied with by the Sellers pursuant to the terms of this Agreement, which breach of a representation, warranty or covenant has continued without cure until the earlier of (A) ten (10) calendar business days after following notice thereof by Buyer Parent to Target and (B) immediately prior to Closing, except where the HSR Termination Date.failure of such representation and warranty to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) would not, individually or in the aggregate, result in a Material Adverse Effect of Target;
(c) by Buyer Parent if a Material Adverse Effect on Target shall have occurred;
(d) by mutual consent of Buyer Parent and Target;
(e) by either Seller Buyer Parent or Target, if any Governmental Body shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and non-appealable;
(f) by Buyer, if any of Stockholders’ Representative, Target, or any of their respective Representatives or Affiliates, shall participate in discussions or negotiations or furnish information in breach of Section 5.6; or
(g) by either Buyer by giving written notice to the other Party Parent or Target, if the Closing shall has not have occurred by eight (8) months following on or before 120 days from the date of this Agreement (or such later date as the “Termination Date”), unless extended by written agreement of Seller and BuyerParties may agree upon; provided, that the right to terminate this Agreement under this Section 11.1(c9.1(g) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations(or, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation termination by Target, to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (iany Seller) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby by this Agreement may be abandoned at any time prior to the ClosingClosing Conditions Satisfaction Date:
(a) by mutual written consent of S▇▇▇▇▇ the Sellers and B▇▇▇▇the Buyers;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice a Party to the other Party if the Closing shall Conditions Satisfaction Date has not have occurred (other than through the fault of the Party seeking to terminate this Agreement) by eight (8) months following the date of Longstop Date; provided that the Buyers may not terminate this Agreement (pursuant to this clause 12.1(b) if the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the Sellers exercise their right to terminate this Agreement under this pursuant to Section 11.1(c12.1(e).
(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to Buyers or the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except Sellers in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of event that (i) thirty (30) days after written notification thereof there shall be any Law that makes consummation of the transactions contemplated by the Party seeking termination hereunder and this Agreement illegal or otherwise prohibited or (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority Body shall have issued an order, decree a Governmental Order restraining or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or Governmental Order shall have become final and unappealable; provided, non-appealable.
(d) by a Party that the right to terminate is not itself in material breach of any provision of this Agreement under if there has been a breach, inaccuracy or failure to perform any representation, warranty, covenant or agreement made by the other Parties pursuant to this Section 11.1(e) shall not be available Agreement that would give rise to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;the conditions specified in clause 11 and such breach, inaccuracy or failure is incapable of remedy or, if capable of remedy, is not remedied by the Party in breach within the earlier of (i) ten (10) Business Days after written notice thereof, and (ii) the Longstop Date.
(e) by the Buyers or the Sellers if (i) all of the conditions set forth in clause 11.1 and 11.2 (except for clause 11.2(f)) have been and remain satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but which are capable of being satisfied at the Closing), (ii) the Sellers have irrevocably confirmed in writing to the Buyers that they are all prepared to and stand ready, willing and able to consummate the Closing and that all of the closing conditions set forth in clause 11.3 have been satisfied or irrevocably waived and (iii) the Buyers fail to effect the Closing.
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination DateBuyers, if Seller has complied with more than 3 Vessels cannot be delivered during the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller expected window for Closing pursuant to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialClause 13.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Vessels, Charter Parties and Other Assets (Tidewater Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this (a) This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(ai) by mutual written consent of S▇▇▇▇▇ the Purchaser, the Company and B▇▇▇▇the Stockholders’ Representative;
(bii) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after from the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice Purchaser to the other Party Company and the Stockholders’ Representative, if there has been a breach of any representation, warranty, covenant or agreement by the Closing Company or the Stockholders, or any such representation or warranty shall not have occurred by eight (8) months following become untrue after the date of this Agreement (the “Termination Date”)Agreement, unless extended by written agreement of Seller and Buyer; provided, such that the right to terminate this Agreement under this conditions in Section 11.1(c) shall 5.1 or Section 5.2 would not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has is not been curable or, if curable, is not cured within the earlier of (iA) thirty twenty (3021) days after written notification notice thereof is given by the Party seeking termination hereunder Purchaser to the Company and the Stockholders’ Representative, and (iiB) the Termination Expiration Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(eiii) by either Seller or Buyer by giving written notice from the Stockholders’ Representative to the other Party Purchaser, if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation there has been a breach of any representation, warranty, covenant or agreement by the Purchaser, or any such representation or warranty shall become untrue after the date of the transactions contemplated by this Agreement, such that the conditions in Section 5.1 or Section 5.3 would not be satisfied and such orderbreach is not curable or, decreeif curable, ruling or other action shall is not be subject to appeal or shall have become final and unappealable; provided, that cured within the right to terminate this Agreement under this Section 11.1(eearlier of (A) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
ten (f10) by either Seller or Buyer by giving days after written notice thereof is given by the Stockholders’ Representative to the other Party if Purchaser, and (B) the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Expiration Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(iiv) by either Seller five (5) days’ prior written notice by the Stockholders’ Representative to the Purchaser or Buyer the Purchaser to the Company and the Stockholders’ Representative, as the case may be, in the event the Closing has not occurred on or prior to December 31, 2017 (the “Expiration Date”) for any reason other than delay or nonperformance of or breach by the party seeking such termination; provided that the parties may mutually agree, in writing, to extend the Expiration Date.
(b) In the event of termination of this Agreement pursuant to this ARTICLE VIII, this Agreement shall forthwith become void and there shall be no liability on the part of any party to this Agreement or its partners, officers, directors, stockholders, members or other equity holders, except for obligations under Section 4.7 (Confidentiality), Section 10.3 (Fees and Expenses), Section 10.4 (Waiver; Amendment), Section 10.5 (Entire Agreement), Section 10.6 (Execution of Agreement; Counterparts; Electronic Signatures), Section 10.7 (Governing Law; Venue), Section 10.8 (Attorneys’ Fees), Section 10.9 (Assignment and Successors), Section 10.11 (Notices), Section 10.12 (Severability), Section 10.13 (Schedules and Exhibits) and this Section and the definitions used in each of the foregoing sections, including those set forth in Exhibit 1 hereto, all of which shall survive such termination and the Termination Date. In addition, within two (2) days of the termination date, the Company shall return the Purchaser the loan amount provided to the Company by Purchaser, in a CFIUS Denialprincipal amount of US $96,295together with any accrued interest. Notwithstanding the foregoing, nothing contained in this Agreement shall relieve any party from liability for any breach of this Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available Anything contained in this Agreement to the Parties by Law or this Agreementcontrary notwithstanding, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the ClosingClosing Date:
(a) by mutual written consent of S▇▇▇▇▇ the Parent and B▇▇▇▇the Purchaser Owner;
(b) by Seller if either the waiting period under Parent or the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”)Purchaser Owner, by giving written notice of such termination to Buyer no later than ten (10) calendar days after the HSR Termination Date.other, if a Governmental Entity of competent jurisdiction shall have enacted, enforced or entered any Law or a final and non-appealable Order shall be in effect that prohibits the consummation of the Closing; provided, that the party hereto seeking to terminate this Agreement shall have used reasonable best efforts to have any such Law declared invalid or inapplicable or Order vacated;
(c) by either Seller the Parent or Buyer the Purchaser Owner, by giving written notice of such termination to the other Party other, if the Closing shall not have occurred by eight (8) months following prior to the date of this Agreement that is one hundred twenty (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c120) shall not be available to any Party if such failure days after entry of the Closing to occur by the Termination Date was primarily due Sale Order and as of such date all conditions to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice Closing set forth in Article VIII not VI shall have been satisfied or waived or shall be capable of being satisfied at the Closing (but subject to be satisfied andthe satisfaction or waiver at or prior to the Closing of all such conditions), except for Section 6.1(b) or, solely in respect of the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIIIHSR Act, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination DateSection 6.1(c), but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, unless the failure of the Closing to occur on prior to such date results from the failure of the party hereto seeking to terminate this Agreement to materially perform any of its obligations under this Agreement required to be performed by it at or before prior to the Closing;
(d) by the Purchaser Owner in the event of (i) any breach by the Sellers of any of their covenants, representations or warranties contained in this Agreement, which breach would (if occurring or continuing as of the Closing) give rise to the failure of a condition to the Closing set forth in Section 6.3, or (ii) any material breach by the Sellers of the Bidding Procedures Order or the Sale Order, and in either case, the failure of the Sellers to cure such datebreach within fourteen (14) days after receipt of the Purchaser Termination Notice; provided, that (A) neither of the Purchaser Parties is itself in material breach of its covenants, representations or warranties contained in this Agreement or the provisions of the Bidding Procedures Order or the Sale Order, (B) the Purchaser Owner notifies the Sellers in writing (the “Purchaser Termination Notice”) of its intention to exercise its rights under this Agreement as a result of the breach and (C) the Purchaser Owner specifies in such Purchaser Termination Notice the covenant, representation or warranty contained in this Agreement or the provision of the Bidding Procedures Order or the Sale Order of which the Sellers are allegedly in breach;
(e) by either Seller or Buyer the Parent in the event of (i) any breach by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation Purchaser Parties of any of the transactions contemplated by their covenants, representations or warranties contained in this Agreement, which breach would (if occurring or continuing as of the Closing) give rise to the failure of a condition to the Closing set forth in Section 6.2, or (ii) any material breach by the Purchaser Parties of the Bidding Procedures Order or the Sale Order, and in either case, the failure of the Purchaser Parties to cure such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealablebreach within fourteen (14) days after receipt of the Seller Termination Notice; provided, that (A) the right to terminate Sellers are not themselves in material breach of their covenants, representations or warranties contained in this Agreement or the provisions of the Bidding Procedures Order or the Sale Order, (B) the Parent notifies the Purchaser Owner in writing (the “Seller Termination Notice”) of its intention to exercise its rights under this Section 11.1(eAgreement as a result of the breach and (C) shall not be available to any Party if the Parent specifies in such orderSeller Termination Notice the covenant, decree, ruling representation or other Proceeding was caused by warranty contained in this Agreement or resulted from the failure provision of such Party to perform any the Bidding Procedures Order or the Sale Order of its obligations hereunderwhich the Purchaser Parties are allegedly in breach;
(f) by either Seller the Purchaser Owner or Buyer the Parent, by giving written notice of such termination to the other Party other, if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason Sellers consummate any transaction (i) in which a material portion of the failure Business or the Acquired Assets are to obtain be sold, transferred or otherwise disposed of and (ii) that the required vote upon a final vote taken at Bankruptcy Court has finally approved in an Order as “superior” in accordance with the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken)Bidding Procedures Order, to the Acquisition;
(g) by either Seller the Purchaser Owner, in the event that the Bankruptcy Court enters an order with respect to the Motion to Approve the Bidding Procedures and Sale denying approval of the Break-Up Fee or Buyer if Expense Reimbursement Amount (which order was not consented to by the Seller Board shall have made Purchaser Parties) and such order has become a Change Final Order, by providing written notice of Recommendation;such termination within two (2) days of the Bankruptcy Court’s entry of the order; or
(h) by Seller at any time prior the Parent, by giving written notice of such termination to the Termination DatePurchaser Owner, if Seller a Lender has complied with the terms of Section 7.3 in all material respects withdrawn or terminated its Commitment Letter and the Seller Board authorizes Seller to enter Purchaser Parties have not entered into an Alternative Acquisition Agreement a commitment letter with respect to a Superior Proposal concurrently replacement Debt Financing in accordance with the termination of this Agreement; or
Section 5.18(b) within ten (i10) by either Seller Business Days following such withdrawal or Buyer in the event of a CFIUS Denialtermination.
Appears in 1 contract
Sources: Acquisition Agreement (Savient Pharmaceuticals Inc)
Termination Events. Without prejudice If any of the following events (each, a “Termination Event”) shall occur (regardless of the reason therefor):
(i) the Borrower shall fail to pay, (A) any installment or other remedies which may be available payment of principal of any Advance when due, or to repay Advances to reduce their balance to the Parties by Law maximum amount of Revolving Loans then permitted to be outstanding when due or this Agreement(B) within three (3) Business Days after the due date, any interest on any Advances, any other Borrower Obligations or any other amount due under this Agreement may be terminated and or any of the transactions contemplated hereby may be abandoned at other Related Documents or (ii) any time prior Transaction Party shall fail to pay, within three (3) Business Days after the Closing:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
(b) by Seller if the waiting period due date, any amount due under the HSR Act has not expired Sale Agreement or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to any of the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and BuyerRelated Documents; provided, that the right to terminate this Agreement under this Section 11.1(c) no Termination Event shall not be available to any Party occur if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, pay arises solely as a result of the failure of the Closing Administrative Agent to occur make transfers of amounts available in the Agent Account on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Settlement Date in accordance with Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement2.08; or
(i) the Borrower or any Transaction Party shall fail or neglect to perform, keep or observe any requirement set forth in Section 5.01(c) or Section 5.03 of this Agreement or Section 4.02(l) or Section 4.03 of the Sale Agreement, (ii) the Borrower or any Transaction Party shall fail or neglect to perform, keep or observe any requirement set forth in Section 5.02 of this Agreement and the same shall remain unremedied for five (5) Business Days after the date specified for performance of any such requirement or (iii) the Borrower or any Transaction Party shall fail or neglect to perform, keep or observe any other covenant or other provision of this Agreement or the other Related Documents (other than any provision embodied in or covered by either Seller any other clause of this Section 8.01) and the same shall remain unremedied for thirty (30) Business Days or Buyer more following the earlier to occur of an Authorized Officer of the Borrower or the applicable Transaction Party becoming aware of such breach and the Borrower’s receipt of notice thereof; or
(1) any Transaction Party or the Borrower shall fail to pay when due or within any applicable grace period any principal or interest on Debt (other than the Advances with respect to the Borrower) or any Contingent Obligations or (2) a breach or default of any Transaction Party or the Borrower, or the occurrence of any condition or event, with respect to any Debt (other than the Advances with respect to the Borrower) or any Contingent Obligations, in each case if the event effect of such breach, default or occurrence is to cause or to permit the holder or holders then to cause, Debt and/or Contingent Obligations having an aggregate principal amount in excess of $5,000,000 to become or be declared due prior to their stated maturity; or
(1) A court enters a decree or order for relief with respect to any Transaction Party in an involuntary case under the Bankruptcy Code, which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law; or (2) the continuance of any of the following events for sixty (60) days unless dismissed, bonded or discharged: (a) an involuntary case is commenced against any Transaction Party under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; or (b) a decree or order of a CFIUS Denial.court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian, administrator or other officer having similar powers over any Transaction Party or over all or a substantial part of its property, is entered; or (c) a receiver, trustee or other custodian is appointed without the consent of a Transaction Party for, or an encumbrance takes possession of, all or a substantial part of the property of such Transaction Party; or
(ii) a case or proceeding shall have been commenced against the Borrower seeking a decree or order in respect of the Borrower under the Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, (i) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for the Borrower or for any substantial part of the Borrower’s assets, or (ii) ordering the winding up or liquidation of the affairs of any such Person;
(1) Any Transaction Party or the Borrower commences a voluntary case under the Bankruptcy Code, or consents to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such law or consents to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or (2) any Transaction Party or the Borrower makes any assignment for the benefit of creditors; or (3) the board of directors (or equivalent thereof) or the shareholders (or equivalent thereof) of any Transaction Party or the Borrower adopts any resolution or otherwise authorizes action in connection with the administration, liquidation, winding-up or dissolution of such Transaction Party or the Borrower or to approve any of the actions referred to in this Section 8.01(e);
(i) any Originator, the Borrower or the Servicer generally does not pay its debts as such debts become due (within the meaning of Section 303(h) of the Bankruptcy Code of the United States), (ii) any Authorized Officer of any Originator, the Borrower or the Servicer admits in writing its inability to, or is generally unable to, pay its debts as such debts become due or (iii) any Originator, the Borrower or the Servicer is not Solvent; or
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Vertis Inc)
Termination Events. Without prejudice to other remedies which may be available Notwithstanding anything to the Parties by Law or contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be Acquisition abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ Seller and B▇▇▇▇Buyer;
(b) by Seller if (i) any of the waiting period under conditions set forth in Section 4.3 shall have become incapable of fulfillment and shall not have been waived by Seller, (ii) 45 days have elapsed since the HSR Act has not expired or terminated receipt by February 18, 2025 (the “HSR Termination Date”), by giving Buyer of a written notice to Buyer no later than ten from Seller of such incapability and (10iii) calendar days after the HSR Termination Date.within such 45 day period such condition shall not have become capable of fulfillment;
(c) by either Seller or Buyer by giving written notice to if (i) any of the other Party if the Closing conditions set forth in Section 4.2 shall have become incapable of fulfillment and shall not have occurred been waived by eight Buyer, (8) months following ii) 45 days have elapsed since the date receipt by Seller of this Agreement a written notice from Buyer of such incapability and (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(ciii) within such 45 day period such condition shall not be available to any Party if such failure have become capable of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Partyfulfillment;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty the Closing has not occurred (30) days after written notification thereof by other than through the Party failure of any party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement to comply fully with its obligations under this Section 11.1(dAgreement) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before November 18, 2014, or such datelater date as the parties may agree upon in writing or (ii) there shall be a final and nonappealable Order permanently restraining or prohibiting the consummation of the transaction contemplated hereby;
(e) by either Seller, if (i) the Marketing Period has ended and all of the conditions set forth in Section 4.1 and Section 4.2 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, provided that such conditions are capable of being satisfied at the Closing), (ii) Seller or Buyer by giving has provided written notice to Buyer that Seller is ready, willing and able to consummate the other Party if any Governmental Authority shall have issued an order, decree Closing (subject to the satisfaction or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation waiver of any all of the transactions contemplated by this Agreementconditions set forth in Section 4.1 and Section 4.3), and such order, decree, ruling or other action shall not be subject (iii) Buyer fails to appeal or shall consummate the Closing within three Business Days following the date on which the Closing should have become final and unappealableoccurred pursuant to Section 3.1; provided, that the right to terminate any termination of this Agreement under by Buyer pursuant to Section 11.1(d)(i) shall be deemed a termination pursuant to this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with time of such termination the terms conditions of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
clauses (i) by either Seller or Buyer in the event and (ii) of a CFIUS Denialthis Section 11.1(e) have been satisfied.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:Closing (whether before or after the approval of the sale of the Transferred Assets to the Purchaser by the Seller’s stockholders):
(a) by the mutual written consent of S▇▇▇▇▇ the Purchaser and B▇▇▇▇the Seller.;
(b) by either the Purchaser or the Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”)November 30, unless extended by written agreement of Seller and Buyer2003; provided, that the right however, that: (i) a party shall not be permitted to terminate this Agreement under pursuant to this Section 11.1(c8.1(b) shall not be available to any Party if such the failure of the Closing to occur have occurred by November 30, 2003 is attributable to a failure on the Termination Date was primarily due part of such party to the breach or violation of perform any representations, warranties, covenants or agreements contained covenant in this Agreement required to be performed by such Partyparty at or prior to the Closing; and (ii) the Seller shall not be permitted to terminate this Agreement pursuant to this Section 8.1(b) unless the Seller shall have made any payment required to be made to the Purchaser pursuant to Section 8.3;
(c) by either the Purchaser or the Seller if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting any of the Transactions;
(d) by either the Purchaser or the Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of if: (i) thirty the Stockholders’ Meeting (30including any adjournments and postponements thereof) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval Seller’s stockholders shall have taken a final vote on a proposal to approve the sale of the Transferred Assets to the Purchaser; and (ii) the sale of the Transferred Assets to the Purchaser shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken approved at the Stockholder Stockholders’ Meeting (or and shall not have been approved at any adjournment or postponement thereof thereof) by the Required Stockholder Vote; provided, however, that the Seller shall not be permitted to terminate this Agreement pursuant to this Section 8.1(d) unless the Seller shall have made the payment required to be made to the Purchaser pursuant to Section 8.3;
(e) by the Purchaser (at which any time prior to the approval of the sale of the Transferred Assets to the Purchaser by the Required Stockholder Vote) if a Triggering Event shall have occurred;
(f) by the Purchaser if any of the Seller’s representations and warranties contained in this Agreement shall have been inaccurate as of the date of this Agreement or shall have become inaccurate as of any subsequent date (as if made on such vote was takensubsequent date), in either case such that the condition set forth in Section 6.1 would not be satisfied, or if any of the Seller’s covenants contained in this Agreement shall have been breached in any respect such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Seller as of a date subsequent to the date of this Agreement or a breach of a covenant by the Seller is curable by the Seller through the use of commercially reasonable efforts within 30 calendar days after the Purchaser notifies the Seller in writing of the existence of such inaccuracy or breach (the “Seller Cure Period”), then the Purchaser may not terminate this Agreement under this Section 8.1(f) as a result of such inaccuracy or breach prior to the expiration of the Seller Cure Period, provided the Seller, during the Seller Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Purchaser may not terminate this Agreement pursuant to this Section 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Seller Cure Period);
(g) by either Seller or Buyer if the Seller Board if any of the Purchaser’s representations and warranties contained in this Agreement shall have been inaccurate as of the date of this Agreement or shall have become inaccurate as of any subsequent date (as if made on such subsequent date), in either case such that the condition set forth in Section 7.1 would not be satisfied, or if any of the Purchaser’s covenants contained in this Agreement shall have been breached in any respect such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of the representations and warranties of the Purchaser as of a Change date subsequent to the date of Recommendation;this Agreement or a breach of a covenant by the Purchaser is curable by the Purchaser through the use of commercially reasonable efforts within 30 calendar days after the Seller notifies the Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Seller may not terminate this Agreement under this Section 8.1(g) as a result of such inaccuracy or breach prior to the expiration of the Purchaser Cure Period, provided the Purchaser, during the Purchaser Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Seller may not terminate this Agreement pursuant to this Section 8.1(g) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Purchaser Cure Period); or
(h) by Seller at any time prior to the Termination DateSeller, if the Seller has complied with the terms of Section 7.3 in all material respects and shall have withheld, withdrawn, amended or modified the Seller Board authorizes Recommendation in a manner permitted by Section 4.5(c); provided, however, that the Seller shall not be permitted to enter into an Alternative Acquisition terminate this Agreement with respect pursuant to a Superior Proposal concurrently with the termination of this Agreement; or
Section 8.1(h) if: (i) during the five business day period referred to in Section 4.5(c) (as such period may be extended by either the Seller or Buyer in its discretion), the Seller shall not have negotiated in good faith with the Purchaser to make adjustments in the event terms and conditions of this Agreement such that this Agreement as so adjusted provides the Seller with a CFIUS Denialtransaction that is at least as favorable as the Superior Offer; (ii) during the period referred to in clause “(i)” of this sentence, the Purchaser agrees to make adjustments in the terms and conditions of this Agreement such that this Agreement as so adjusted provides the Seller with a transaction that is at least as favorable as the Superior Offer; or (iii) the Seller shall not have made the payment required to be made to the Purchaser pursuant to Section 8.3.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available Notwithstanding anything to the Parties by Law or contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual the written consent of S▇▇▇▇▇ ABB and B▇▇▇▇Purchaser;
(b) by Seller if the waiting period under the HSR Act has not expired either ABB or terminated by February 18Purchaser, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred been consummated by eight (8) months following the date of this Agreement (the “Termination Date”)July 31, unless extended by written agreement of Seller and Buyer2004; provided, however, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
clause (d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(db) shall not be available to a Party party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(c) by ABB, if Purchaser in any material respect shall have breached or failed to perform or comply with any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform or comply: (i) would give rise to the failure of a condition set forth in Section 8.3; and (ii) has not been, or is incapable of being, cured by Purchaser within 30 days of Purchaser’s receipt of written notice thereof from ABB;
(d) by Purchaser, if ABB in any material respect shall have breached or failed to perform or comply with any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform or comply: (i) would give rise to the failure of a condition set forth in Section 8.2; and (ii) has not been, or is incapable of being, cured by ABB within 30 days of ABB’s receipt of written notice thereof from Purchaser;
(e) by either Seller Purchaser, if there has occurred any change in, or Buyer by giving written notice effect on, the Acquired Group which (i) would give rise to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any the condition set forth in Section 8.2(f); and (ii) has not been, or is incapable of its obligations hereunderbeing, cured by ABB within 30 days of ABB’s receipt of written notice thereof from Purchaser;
(f) by either Seller or Buyer Purchaser, if any proceeding is instituted by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting ABB (or any adjournment parent company of ABB), or postponement thereof at which ABB (or such vote was takenparent company) publicly announces an intention to institute such a proceeding, to adjudicate any of them bankrupt or insolvent, or seeking liquidation, winding up or reorganization arrangements, or adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization (but excluding, for the avoidance of doubt, the merger contemplated by Schedule 11.6 of this Agreement);; and
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination DateABB, if Seller has complied with the terms any proceeding is instituted by Purchaser (or any parent company of Section 7.3 in all material respects and the Seller Board authorizes Seller Purchaser), or Purchaser (or such parent company) publicly announces an intention to enter into an Alternative Acquisition Agreement with respect institute such a proceeding, to a Superior Proposal concurrently with the termination adjudicate any of this Agreement; or
(i) by either Seller them bankrupt or Buyer in the event insolvent, or seeking liquidation, winding up or reorganization arrangement, adjustment, protection, relief or composition of a CFIUS Denialits debts under any Law relating to bankruptcy, insolvency or reorganization.
Appears in 1 contract
Sources: Purchase Agreement (Abb LTD)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated in the following events and in the transactions contemplated hereby may be abandoned at any time prior to the Closingmanner specified hereunder:
(a) by mutual written consent in the event that the Affected Party is rendered wholly or partially unable to perform its obligations under this Agreement because of S▇▇▇▇▇ a Force Majeure Event and B▇▇▇▇;
such inability to perform lasts for not less than a total of 90 (bninety) by Seller if days in any continuous period of 180 (one hundred eighty) days, and in the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to considered assessment of the other Party if (“Non-Affected Party”) there is no reasonable likelihood of the Closing Force Majeure Event coming to an end in the near future, the Non- Affected Party shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving at least 90 (ninety) days prior written notice to the other Affected Party if of its intention to so terminate this Agreement. In such other Party has breached its representationsan event, warrantiesthe termination shall take effect on expiry of the notice period or 90 (ninety) days whichever is later and the Parties shall be absolved of all rights/obligations under this Agreement, covenants, agreements or other obligations hereunder in a manner save those that would reasonably be expected to cause any condition had already accrued as on the effective date of such Party giving notice set forth in Article VIII not to be satisfied and, except termination of the Agreement;
(b) in the case of a breach of Buyer’s obligation event that the Purchaser is prevented /disabled under Applicable Law from using the Coal delivered to effect it under this Agreement, for reasons beyond its control, owing to changes in applicable environmental and/or statutory norms, howsoever brought into force, the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that Purchaser shall have the right to terminate this Agreement under this Section 11.1(dby giving a prior written notice of not less than 30 (thirty) shall not be available days to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateSeller;
(ec) by either in the event of any material change in the Coal distribution system of the Seller due to Applicable Laws or Buyer by giving a Government directive/ notification at any time after the Signature Date, the Seller shall within 7 (seven) days of introduction of such change provide a written notice to the Purchaser calling for a joint review of this Agreement. If the Parties are unable to arrive at a mutually agreed position with respect to the subject matter of review, within a period of 30 (thirty) days from the date of the above mentioned notice, the Seller shall have the right to terminate the Agreement subject to a further written notice of 30 (thirty) days being given in writing to the other Party if without any Governmental Authority obligation/liability whatsoever;
(d) subject to Clause5.2, in the event that the Purchaser resells or diverts the Coal purchased under this Agreement to any Third Party, the Seller shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under after giving the Purchaser a due opportunity of being heard on the matter;
(e) in the event of invocation of the Performance Security or suspension of Coal supplies pursuant to Clause 14, the Seller shall have the right to terminate this Section 11.1(eAgreement by providing prior written notice of 30 (thirty) shall days to the Purchaser; provided that the Purchaser has not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from replenished the failure Performance Security within the aforesaid said notice period of such Party to perform any of its obligations hereunder30 (thirty) days;
(f) by in the event that either Seller Party suffersinsolvency, appointment of a liquidator (provisional or Buyer by giving written notice to final), appointment of a receiver of any of its material assets, levy of any order of attachment of its material assets, or any order or injunction restraining the Party from dealing with or disposing of its assets and such order after having been passed is not vacated within 60 (sixty) days, the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained be entitled to terminate this Agreement by reason giving prior written notice of the failure 30 (thirty) days to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken)first Party;
(g) in the event that any Party (“Defaulting Party”) commits a breach of any covenant, term or condition of this Agreement not otherwise specified under this Clause 17.2or of any term or provision of the Scheme Document and such breach, if curable, is not cured by either Seller or Buyer if the Seller Board Defaulting Party to the satisfaction of the other Party (“Non-Defaulting Party”) within a period of 90 (ninety) days of receipt of a notice in this regard from the Non-Defaulting Party, then the Non-Defaulting Party shall have made a Change the right to terminate this Agreement forthwith on expiry of Recommendationthe said 90 (ninety) day period;
(h) in the event that the information contained in any of the documents and/ or undertakings provided by Seller at any time prior the Purchaser to the Termination DateSeller and/ or to SCCL under this Agreement and/ or the Scheme Document (including information or documentation provided pursuant to the provisions of clauses3.4 and 3.5.4of the Scheme Document) ceases to be true and correct or is found to be misleading, if Seller has complied with the terms of Section 7.3 in all material respects and untrue or incorrect, then the Seller Board authorizes Seller shall have the right to enter into an Alternative Acquisition terminate this Agreement with respect by giving prior written notice of 30 (thirty) days to a Superior Proposal concurrently with the termination of this Agreement; orPurchaser;
(i) by either Seller or Buyer subject to Clause 15, in the event that the Purchaser (or the new entity formed as a result of change in Control of the Purchaser) or the relevant transferee ceases to comply with any of the Eligibility Conditions or any other conditions specified herein, then the Seller shall have the right to terminate this Agreement by giving prior written notice of 30 (thirty) days to the Purchaser;
(j) in the event that the Specified End Use Plant ceases to remain operational for a CFIUS Denialcontinuous period of 12 (twelve) months or is shut down for any reason, the Seller shall have the right to terminate this Agreement by giving prior written notice of 30 (thirty) days to the Purchaser;
(k) post expiry of the Lock-in Period, the Purchaser shall be entitled to terminate this Agreement for any reason whatsoever, by giving a prior written notice of 3 (three) months to the Seller; and/ or
(l) pursuant to Clause2.3, Clause 4.3.1, Clause 4.4 and Clause 15.3.
Appears in 1 contract
Sources: E Fuel Supply Agreement
Termination Events. Without prejudice to other remedies which may be available This Agreement may, by written notice given to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time non-terminating Party prior to the Closing, be terminated:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
(bi) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18Buyer, 2025 (the “HSR Termination Date”), by giving upon prior written notice to Seller, if there has been a material breach or failure to perform by Seller of any covenant, representation or warranty contained in this Agreement which has prevented the satisfaction of any condition to the obligations of Buyer no later than ten (10) calendar at the Closing and such breach or failure to perform has not been waived by Buyer or cured by Seller within thirty days after the HSR Termination Date.
written notice thereof from Buyer or (cii) by either Seller or Buyer by giving Seller, upon prior written notice to Buyer, if there has been a material breach or failure to perform by Buyer of any covenant, representation or warranty contained in this Agreement which would prevent the other Party if satisfaction of any condition to the obligations of Seller at the Closing shall and such breach or failure to perform has not have occurred been waived by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended Seller or cured by Buyer within thirty days after written agreement of Seller and Buyernotice thereof from Seller; provided, however, that the right to terminate this Agreement under this Section 11.1(c10.1(a) shall not be available to any Party if such failure Party shall have breached or failed to perform in any material respect any of the Closing to occur by the Termination Date was primarily due to the breach or violation of any its respective representations, warranties, covenants or other agreements contained in this Agreement by Agreement, and such Party;breach or failure to perform would give rise to a failure of a condition in Article VII to the obligations of the other Party at the Closing.
(db) by either Buyer or Seller if the Closing shall not have occurred on or Buyer by giving written notice before May 15, 2014 (the “Outside Date”); provided, however, that if on the Outside Date the conditions to Closing set forth in Section 7.1(a) or Section 7.1(b) (to the extent any such injunction or Order is in respect of an antitrust Law) shall not have been fulfilled, but all other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected conditions to cause any condition of such Party giving notice Closing set forth in Article VIII not VII shall be or shall be capable of being fulfilled, then Seller, by written notice delivered to be satisfied andBuyer, except in or Buyer, by written notice to Seller, may extend the case Outside Date to no later than the close of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIIIbusiness on August 13, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach2014; provided, further, that the right to terminate this Agreement under this Section 11.1(d10.1(b) shall not be available to a any Party whose failure to fulfill perform any material covenant or obligation under this Agreement has been the cause of, or has resulted in, the failure of the Closing Transactions to occur on or before such date;
(ec) by either Buyer or Seller if an injunction or Order issued by any Governmental Body of competent authority permanently restrains or prohibits any of the Transactions and such injunction or Order becomes final and nonappealable); or
(d) by mutual written consent of Buyer by giving and Seller. The Party desiring to terminate this Agreement pursuant to any of clause (a), (b) or (c) of this Section 10.1 shall give written notice of such termination to the other Party if any Governmental Authority shall have issued an order, decree in accordance with Section 11.5 specifying the provision or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject provisions hereof pursuant to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialis effected.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Tire Distributors Holdings, Inc.)
Termination Events. Without prejudice to other remedies which may be available Notwithstanding anything to the Parties by Law or contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual the written consent of S▇▇▇▇▇ ABB and B▇▇▇▇Purchaser;
(b) by Seller if the waiting period under the HSR Act has not expired either ABB or terminated by February 18Purchaser, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred been consummated by eight (8) months following the date of this Agreement (the “Termination Date”)July 31, unless extended by written agreement of Seller and Buyer2004; provided, however, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
clause (d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(db) shall not be available to a Party party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(c) by ABB, if Purchaser in any material respect shall have breached or failed to perform or comply with any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform or comply: (i) would give rise to the failure of a condition set forth in Section 8.3; and (ii) has not been, or is incapable of being, cured by Purchaser within 30 days of Purchaser's receipt of written notice thereof from ABB;
(d) by Purchaser, if ABB in any material respect shall have breached or failed to perform or comply with any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform or comply: (i) would give rise to the failure of a condition set forth in Section 8.2; and (ii) has not been, or is incapable of being, cured by ABB within 30 days of ABB's receipt of written notice thereof from Purchaser;
(e) by either Seller Purchaser, if there has occurred any change in, or Buyer by giving written notice effect on, the Acquired Group which (i) would give rise to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any the condition set forth in Section 8.2(f); and (ii) has not been, or is incapable of its obligations hereunderbeing, cured by ABB within 30 days of ABB's receipt of written notice thereof from Purchaser;
(f) by either Seller or Buyer Purchaser, if any proceeding is instituted by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting ABB (or any adjournment parent company of ABB), or postponement thereof at which ABB (or such vote was takenparent company) publicly announces an intention to institute such a proceeding, to adjudicate any of them bankrupt or insolvent, or seeking liquidation, winding up or reorganization arrangements, or adjustment, protection, relief or composition of its debts under any Law relating to bankruptcy, insolvency or reorganization (but excluding, for the avoidance of doubt, the merger contemplated by Schedule 11.6 of this Agreement);; and
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination DateABB, if Seller has complied with the terms any proceeding is instituted by Purchaser (or any parent company of Section 7.3 in all material respects and the Seller Board authorizes Seller Purchaser), or Purchaser (or such parent company) publicly announces an intention to enter into an Alternative Acquisition Agreement with respect institute such a proceeding, to a Superior Proposal concurrently with the termination adjudicate any of this Agreement; or
(i) by either Seller them bankrupt or Buyer in the event insolvent, or seeking liquidation, winding up or reorganization arrangement, adjustment, protection, relief or composition of a CFIUS Denialits debts under any Law relating to bankruptcy, insolvency or reorganization.
Appears in 1 contract
Sources: Purchase Agreement (White Mountains Insurance Group LTD)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this 13.1.1 This Agreement may be terminated and the transactions contemplated hereby may be abandoned (“résilié” / “beëindigd”) at any time by mutual consent of the Seller and the Purchaser.
13.1.2 This Agreement may be terminated (“résilié” / “beëindigd”) by either Party upon giving a fifteen-day advance notice to the other Party, if the Closing has not occurred (other than through the failure of the Party seeking to terminate this Agreement to comply fully with its obligations under this Agreement or through a dispute being pending before the Independent Expert in accordance with Clause 13.1.3 or 13.1.5 or before the arbitration tribunal in accordance with Clause 9.3.2) on or before 90 days as from the signing of this Agreement, or such other date as the Parties may agree upon.
13.1.3 This Agreement may be terminated (“résolu” / “ontbonden”) by the Purchaser, at its sole discretion, on or before the Closing Date (and if on the Closing Date, prior to the Closing:Closing taking place):
(aa.) If the Adjusted EBITDA over the accounting year ending on December 31, 2005 is less than EUR 7.1 million. Any disputes with respect to the determination and calculation of the Adjusted EBITDA and the CLD Pro Forma Annual Accounts 2005 for purposes of this Clause 13.1.3(a) shall be finally settled by mutual written consent of S▇▇▇▇▇ the Independent Expert, appointed and B▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving acting mutatis mutandis in accordance with Clause 3.3.6. The Purchaser shall in any event deliver a written notice to the other Party if Seller within 7 days as from the Closing shall not have occurred by eight earlier of:
(8) months i) the end of the 6th week following the date on which the Second Phase Due Diligence will have commenced or will be deemed to have commenced in accordance with Clause 7.1.1
(ii) the end of this Agreement (its and its advisors’ reviews conducted under the “Termination Date”)Second Phase Due Diligence, unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall specifying whether or not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained a termination event as set out in this Agreement by Clause 13.1.3(a) has occurred, and describing in reasonable detail the basis for such Party;
termination event (d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice any). The determination and calculation as set forth in Article VIII not this written notice shall be final and binding on the Parties unless the Seller shall within 7 days as from the above Purchaser’s written notice deliver to be satisfied andthe Purchaser written notice of objection hereto, except specifying in reasonable detail each disputed item, including the data that forms the basis thereof and the amount in dispute. In case the Seller so delivers a notice of a breach of Buyer’s obligation objection, the dispute is referred to effect the Closing and pay the Closing Cash Consideration Independent Expert in accordance with the terms of Article VIII, such breach has not been cured within foregoing.
(b.) In case the earlier of (i) thirty (30) days after written notification thereof disclosures made by the Party seeking termination hereunder Seller, including, without limitation, the disclosures set forth on Schedule 7.1.3 (with the exclusion of any First Phase Due Diligence findings of the Purchaser as set out in Schedule 13.1.3(b)) or the Second Phase Due Diligence (pursuant to a notice delivered to the Seller as set out in Clause 7.1.2) should reveal any: • liabilities, whether actual or contingent; or • objective facts or matters which, have or are reasonably likely to have an impact on the continued operations of the CLD business in going concern and (ii) the Termination Daterebus sic stantibus, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, assuming that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure current operations of the Closing to occur CLD business are in compliance with the situation as reflected in the Seller’s Representations. which : • have a one-off downward cash effect on one or before such date;
more of the CLD Companies plus the Acquired Operations which in the aggregate is in excess of the Benchmark Amount (e) by either Seller or Buyer by giving written notice calculated without regard to the other Party Tax implications); or • if any Governmental Authority shall of a recurring nature, have issued an order, decree a net present value downward effect on one or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any more of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that CLD Companies plus the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from Acquired Operations which in the failure aggregate is in excess of such Party to perform any of its obligations hereunder;
the Benchmark Amount (f) by either Seller or Buyer by giving written notice calculated without regard to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takenTax implications);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination it being understood that, for purposes of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.Clause 13.1.3(b):
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby Transactions may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ Seller and B▇▇▇▇Buyer;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement June 28, 2021 (the “Termination Outside Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not Outside Date may be available to any Party if such failure of the Closing to occur extended by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if for a period of three months (or such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder period as Buyer and Seller may agree in a manner that would reasonably be expected to cause any writing) in the event the condition of such Party giving notice set forth in Article VIII Section 8.1(b) or, if and only if relating to an Order arising under any Antitrust Law, Section 8.1(a), have not been satisfied and all other closing conditions to the respective obligations of the Parties to close hereunder that are capable of being fulfilled by the Outside Date have been satisfied or waived (or, with respect to the conditions that by their terms must be satisfied andat the Closing, except in the case of a breach of Buyer’s obligation to effect would have been so satisfied if the Closing and pay the Closing Cash Consideration in accordance with the terms would have occurred as of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breachdate); provided, further, that the right to terminate this Agreement under this Section 11.1(dclause (b) shall not be available to a any Party whose failure to fulfill any obligation under this Agreement has been the principal cause of, or resulted in, the failure of the Closing to occur on or before such date;
(ec) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority Entity shall have issued an order, decree or ruling or taken any other action Order permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this AgreementTransactions, and such order, decree, ruling or other action Order shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(eclause (c) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from whose failure to fulfill any obligation under this Agreement has been the failure principal cause of the imposition of such Party to perform any of its obligations hereunderOrder;
(fd) by either Seller or Buyer Seller, by giving written notice to the other Party Buyer if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason either any of the representations and warranties of Buyer contained in Article V shall fail to be true and correct, or there shall be a breach by Buyer of any covenant or agreement of Buyer in this Agreement, that, in either case, (i) would result in the failure to obtain of a condition set forth in Section 8.2(a) or Section 8.2(b), as applicable, and (ii) which is not curable or, if curable, is not cured upon the required vote upon a final vote taken at occurrence of the Stockholder Meeting earlier of (or any adjournment or postponement A) the 30th day after written notice thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) is given by Seller at any time to Buyer and (B) the day that is the Business Day prior to the Termination Outside Date; provided, that Seller may not terminate this Agreement pursuant to this Section 9.1 if Seller has complied with shall have breached any representation, warranty or agreement contained herein that would result in the terms failure of Section 7.3 a condition set forth in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this AgreementSection 8.3(a) or Section 8.3(b), as applicable; or
(e) by Buyer, by giving written notice to Seller if any of the representations and warranties of Seller contained in Article III or Article IV shall fail to be true and correct, or there shall be a breach by Seller of any covenant or agreement of Seller in this Agreement that, in either case, (i) by either Seller or Buyer would result in the event failure of a CFIUS Denialcondition set forth in Section 8.3(a) or Section 8.3(b), as applicable, and (ii) which is not curable or, if curable, is not cured upon the occurrence of the earlier of (A) the 30th day after written notice thereof is given by Buyer to Seller, and (B) the day that is the Business Day prior to the Outside Date; provided, that Buyer may not terminate this Agreement pursuant to this Section 9.1 if Buyer shall have breached any representation, warranty or agreement contained herein that would result in the failure of a condition set forth in Section 8.2(a) or Section 8.2(b), as applicable.
Appears in 1 contract
Termination Events. Without prejudice By notice given prior to other remedies which may be available or at the Closing, subject to the Parties by Law or this AgreementSection 9.2, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by mutual written consent Buyer if a material breach of S▇▇▇▇▇ any provision of this Agreement has been committed by a Seller and B▇▇▇▇such breach have not been waived by Buyer;
(b) by Seller Representative if the waiting period under the HSR Act a material breach of any provision of this Agreement has been committed by Buyer or Parent and such breach have not expired or terminated been waived by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.Seller Representative;
(c) by either Seller or Buyer by giving written notice to the other Party (i) if the Closing shall has not have occurred by eight on or before September 30, 2008, or such later date as the parties may agree upon, or (8) months following ii) if satisfaction of any condition in Article 7 on or before such date is or becomes impossible (in each case, other than through the date failure of Buyer or Parent to comply with their obligations under this Agreement (the “Termination Date”Agreement), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall Buyer has not be available to any Party if waived such failure of the Closing to occur by the Termination Date was primarily due to the breach condition on or violation of any representations, warranties, covenants or agreements contained in this Agreement by before such Partydate;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of Representative (i) thirty (if the Closing has not occurred on or before September 30) days after written notification thereof by , 2008, or such later date as the Party seeking termination hereunder and parties may agree upon, or (ii) the Termination Date, but, if satisfaction of any condition in Article 8 on or before such date is or becomes impossible (in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, than through the failure of the Closing any Seller to occur comply with its obligations under this Agreement), and Seller Representative has not waived such condition on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; providedcompliance with the applicable requirements of Section 6.6(c), that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party by Buyer if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunderParent receives a Superior Proposal;
(f) by either Seller or Buyer by giving written notice Representative if Parent has delivered to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason Seller Representative a Notice of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken)Superior Proposal;
(g) by either mutual consent of Buyer and Seller or Buyer if the Seller Board shall have made a Change of RecommendationRepresentative;
(h) by Seller at Representative on behalf of all Sellers if Buyer and/or Parent has not, on or before the later of (x) August 15, 2008 or (y) the thirtieth (30th) day after the date on which Buyer has received an executed Joinder to this Agreement from each Seller named on Annex A pursuant to Section 10.13, either (i) obtained a written commitment or written commitments (which may contain such conditions, qualifications and limitations as are then customary for any time prior capital markets or other financing transaction contemplated by such written commitment(s)) with respect to the Termination Datedebt portion of the Financing or (ii) in the event that the Buyer and/or Parent elects to proceed with definitive documentation with respect to such debt Financing in lieu of obtaining written commitments letters with respect thereto, if Seller has complied with made demonstrable progress in negotiating the terms of Section 7.3 in all material respects and definitive documentation for the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with debt portion of the termination of this Agreement; orFinancing;
(i) by either Buyer if any supplement to the Disclosure Letter is made pursuant to Section 5.4(c) with respect to any matter that would cause a representation or warranty of any Seller to be materially inaccurate; or
(j) by Seller Representative if any supplement to the Buyer Disclosure Letter is made pursuant to Section 6.3(c) with respect to any matter that would cause a representation or warranty of Buyer in the event of a CFIUS Denialor Parent to be materially inaccurate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Chanticleer Holdings, Inc.)
Termination Events. Without prejudice to limiting any other remedies which provision of this agreement:
(a) either party (terminating party) may be available terminate this agreement by notice in writing to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned other party given at any time prior to the Closingcommencement of the Court hearing on the Second Court Date:
(ai) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇if the Sunset Date has passed before the Scheme has become Effective;
(bii) by Seller if each of the waiting period under the HSR Act following has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.occurred:
(cA) the other party (defaulting party) is in breach of a material provision of this agreement (including, without limitation, a representation or warranty in clauses 1 or 2 of Schedule 4) other than as a result of a breach by either Seller or Buyer by giving written the terminating party of its obligations under this agreement;
(B) the terminating party has given notice to the other Party defaulting party setting out the relevant circumstances of the breach and stating an intention to terminate the agreement; and
(C) if the Closing shall not defaulting party's breach is capable of remedy, the relevant circumstances have occurred by eight continued to exist five Business Days (8) months following or any shorter period ending at 8.00am on the date of this Agreement (Second Court Date) from the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that time the right to terminate this Agreement under this Section 11.1(cnotice in clause 9.1(a)(ii)(B) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Partyis given;
(diii) by either Seller or Buyer by giving written notice if the Court fails to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration make order in accordance with section 411(1) of the terms of Article VIII, Corporations Act to convene the Scheme Meeting and either all appeals from such breach has not been cured within failure are unsuccessful or the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, butparties, in each caseaccordance with clause 6.7, only as long as such other Party continues determine not to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateinitiate an appeal;
(eiv) by either Seller provided that the terminating party has complied with its obligations under clauses 3.8(d) and 3.8(e), if the required majorities of Coalspur Shareholders do not approve the Scheme at the Scheme Meeting;
(v) if a Court or Buyer by giving written notice to the other Party if any Governmental Regulatory Authority shall have has issued an order, decree or ruling or taken any other action that permanently restraining, enjoining restrains or otherwise prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement, Transaction and such that order, decree, ruling or other action shall not be subject to appeal or shall have has become final and unappealablecannot be appealed; provided, that the right to or
(vi) in accordance with clause 3.8(b); or
(b) KCE may terminate this Agreement under this Section 11.1(e) shall not be available agreement by notice in writing to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller Coalspur given at any time prior to the Termination commencement of the Court hearing on the Second Court Date, if Seller has complied with :
(i) a Coalspur Director fails to recommend that Coalspur Shareholders vote in favour of the terms Scheme or withdraws his or her recommendation that Coalspur Shareholders vote in favour of Section 7.3 in all material respects and the Seller Scheme or otherwise makes a public statement or takes any action indicating that he or she no longer supports the Scheme or that they support a Competing Transaction;
(ii) a Coalspur Prescribed Occurrence occurs prior to the commencement of the Court hearing on the Second Court Date;
(iii) the Coalspur Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to recommends a Superior Proposal concurrently with the termination of this AgreementCompeting Proposal; or
(iv) a Competing Proposal is announced, made, or becomes open for acceptance and, pursuant to that Competing Proposal, the bidder for Coalspur acquires voting power (within the meaning of section 610 of the Corporations Act) of 50% or more of Coalspur and that Competing Proposal is (or has become) free from any defeating conditions.
(c) Coalspur may terminate this agreement by notice in writing to KCE given at any time prior to the commencement of the Court hearing on the Second Court Date if:
(i) by either Seller at any time prior to the date of the Scheme Meeting, a majority of the Coalspur Directors have changed, withdrawn or Buyer modified their recommendation in accordance with clause 6.6(b)(ii);
(ii) in order to permit the event Coalspur Board to recommend a Superior Offer, provided that Coalspur has first complied with clause 11.6 in relation to the Competing Proposal constituting such Superior Offer; or
(iii) an Insolvency Event occurs in relation to the KCE prior to the commencement of a CFIUS Denialthe Court hearing on the Second Court Date.
Appears in 1 contract
Sources: Scheme Implementation Agreement
Termination Events. Without prejudice to other remedies which may This Agreement may, by notice, be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingterminated:
(a) by mutual Purchaser, if a material breach of any provision of this Agreement has been committed by any Seller prior to the Closing, and such breach has not been waived by Purchaser or, where cure is possible, been cured within fifteen (15) days after Purchaser provides written consent of S▇▇▇▇▇ and B▇▇▇▇notice thereof to the Seller Representative;
(b) by the Seller Representative, if a material breach of any provision of this Agreement has been committed by Purchaser or Parent prior to the waiting period under the HSR Act Closing, and such breach has not expired or terminated been waived by February 18the Seller Representative or, 2025 where cure is possible, been cured within fifteen (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (1015) calendar days after the HSR Termination Date.Seller Representative provides written notice thereof to Parent and Purchaser;
(c) by either Seller or Buyer Purchaser by giving providing written notice to the other Party Seller Representative if Sellers have proposed a supplement to the Closing shall Disclosure Schedule in accordance with the procedures set forth in Section 5.8 and such supplement indicates that the condition set forth in Section 6.1(a) cannot have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyerbe satisfied; provided, however, that for purposes of determining the right to terminate this Agreement under this Section 11.1(c) satisfaction of such condition, such supplement shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Partyconsidered;
(d) by either mutual consent of Purchaser and the Seller or Buyer by giving written notice Representative prior to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateClosing;
(e) by either Seller or Buyer by giving written notice to Purchaser if the Closing has not occurred (other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from than through the failure of Parent and Purchaser to comply fully with their obligations under this Agreement) on or before December 31, 2013, or such Party to perform any of its obligations hereunder;later date as the Parties may agree upon in writing; or
(f) by either the Seller or Buyer by giving written notice to the other Party Representative if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall Closing has not have been obtained by reason of occurred (other than through the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or of any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement comply fully with respect to a Superior Proposal concurrently with the termination of its respective obligations under this Agreement; or
(i) by either Seller on or Buyer before December 31, 2013, or such later date as the Parties may agree upon in the event of a CFIUS Denialwriting.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Altisource Portfolio Solutions S.A.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated in the following events and in the transactions contemplated hereby may be abandoned at any time prior to the Closingmanner specified hereunder:
(a) by mutual written consent in the event that the Affected Party is rendered wholly or partially unable to perform its obligations under this Agreement because of S▇▇▇▇▇ a Force Majeure Event and B▇▇▇▇;
such inability to perform lasts for not less than a total of 90 (bninety) by Seller if days in any continuous period of 180 (one hundred eighty) days, and in the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to considered assessment of the other Party if (“Non-Affected Party”) there is no reasonable likelihood of the Closing Force Majeure Event coming to an end in the near future, the Non- Affected Party shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving at least 90 (ninety) days prior written notice to the other Affected Party if of its intention to so terminate this Agreement. In such other Party has breached its representationsan event, warrantiesthe termination shall take effect on expiry of the notice period or 90 (ninety) days whichever is later and the Parties shall be absolved of all rights/obligations under this Agreement, covenants, agreements or other obligations hereunder in a manner save those that would reasonably be expected to cause any condition had already accrued as on the effective date of such Party giving notice set forth in Article VIII not to be satisfied and, except termination of the Agreement;
(b) in the case of a breach of Buyer’s obligation event that the Purchaser is prevented /disabled under Applicable Law from using the Coal delivered to effect it under this Agreement, for reasons beyond its control, owing to changes in applicable environmental and/or statutory norms, howsoever brought into force, the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that Purchaser shall have the right to terminate this Agreement under this Section 11.1(dby giving a prior written notice of not less than 30 (thirty) shall not be available days to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateSeller;
(ec) by either in the event of any material change in the Coal distribution system of the Seller due to Applicable Laws or Buyer by giving a Government directive/ notification at any time after the Signature Date, the Seller shall within 7 (seven) days of introduction of such change provide a written notice to the Purchaser calling for a joint review of this Agreement. If the Parties are unable to arrive at a mutually agreed position with respect to the subject matter of review, within a period of 30 (thirty) days from the date of the above mentioned notice, the Seller shall have the right to terminate the Agreement subject to a further written notice of 30 (thirty) days being given in writing to the other Party if without any Governmental Authority obligation/liability whatsoever;
(d) subject to Clause5.2, in the event that the Purchaser resells or diverts the Coal purchased under this Agreement to any Third Party, the Seller shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under after giving the Purchaser a due opportunity of being heard on the matter;
(e) in the event of invocation of the Performance Security or suspension of Coal supplies pursuant to Clause 14, the Seller shall have the right to terminate this Section 11.1(eAgreement by providing prior written notice of 30 (thirty) shall days to the Purchaser; provided that the Purchaser has not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from replenished the failure Performance Security within the aforesaid said notice period of such Party to perform any of its obligations hereunder30 (thirty) days;
(f) by in the event that either Seller Party suffersinsolvency, appointment of a liquidator (provisional or Buyer by giving written notice to final), appointment of a receiver of any of its material assets, levy of any order of attachment of its material assets, or any order or injunction restraining the Party from dealing with or disposing of its assets and such order after having been passed is not vacated within 60 (sixty) days, the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained be entitled to terminate this Agreement by reason giving prior written notice of the failure 30 (thirty) days to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken)first Party;
(g) in the event that any Party (“Defaulting Party”) commits a breach of any covenant, term or condition of this Agreement not otherwise specified under this Clause 17.2or of any term or provision of the Scheme Document and such breach, if curable, is not cured by either Seller or Buyer if the Seller Board Defaulting Party to the satisfaction of the other Party (“Non-Defaulting Party”) within a period of 90 (ninety) days of receipt of a notice in this regard from the Non-Defaulting Party, then the Non-Defaulting Party shall have made a Change the right to terminate this Agreement forthwith on expiry of Recommendationthe said 90 (ninety) day period;
(h) in the event that the information contained in any of the documents and/ or undertakings provided by Seller at any time prior the Purchaser to the Termination DateSeller and/ or to SCCL under this Agreement and/ or the Scheme Document (including information or documentation provided pursuant to the provisions of clauses3.4 and 3.5.4 of the Scheme Document) ceases to be true and correct or is found to be misleading, if Seller has complied with the terms of Section 7.3 in all material respects and untrue or incorrect, then the Seller Board authorizes Seller shall have the right to enter into an Alternative Acquisition terminate this Agreement with respect by giving prior written notice of 30 (thirty) days to a Superior Proposal concurrently with the termination of this Agreement; orPurchaser;
(i) by either Seller or Buyer subject to Clause 15, in the event that the Purchaser (or the new entity formed as a result of change in Control of the Purchaser) or the relevant transferee ceases to comply with any of the Eligibility Conditions or any other conditions specified herein, then the Seller shall have the right to terminate this Agreement by giving prior written notice of 30 (thirty) days to the Purchaser;
(j) in the event that the Specified End Use Plant ceases to remain operational for a CFIUS Denialcontinuous period of 12 (twelve) months or is shut down for any reason, the Seller shall have the right to terminate this Agreement by giving prior written notice of 30 (thirty) days to the Purchaser;
(k) post expiry of the Lock-in Period, the Purchaser shall be entitled to terminate this Agreement for any reason whatsoever, by giving a prior written notice of 3 (three) months to the Seller; and/ or
(l) pursuant to Clause2.3, Clause 4.3.1, Clause 4.4 and Clause 15.3.
Appears in 1 contract
Sources: E Fuel Supply Agreement
Termination Events. Without prejudice to limiting any other remedies which provision of this deed:
(a) either party (non-defaulting party) may be available terminate this deed by notice in writing to the Parties other party:
(i) if the End Date has passed before the Transaction has been implemented (other than as a result of a breach by Law or the terminating party of its obligations under this Agreement, deed);
(ii) if each of the following has occurred:
(A) the other party (defaulting party) is in breach of a material provision of this Agreement may be terminated and the transactions contemplated hereby may be abandoned deed at any time prior to 8:00am on the Closing:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇Second Court Date;
(bB) by Seller if the waiting period under the HSR Act non-defaulting party has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written given notice to the other Party if defaulting party setting out the Closing shall not have occurred by eight (8) months following relevant circumstances of the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller breach and Buyer; provided, that the right stating an intention to terminate this Agreement under this Section 11.1(cdeed; and
(C) shall not be available the relevant circumstances have continued to exist five Business Days (or any Party if such failure of shorter period ending at 8:00am on the Closing to occur by Second Court Date) from the Termination Date was primarily due to time the breach or violation of any representations, warranties, covenants or agreements contained notice in this Agreement by such Partyclause 7.1(a)(ii)(B) is given;
(diii) by either Seller if the required majorities of Piedmont Shareholders do not approve the Scheme at the Scheme Meeting;
(iv) if any of the Conditions Precedent in clause 3.1 is incapable of being satisfied or Buyer by giving written notice to the fulfilled (other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in than as a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case result of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use terminating party of its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement obligations under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;deed); or
(ev) by either Seller if a Court or Buyer by giving written notice to the other Party if any Governmental Regulatory Authority shall have has issued an order, decree or ruling or taken any other action that permanently restraining, enjoining restrains or otherwise prohibiting prohibits the consummation of any of the transactions contemplated by this Agreement, Transaction and such that order, decree, ruling or other action shall not be subject to appeal or shall have has become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall cannot be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunderappealed;
(fb) US Holdco may terminate this deed by either Seller notice in writing to Piedmont if a Piedmont Director:
(i) fails to recommend, recommends against, withdraws or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason adversely modifies or qualifies their recommendation of the failure to obtain Scheme or the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this AgreementTransaction; or
(iii) by makes any public statement to the effect that the Scheme is not, or is no longer, recommended; and
(c) either Seller or Buyer party may terminate this agreement if the other party consents to do so and both parties confirm it in the event of a CFIUS Denialwriting.
Appears in 1 contract
Sources: Scheme Implementation Deed
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:Closing (whether before or after the adoption and approval of this Agreement by the Company’s shareholders):
(a) by the mutual written consent of S▇▇▇▇▇ Parent and B▇▇▇▇the Company;
(b) by Seller if either Parent or the waiting period under the HSR Act has not expired or terminated by February 18Company, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall has not have occurred by eight taken place on or before 5:00 p.m. (8) months following Central time) on December 31, 2014 (as such date may be extended in accordance with the date first proviso of this Agreement (Section 9.1(b), the “Termination End Date”)) provided, unless extended however, that if, by the third (3rd) Business Day prior to December 31, 2014, (i) the condition set forth in Section 7.3 has not been satisfied, Parent may, by written agreement of Seller notice delivered to the Company, extend the End Date from time to time to a date not later than February 27, 2015 and Buyer(ii) the condition set forth in Section 8.3 has not been satisfied, the Company may, by written notice delivered to Parent, extend the End Date from time to time to a date not later than February 27, 2015; providedprovided further, that neither Parent nor the right Company shall be permitted to terminate this Agreement under pursuant to this Section 11.1(c9.1(b) shall not be available if the failure to any Party if such failure of consummate the Closing to occur Merger by the Termination End Date was primarily due to the arises or results from, or is caused by, a material breach or violation by such party of any of its representations, warranties, covenants or agreements contained in this Agreement by such Partyherein;
(dc) by either Seller Parent or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of Company if: (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such a court of competent jurisdiction or other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority Body shall have issued an ordera final and nonappealable Order, decree or ruling or shall have taken any other action action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Body that would make consummation of the Merger illegal;
(d) by Parent if: (i) any of the transactions contemplated by representations and warranties of the Company contained in this Agreement shall be inaccurate as of the date of this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableinaccurate as of a date subsequent to the date of this Agreement, such that the condition set forth in Section 7.1 would not be satisfied; (ii) any of the covenants of the Company contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred; provided, that however, that, in the right case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company is curable by the Company through the use of reasonable efforts within thirty (30) days after Parent notifies the Company in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Parent may not terminate this Agreement under this Section 11.1(e9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company, during the Company Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period);
(e) by the Company if: (i) any of Parent’s representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement, such that the condition set forth in Section 8.1 would not be available satisfied; or (ii) if any of Parent’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to any Party the date of this Agreement or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts within thirty (30) days after the Company notifies Parent in writing of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Company may not terminate this Agreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Parent, during the Parent Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) with respect to such inaccuracy or breach if such order, decree, ruling inaccuracy or other Proceeding was caused by or resulted from breach is cured prior to the failure expiration of such Party to perform any of its obligations hereunder;the Parent Cure Period); or
(f) by either Seller or Buyer by giving written notice to the other Party Parent if the Stockholder Meeting shall have been held and completed and Required Merger Shareholder Vote is not obtained within twenty-four (24) hours after the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination execution of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be Transactions abandoned at any time prior to the ClosingEffective Time, as follows:
(a) by By mutual written consent agreement of SInspirato and ▇▇▇▇▇ and B▇▇▇▇;▇.
(b) by Seller By either Inspirato or Buyerlink, if the waiting period under the HSR Act Closing has not expired occurred on or terminated by February 18before October 31, 2025 (the “HSR Termination Initial Outside Date”, and as may be extended pursuant to this Section 6.1(b), the “Outside Date”); provided, by giving written notice to Buyer no later than ten (10) calendar days after that the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice Initial Outside Date may be extended pursuant to the other Party if the Closing shall not have occurred by eight (8) months following the date mutual consent of this Agreement (the “Termination Date”), unless extended by written agreement of Seller Inspirato and BuyerBuyerlink; provided, further, that the right to terminate this Agreement under this Section 11.1(c6.1(b) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party party whose failure to fulfill any obligation under this Agreement has been the primary cause of, or resulted in, of the failure of to consummate the Closing to occur on or before Merger by such date;.
(ec) by By either Seller Inspirato or Buyer by giving written notice to the other Party Buyerlink, if any Governmental Authority shall have enacted or issued an ordera final, decree non-appealable law, regulation, or ruling order permanently restraining or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableMerger; provided, provided that the right to terminate this Agreement under this Section 11.1(e6.1(b) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from party whose failure to fulfill any obligation under this Agreement has been the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason primary cause of the failure to obtain consummate the required vote upon a final vote taken Merger by such date.
(d) By either Inspirato or Buyerlink, if the Inspirato Stockholder Approval is not obtained at the Inspirato Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takenthereof);.
(ge) by either Seller or Buyer By Buyerlink if the Seller Board (i) an Adverse Recommendation Change shall have made occurred or Inspirato failed to make the Inspirato Board Recommendation, in each case whether or not permitted by the terms hereof or (ii) if Inspirato or Merger Sub shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (or if any of the representations or warranties of Inspirato and Merger Sub set forth in this Agreement shall fail to be true), which breach or failure (A) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a Change condition set forth in Section 5.3(a) or Section 5.3(b) and (B) is incapable of Recommendation;being cured, or is not cured, by Inspirato or Merger Sub by the earlier of thirty (30) days following receipt of written notice from Buyerlink of such breach or failure or the Outside Date; provided that Buyerlink shall not have the right to terminate this Agreement pursuant to this Section 6.1(e)(ii) if Buyerlink is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement such as would result in any of the closing conditions set forth in Section 5.2 not being satisfied.
(hf) by Seller By Inspirato (i) at any time prior to receipt of the Termination DateInspirato Stockholder Approval, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller order to enter into an Alternative Acquisition Agreement a binding written agreement with respect to a Superior Proposal concurrently Proposal, provided that Inspirato shall have complied in all material respects with its obligations under Section 4.3, (ii) if Buyerlink unreasonably withholds, conditions or delays its approval of any Specified Matter for which Buyerlink’s reasonable approval is required, or Buyerlink otherwise #100494976v13 takes any action that is the termination primary cause of the condition set forth in Section 5.3(f) being made incapable of being satisifed or (iii) if Buyerlink shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement; or
Agreement (ior if any of the representations or warranties of Buyerlink set forth in this Agreement shall fail to be true), which breach or failure (A) by either Seller would (if it occurred or Buyer in was continuing as of the event Closing Date) give rise to the failure of a CFIUS Denialcondition set forth in Section 5.2(a) or Section 5.2(b) and (B) is incapable of being cured, or is not cured, by ▇▇▇▇▇▇▇▇▇, by the earlier of thirty (30) days following receipt of written notice from Inspirato of such breach or failure or the Outside Date; provided that Inspirato shall not have the right to terminate this Agreement pursuant to this Section 6.1(f)(ii) if Inspirato or Merger Sub is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement such as would result in any of the closing conditions set forth in Section 5.3(a) and Section 5.3 not being satisfied.
Appears in 1 contract
Sources: Merger Agreement (Inspirato Inc)
Termination Events. Without prejudice By written notice given prior to other remedies which may be available or at the Closing, subject to the Parties by Law or this AgreementSection 8.2, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by mutual Parent, in the event Vianeta breaches any representation, warranty or covenant contained in this Agreement, and such breach (i) individually or in combination with any other breach, would cause any condition set forth in Section 7.1 or Section 7.2 not to be satisfied, and (ii) is not cured within thirty (30) days following delivery of written consent notice of S▇▇▇▇▇ and B▇▇▇▇such breach from Parent to Vianeta;
(b) by Seller if Vianeta, in the waiting period under the HSR Act has event Holdings, Parent or Merger Sub breaches any representation, warranty or covenant contained in this Agreement, and such breach (i) individually or in combination with any other breach, would cause any condition set forth in Section 7.1 or Section 7.3 not expired or terminated by February 18to be satisfied, 2025 and (the “HSR Termination Date”), by giving ii) is not cured within thirty (30) days following delivery of written notice of such breach from Vianeta to Buyer no later than ten (10) calendar days after the HSR Termination Date.Parent;
(c) by either Seller Parent or Buyer by giving written notice to the Vianeta, if any temporary, preliminary or permanent injunction or other Party if the Closing shall not have occurred by eight (8) months following Order has been issued since the date of this Agreement (by any Governmental Authority that prevents the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure consummation of the Closing to occur by transactions contemplated hereby and such Order has become final and nonappealable, or if any Legal Requirement has been enacted, promulgated or enforced since the Termination Date was primarily due to the breach or violation date of any representations, warranties, covenants or agreements contained in this Agreement by such Party;any Governmental Authority that makes the consummation of the transactions contemplated hereby illegal.
(d) by either Seller Parent or Buyer by giving written notice Vianeta, if the satisfaction of any of the conditions to such party's obligation to close the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice transactions contemplated hereby as set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of VII becomes impossible (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, than through the failure of the Closing terminating party to occur comply with its obligations under this Agreement) and such party has not waived such condition on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation mutual consent of any of the transactions contemplated by this Agreement, Parent and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunderVianeta;
(f) by either Seller Parent or Buyer by giving written notice to the other Party Vianeta, if the Stockholder Meeting shall have been held and completed and Closing has not occurred on or before March 31, 2006, or such later date as the Stockholder Approval shall not have been obtained by reason of parties may agree upon, unless the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 terminating party is in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination breach of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated prior to Closing and the transactions contemplated hereby may be abandoned at any time prior to the Closingabandoned:
(a) by mutual written consent either Comcast Subsidiary or Time Warner Cable, at any time after the earlier (i) of S▇▇▇▇▇ nine months after the termination of the TWC Redemption Agreement without the Closing (as defined thereunder) occurring and B▇▇▇▇(ii) May 31, 2007 (the earlier of (i) and (ii), the "Outside Closing Date");
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”)at any time, by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.mutual agreement of Comcast Subsidiary and Time Warner Cable;
(c) by either Seller Comcast Subsidiary or Buyer by giving Time Warner Cable, at any time upon written notice to the other Party other, if the other is in material breach or default of its respective covenants, agreements, representations, or other obligations herein or in any Transaction Document to which such Person or its Affiliates is a party and such breach or default (i) has not been cured within 30 days after receipt of written notice or such longer period as may be reasonably required to cure such breach or default (provided, that the breaching or defaulting party shall be using commercially reasonable efforts to cure such breach or default) or (ii) would not reasonably be expected to be cured prior to the Outside Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to if any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach covenant, agreement, representation or violation of any representations, warranties, covenants or agreements contained other obligation in this Agreement is qualified by a reference to materiality or Material Adverse Effect, such Partyqualifier shall be taken into account without duplication;
(d) automatically without action by either Seller or Buyer by giving written notice any party hereto if the Option shall terminate pursuant to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date2.1(a)(iii);
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Comcast Subsidiary as provided in Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder12.16;
(f) by either Seller or Buyer Comcast Subsidiary, at any time after April 1, 2005, if by giving written notice to the other Party if parties Comcast Subsidiary irrevocably elects not to exercise the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);Option; or
(g) automatically without action by either Seller or Buyer if any party hereto upon the Seller Board shall have made a Change of Recommendation;
Closing (h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer as defined in the event of a CFIUS DenialTWC Redemption Agreement), the Closing (as defined in the TWE Redemption Agreement) or the Closing (as such term will be defined in the Alternate Tolling Agreement).
Appears in 1 contract
Sources: Tolling and Optional Redemption Agreement (Time Warner Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent the Purchaser if (i) there is a Breach of S▇▇▇▇▇ any covenant or obligation of the Seller such that the closing condition set forth in Section 6.4(b) would not be satisfied, or (ii) there is a Breach of the Seller’s representations and B▇▇▇▇warranties as of the date of this Agreement or as of any subsequent date (as if made on such subsequent date) such that the closing condition set forth in Section 6.1 would not be satisfied; provided, however, that the Purchaser shall not be permitted to terminate this Agreement pursuant to this Section 8.1(a) on account of any Breach which is curable by the Seller unless the Seller fails to cure such Breach within 30 calendar days after receiving notice of such Breach;
(b) by the Seller if (i) there is a Breach of any covenant or obligation of the waiting period under Purchaser such that the HSR Act has closing condition set forth in Section 7.4(b) would not expired be satisfied, or terminated (ii) there is a Breach of the Purchaser’s representations and warranties as of the date of this Agreement or as of any subsequent date (as if made on such subsequent date) such that the closing condition set forth in Section 7.1 would not be satisfied; provided, however, that the Seller shall not be permitted to terminate this Agreement pursuant to this Section 8.1(b) on account of any Breach which is curable by February 18, 2025 (the “HSR Termination Date”), by giving written notice Purchaser unless the Purchaser fails to Buyer no later than ten (10) cure such Breach within 30 calendar days after the HSR Termination Date.receiving notice of such Breach;
(c) by either the Purchaser or the Seller or Buyer by giving written notice to the other Party if the Closing shall has not have occurred by eight (8) months following the date of this Agreement taken place on or before January 31, 2006 (the “Termination Date”), unless extended by written agreement ) (other than as a result of Seller any failure on the part of the terminating party to comply with or perform its covenants and Buyer; provided, that the right to terminate obligations under this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Partyall material respects);
(d) by either Seller or Buyer by giving the mutual written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure consent of the Closing to occur on or before such date;Purchaser and the Seller; and
(e) by either Seller or Buyer by giving written notice to the other Party Purchaser, if any Order by any Governmental Authority shall have issued an order, decree Body of competent jurisdiction preventing or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or Merger shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialnonappealable.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cord Blood America, Inc.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this (a) This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(ai) by mutual written consent of S▇▇▇▇▇ the Purchaser, the Company and B▇▇▇▇;
the Stockholders’ Representative; (bii) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after from the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice Purchaser to the other Party Company and the Stockholders’ Representative, if there has been a breach of any representation, warranty, covenant or agreement by the Closing Company or the Stockholders, or any such representation or warranty shall not have occurred by eight (8) months following become untrue after the date of this Agreement (the “Termination Date”)Agreement, unless extended by written agreement of Seller and Buyer; provided, such that the right to terminate this Agreement under this conditions in Section 11.1(c) shall 5.1 or Section 5.2 would not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has is not been curable or, if curable, is not cured within the earlier of (iA) thirty twenty (3021) days after written notification notice thereof is given by the Party seeking termination hereunder Purchaser to the Company and the Stockholders’ Representative, and (iiB) the Termination Expiration Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(eiii) by either Seller or Buyer by giving written notice from the Stockholders’ Representative to the other Party Purchaser, if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation there has been a breach of any representation, warranty, covenant or agreement by the Purchaser, or any such representation or warranty shall become untrue after the date of the transactions contemplated by this Agreement, such that the conditions in Section 5.1 or Section 5.3 would not be satisfied and such orderbreach is not curable or, decreeif curable, ruling or other action shall is not be subject to appeal or shall have become final and unappealable; provided, that cured within the right to terminate this Agreement under this Section 11.1(eearlier of (A) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
ten (f10) by either Seller or Buyer by giving days after written notice thereof is given by the Stockholders’ Representative to the other Party if Purchaser, and (B) the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Expiration Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(iiv) by either Seller five (5) days’ prior written notice by the Stockholders’ Representative to the Purchaser or Buyer the Purchaser to the Company and the Stockholders’ Representative, as the case may be, in the event the Closing has not occurred on or prior to December 31, 2017 (the “Expiration Date”) for any reason other than delay or nonperformance of or breach by the party seeking such termination; provided that the parties may mutually agree, in writing, to extend the Expiration Date.
(b) In the event of termination of this Agreement pursuant to this ARTICLE VIII, this Agreement shall forthwith become void and there shall be no liability on the part of any party to this Agreement or its partners, officers, directors, stockholders, members or other equity holders, except for obligations under Section 4.7 (Confidentiality), Section 10.3 (Fees and Expenses), Section 10.4 (Waiver; Amendment), Section 10.5 (Entire Agreement), Section 10.6 (Execution of Agreement; Counterparts; Electronic Signatures), Section 10.7 (Governing Law; Venue), Section 10.8 (Attorneys’ Fees), Section 10.9 (Assignment and Successors), Section 10.11 (Notices), Section 10.12 (Severability), Section 10.13 (Schedules and Exhibits) and this Section and the definitions used in each of the foregoing sections, including those set forth in Exhibit 1 hereto, all of which shall survive such termination and the Termination Date. In addition, within two (2) days of the termination date, the Company shall return the Purchaser the loan amount provided to the Company by Purchaser, in a CFIUS Denialprincipal amount of US $96,295together with any accrued interest. Notwithstanding the foregoing, nothing contained in this Agreement shall relieve any party from liability for any breach of this Agreement.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time notice given prior to the Closing, be terminated:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;the Buyers,
(bi) in the event of non-compliance by Seller if any Debtor with the waiting period under the HSR Act requirements set forth in Section 6.1 hereof, except where such non-compliance has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall would not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause have a Material Adverse Effect, provided that if any condition such non-compliance is curable prior to December 31, 2003 by the Sellers through the use of commercially reasonable efforts, following written notice of such Party giving notice set forth in Article VIII not to be satisfied and, except in breach from the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only Buyers for as long as such other Party continues to use its the Sellers shall be using their commercially reasonable best efforts to cure such breach; provided, that the right to Buyers may not terminate this Agreement under pursuant to this clause (i),
(ii) in the event the Sellers shall fail to make their pre-merger notification filing with the Federal Trade Commission no later three days following entry of the Confirmation Order,
(iii) if the Bankruptcy Court shall fail to enter (A) the Sale Order in the form required by Section 11.1(d6.1 on or before November 30, 2003 or, (B) if the Reorganizing Heber Debtors pursue confirmation of the Plan, the Confirmation Order on or before December 15, 2003,
(iv) if there shall have been, since the date hereof, any change, condition, circumstance or occurrence of any event that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect,
(v) if any of the conditions in Sections 7.1 through and including 7.15 are not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause ofsatisfied by December 31, or resulted in, 2003 (other than through the failure of the Buyers to comply with their obligations under this Agreement) and the Buyers have not waived such condition, or
(vi) if the Closing to Date does not occur on or before such dateprior to December 31, 2003;
(eb) by either Seller or Buyer by giving written notice to the other Party Sellers,
(i) if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated conditions in Section 8.1 through and including 8.9 becomes incapable of being satisfied by December 31, 2003 (other than through the failure of the Sellers to comply with their obligations under this Agreement) and the Sellers have not waived such condition, or
(ii) if the Buyers fail to make the Deposit as required by Section 2.3 of this Agreement, and such order, decree, ruling or other action shall not be subject (a termination pursuant to appeal or shall have become final and unappealable; provided, that this clause (b) resulting from a breach by the right to terminate Buyers of obligations under this Agreement under this Section 11.1(e) shall not be available being referred to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or as a "Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takenDefault Termination");
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(ic) by either Seller or Buyer in mutual consent of the event of a CFIUS DenialBuyers and the Sellers (which such consent shall be signed by each such party hereto and effective when signed.
Appears in 1 contract
Sources: Ownership Interest Purchase Agreement (Covanta Energy Corp)
Termination Events. Without prejudice to other remedies which may be available By written notice given prior to the Parties by Law or this AgreementClosing, subject to Section 10.02, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by mutual Buyer, in the event (i) any of the representations and warranties concerning the Sellers, the Company or the Blocker set forth in Articles III, IV and V, respectively, shall not be true and correct to the extent set forth in Section 9.02(a), or the Sellers, the Company or the Blocker shall have breached or failed to perform any of obligations under this Agreement to the extent set forth in Section 9.02(b) (other than through the failure of Buyer to comply with its obligations under this Agreement), and (ii) such breach, failure or misrepresentation (if curable) is not cured within 20 days after Buyer gives the Company and Sellers’ Representative written consent of S▇▇▇▇▇ and B▇▇▇▇notice identifying in reasonable detail such breach, failure or misrepresentation;
(b) by Seller if the waiting period under Company, in the HSR Act has event any of the representations and warranties of Buyer set forth in this Agreement shall not expired or terminated by February 18, 2025 (be true and correct to the “HSR Termination Date”extent set forth in Section 9.01(a), by giving written notice or if Buyer shall have breached or failed to Buyer no later perform any of its obligations, covenants or agreements under this Agreement to the extent set forth in Section 9.01(b) (other than ten through the failure of the Company, the Blocker or the Sellers to comply with their respective obligations under this Agreement), and (10ii) calendar such breach, failure or misrepresentation (if curable) is not cured within 20 days after the HSR Termination Date.Company gives Buyer written notice identifying in reasonable detail such breach, failure or misrepresentation;
(c) by either Seller Buyer or Sellers’ Representative, if any Governmental Order of any Governmental Entity of competent jurisdiction permanently restraining, enjoining or otherwise preventing the consummation of the transactions contemplated hereby has been issued and becomes final and non-appealable;
(d) by mutual written consent of Buyer and Sellers’ Representative;
(e) by giving written notice to Buyer or the other Party Sellers’ Representative, if the Closing shall has not have occurred by eight (8) months following on or before the date that is one hundred days after the date of this Agreement (the “Outside Termination Date”); provided that Buyer may not terminate this Agreement under this Section 10.01(e) if the Closing has not occurred as a result of Buyer’s failure to obtain the Financing;
(f) by Buyer, unless extended by written agreement if the Closing has not occurred on or before the date that is one hundred twenty days after the date of Seller and this Agreement as a result of Buyer’s failure to obtain Financing; provided, provided that the right to terminate this Agreement under this Section 11.1(c10.01(a), (b), (c), (d) and (e) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party party whose willful failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, contributed to the failure of the Closing transactions contemplated hereby to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action provided further that Buyer shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under Section 10.01(f) if the Company has commenced an Action to specifically enforce the provisions of this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the Agreement as a result of a failure of such Party the Closing to perform any of its obligations hereunder;
(f) by either Seller or occur because Buyer by giving written notice to the other Party if the Stockholder Meeting shall have has not been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure able to obtain the required vote upon a final vote taken at the Stockholder Meeting (Financing on or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Outside Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Securities Purchase Agreement (Diplomat Pharmacy, Inc.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ Parent and B▇▇▇▇Company;
(b) by Seller either Parent or Company, if the waiting period under the HSR Act has not expired there shall be any Law enacted or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice deemed applicable to the other Party Merger that makes consummation of the Merger illegal, or if any Order by any Governmental Entity of competent jurisdiction preventing or prohibiting consummation of the Closing Merger shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyerbecome a final Order; provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 8.1(b) must have used all reasonable efforts to remove any such Order in order to terminate this Agreement under this Section 11.1(c8.1(b);
(c) by either Parent or Company (provided that the party attempting to terminate is not then in material breach of any representation, warranty, covenant, or other agreement contained herein), if:
(i) there shall have been a material breach of any of the representations, warranties, agreements or covenants set forth in this Agreement on the part of the other party which has rendered the satisfaction of any conditions contained in Article VI or Article VII, as applicable, impossible;
(ii) such violation or breach has not been waived by the terminating party; and
(iii) the breach has not been cured within 10 days following the terminating party’s written notice of such breach;
(d) by Parent or Company, if:
(i) the Closing has not taken place on or before seventy-five (75) after the date hereof; provided, however, that each party’s right to terminate this Agreement pursuant to this Section 8.1(d) will not be available to any Party if such party in the event that such party’s breach of a representation, warranty or covenant contained in this Agreement is the principal cause of the failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(eii) by either Seller or Buyer by giving written notice there shall have occurred any Material Adverse Effect relating to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreementparty; or
(iii) any event shall have occurred or circumstance shall exist that, in combination with any other events or circumstances, could reasonably be expected to have or result in a Material Adverse Effect relating to the other party; or
(e) by Parent, if:
(i) by either Seller Parent shall not have received the Major Holder Consent and Release from the holders of at least a majority of the issued and outstanding shares of the Company Common Stock within two (2) Business Days of the date hereof;
(ii) the Major Holder Consent and Release is withdrawn, amended, modified or Buyer materially qualified, in a manner adverse to Parent; or
(iii) if, without breaching Section 5.5, Parent has received an Acquisition Proposal and the event Board of Directors of Parent determines in good faith, after consulting with outside legal counsel and its financial and legal advisors, that such Acquisition Proposal constitutes a CFIUS DenialSuperior Offer.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ Seller and B▇▇▇▇Buyer;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight September 14, 2022 (8) months following as may be extended in accordance with the date express provisions of this Agreement (Agreement, the “Termination Outside Date”), unless extended by written agreement of Seller and Buyerthe Parties; provided, however, that if all of the conditions to Closing other than the conditions set forth in Section 7.1(a) or Section 7.1(b) are satisfied or are capable of being satisfied at such time, the Outside Date shall automatically be extended to December 16, 2023; provided, further, that the right to terminate this Agreement under this Section 11.1(c9.1(b) shall not be available to any Party if such whose failure to fulfill any obligations under this Agreement has been the primary cause of the failure of the Closing to occur by on or before the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such PartyOutside Date;
(dc) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder hereunder, or if any representation or warranty of such other Party has become inaccurate, in each case in a manner that (taking all such breaches or inaccuracies into account) would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII Sections 7.2(a) or 7.2(b) or Sections 7.3(a) or 7.3(b) as applicable, not to be satisfied and, except in the case if of a breach character capable of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIIIbeing cured, such breach has not been cured within the earlier of (ix) three (3) Business Days prior to the Outside Date and (y) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breacha “Terminable Breach”); provided, provided that the right to terminate this Agreement under this Section 11.1(d9.1(c) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before if such date;Party is in Terminable Breach at such time.
(ed) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealablenon-appealable; providedor
(e) by Seller if (i) all the conditions set forth in Section 7.1 and Section 7.3 have been satisfied (and continue to be satisfied) or irrevocably waived (other than any such conditions which by their terms are not capable of being satisfied until the Closing Date), (ii) Seller delivers to Buyer written notice on or after the date that the right Closing is required to terminate occur pursuant to this Agreement under this and Seller is ready, willing and able to proceed with the Closing and (iii) Buyer does not consummate the Closing within three (3) Business Days of when the Closing is required to occur pursuant to Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;2.3; or
(f) by either Seller or Buyer by giving written notice pursuant to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takenSection 6.14(c);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Targa Resources Corp.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be Transactions abandoned at any time prior to the ClosingClosing as follows:
(a) by mutual written consent of S▇▇▇▇▇ Buyer's Parent and B▇▇▇▇Sellers' Representative;
(b) by Buyer's Parent if there has been a material breach of any representation, warranty, covenant, agreement or obligation hereunder by any Company, Seller if the waiting period under the HSR Act or Sellers' Representative and such breach has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written been cured within 10 Business Days after notice to Sellers' Representative (provided that neither Buyer, Buyer Cdn nor Buyer's Parent is in material breach of this Agreement, and provided further, that no later than ten (10cure period shall be required for a breach which by its nature cannot reasonably be expected to be cured within such 10 Business Days) calendar days after such that the HSR Termination Date.conditions set forth in Section 7.2.1 or Section 7.2.2, as the case may be, will not be satisfied;
(c) by either Seller Sellers' Representative if there has been a material breach of any representation, warranty, covenant, agreement or obligation herein on the part of Buyer, Buyer by giving written Cdn or Buyer's Parent, and such breach has not been cured within 10 Business Days after notice to Buyer (provided, that none of the other Party Companies, Sellers nor Sellers' Representative is in material breach of this Agreement, and provided further, that no cure period shall be required for a breach which by its nature cannot reasonably be expected to be cured within such 10 Business Days) such that the conditions set forth in Section 7.3.1 or Section 7.3.2, as the case may be, will not be satisfied;
(d) by Buyer's Parent or Sellers' Representative if: (i) there shall be a final, non-appealable order of a federal or state court in effect preventing consummation of the Transactions; or (ii) there shall be any final action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Transactions by any Governmental Entity that would make consummation of the Transactions illegal or that would prohibit ownership of the Shares or of any Operating Company, or operation of any of the Companies by either Buyer, Buyer Cdn or Buyer's Parent, or compel Buyer, Buyer Cdn or Buyer's Parent to dispose of or hold separate all or a material portion of the business or assets of the Companies, Buyer, Buyer Cdn or Buyer's Parent as a result of the Transaction; or
(e) by Buyer's Parent or Sellers' Representative (i) if the Closing shall not have occurred by eight (8) months following the 60th day after the date of this Agreement hereof and the Closing Condition set forth in Section 7.3.1 shall have been satisfied, and (ii) if the “Termination Date”)Closing shall not have occurred by the 90th day after the date hereof, unless extended by written agreement of Seller and Buyer; provided, provided that the right to terminate this Agreement under this Section 11.1(c9.1.1(e) shall not be available to (1) Buyer's Parent if the failure of Buyer, Buyer Cdn or Buyer's Parent to fulfill any Party if such material covenant, agreement or obligation hereunder has been the cause of, or resulted in, the failure of the Closing to occur by the Termination Date was primarily due on or before such date or (2) to the breach Sellers' Representative if its or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose Seller's failure to fulfill any material covenant, agreement or obligation under this Agreement hereunder has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Share Purchase Agreement (Vse Corp)
Termination Events. Without prejudice to other remedies which may be available The following shall constitute Termination Events, except where caused directly and specifically by the Province withholding any amount payable under this Agreement except to the Parties extent disputed by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the ClosingProvince in good faith:
(a) by mutual written consent if the Contractor is declared or adjudged a bankrupt, makes a general assignment for the benefit of S▇▇▇▇▇ and B▇▇▇▇creditors, or takes the benefit of any legislation in force for (i) protection against creditors, (ii) orderly payment of debts, or (iii) winding up or liquidation;
(b) by Seller if a receiver or receiver-manager is appointed for the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.business of the
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure material part of the Closing to occur property of the Contractor is seized or attached and such seizure or attachment is not successfully contested by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such PartyContractor within 21 days;
(d) by either Seller or Buyer by giving written notice to if the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateContractor ceases active business operations;
(e) by either Seller or Buyer by giving written if the Contractor carries on any business unrelated to the subject matter of this Agreement and does not cease to carry on such business within two Business Days of receiving notice to do so from the other Party if Province (in which context neither (i) any Governmental Authority shall have issued an orderlending between the Contractor, decree its general partners and any of their shareholders or ruling or taken any subsidiaries of their shareholders, nor (ii) any other action permanently restrainingnon arm’s-length financial transactions, enjoining or otherwise prohibiting shall be considered to be carrying on a business unrelated to the consummation subject matter of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder);
(f) if, during the Construction Period and at any time during the Construction Season, the Contractor (by either Seller or Buyer its own actions, and not merely by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason actions of the failure subcontractor retained by the Contractor in respect of the Project unless the Contractor fails to obtain diligently take action in response to abandonment of the required vote upon a final vote taken at Project by the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken)subcontractor) abandons the Project;
(g) if it is determined by either Seller or Buyer if arbitration pursuant to the Seller Board shall have made Dispute Resolution Procedure and on a Change basis consistent with section 2.1(a) and (b) of RecommendationSchedule 9 that the Contractor has failed to achieve:
(i) by July 31, 2009, 10% completion of the Project; or
(ii) by July 31, 2010, 30% completion of the Project;
(h) if the Contractor fails to achieve Traffic Availability by Seller November 1, 2012;
(i) if at any time prior after November 1, 2010 it is determined by arbitration pursuant to the Dispute Resolution Procedure that there is no reasonable possibility of the Contractor achieving Traffic Availability by November 1, 2012;
(j) if during the Operating Period the Contractor (by its own actions, and not merely by the actions of the subcontractor retained by the Contractor in respect of the O&M unless the Contractor fails to diligently take action in response to abandonment of the O&M by the subcontractor) abandons the business of carrying out the O&M;
(k) if the Contractor, having become subject to Payment Adjustments specified in any of sections 400.1.5 (including by cross-reference in section 200.2.3.23), 400.2.5, 400.3.3.3, 400.3.4.3, and 400.4.2.4 of Schedule 18 (Technical Requirements) as a potential Termination DateEvent, fails to within 10 days of receiving notification from the Province to do so submit to the Province a reasonable remedial plan for achieving due future performance of the O&M, or fails thereafter (but within the lesser of the duration of the remedial plan as specified therein or twelve months) to diligently implement and carry out such remedial plan;
(l) if Seller has complied with the terms Contractor, having become subject to Payment Adjustments (excluding Traffic Volume Adjustments) in any 12 month period that in aggregate exceed 75% of Section 7.3 in all material respects the aggregate O&M Payment (exclusive of any Major Rehabilitation Payment) during that 12 month period, fails to within 10 days of receiving notification from the Province to do so submit to the Province a reasonable remedial plan for achieving due future performance of the O&M, or fails thereafter to diligently implement and carry out such remedial plan;
(m) if after Traffic Availability the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this AgreementContractor, other than:
(i) for purposes expressly contemplated by Schedule 18 (Technical Requirements); or
(ii) for reasons of public safety, exercised on a temporary basis; takes any steps to exclude or limit the public from lawfully using the New Infrastructure for vehicle traffic or to prevent the performance by the Province of any statutory duty; or
(n) if the Contractor, upon receiving a Notice of Default from the Province where the specified Default has a Material Adverse Effect (regardless of whether the Notice of Default so indicates), fails to:
(i) cure the Default within 21 days; or
(ii) where the Default cannot by either Seller or Buyer in reasonable commercial efforts be cured within 21 days, communicate to the event Province and initiate within that 21 days a commercially reasonable course of action designed to cure the Default, and thereafter diligently pursue that course of action until the Default is cured; or
(iii) where the Default is an Incurable Default, within 21 days communicate to the Province and initiate a CFIUS Denialcommercially reasonable course of action designed to mitigate the consequences of the Incurable Default to the maximum extent practicable, and thereafter diligently pursue that course of action until the consequences of the Incurable Default have been so mitigated.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available Notwithstanding anything to the Parties by Law or contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be Acquisition abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ Seller and B▇▇▇▇Buyer;
(b) by either Seller if or Buyer if:
(i) the waiting period under the HSR Act Closing has not expired occurred on or terminated by February 18, 2025 before the twelve (12) month anniversary of the date hereof (the “HSR Termination End Date”), by giving written notice to Buyer no or such later than ten (10) calendar days after date as the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and BuyerParties may agree upon in writing; provided, however, that the right to terminate this Agreement under this Section 11.1(c12.1(b)(i) shall not be available to the Party seeking to terminate if any action or failure of such Party if such (or in the case of Buyer, Buyer Guarantor or a Buyer Assignee) in breach of this Agreement required to be performed at or prior to the Closing has been the primary cause of the failure of the Closing to occur by on or before the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;End Date; or
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) any Legal Restraint preventing the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breachconsummation of the Acquisition shall have become final and non-appealable; provided, however, that the right to terminate this Agreement under this Section 11.1(d12.1(b)(ii) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been if the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure issuance of such final, non-appealable Legal Restraint was primarily due to a failure by such Party (or, in the case of Buyer, Buyer Guarantor or a Buyer Assignee) to perform any of its obligations hereunderin breach of this Agreement, including pursuant to Section 7.3;
(fc) by either Seller or Buyer by giving written notice to if:
(i) (A) any of the other Party if the Stockholder Meeting conditions set forth in Section 4.3 shall have been held become incapable of fulfillment and completed and the Stockholder Approval shall not have been obtained waived by reason Seller, (B) forty-five (45) days have elapsed since the receipt by Buyer of a written notice from Seller of such incapability and (C) within such forty-five- (45) day period such condition shall not have become capable of fulfillment; or
(ii) (A) all of the failure conditions set forth in Section 4.1 and Section 4.2 (other than those conditions that by their terms are to obtain the required vote upon a final vote taken be satisfied at the Stockholder Meeting Closing) have been satisfied (or any adjournment or postponement thereof at subject to Section 4.4), (B) Seller has delivered to Buyer an irrevocable written notice confirming that it is ready, willing and able to consummate the Closing and (C) Buyer fails to complete the Closing within three (3) Business Days following the date on which such vote was takenthe Closing should have occurred pursuant to Section 3.1);
(gd) by either Seller or Buyer if (A) any of the Seller Board conditions set forth in Section 4.2 shall have made a Change become incapable of Recommendation;
fulfillment and shall not have been waived by Buyer, (hB) forty-five (45) days have elapsed since the receipt by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialwritten notice from Buyer of such incapability and (C) within such forty-five- (45) day period such condition shall not have become capable of fulfillment.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Huntsman International LLC)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by the mutual written consent of S▇▇▇▇▇ Purchaser and B▇▇▇▇the Company;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party Purchaser if the Closing shall has not have occurred by eight taken place on or before 5:00 p.m. (8) months following Eastern Time) on the date that is sixty (60) days after the date of this Agreement (the “Termination End Date”), unless extended by written agreement of Seller ) and Buyer; provided, that the right to terminate this Agreement under this any condition set forth in Section 11.1(c) shall 8 has not be available to any Party if such failure been satisfied or waived as of the Closing time of termination (in each case, other than as a result of any failure on the part of Purchaser to occur comply with or perform any covenant or obligation of Purchaser set forth in this Agreement);
(c) by the Termination Company if the Closing has not taken place on or before 5:00 p.m. (Eastern Time) on the End Date was primarily due to and any condition set forth in Section 9 has not been satisfied or waived as of the breach or violation time of termination (in each case, other than as a result of any representations, warranties, covenants failure on the part of the Company to comply with or agreements contained perform any covenant or obligation set forth in this Agreement by such PartyAgreement);
(d) by either Seller Purchaser or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of Company if: (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such a court of competent jurisdiction or other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority Entity shall have issued an order, decree a final and nonappealable Order or ruling or shall have taken any other action action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Share Purchase; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Share Purchase by any Governmental Entity that would make consummation of the Share Purchase illegal;
(e) by Purchaser if Purchaser is not in material breach of any provision of this Agreement and either: (i) any representation or warranty of any Seller or the Company contained in this Agreement shall be inaccurate as of the transactions contemplated by date of this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableinaccurate as of a date subsequent to the date of this Agreement, such that any of the conditions set forth in Section 8.1 would not be satisfied; (ii) any of the covenants of any Seller or the Company contained in this Agreement shall have been breached such that the condition set forth in Section 8.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, alone or in combination with any other events, circumstances or other Effects, could reasonably be expected to have or result in a Material Adverse Effect; provided, that however, that, in the right case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations or warranties of any Seller or the Company as of a date subsequent to the date of this Agreement, or a breach of a covenant by any Seller or the Company, is curable by such Seller or the Company, as applicable, through the use of reasonable efforts within ten (10) days after Purchaser notifies the Company in writing of the existence of such inaccuracy or breach (the “Seller Cure Period”), then, so long as such Seller continues to exercise reasonable efforts during the Seller Cure Period to cure such inaccuracy or breach, Purchaser may not terminate this Agreement under this Section 11.1(e10.1(e) shall as a result of such inaccuracy or breach prior to the expiration of the Seller Cure Period (it being understood that Purchaser may not be available terminate this Agreement pursuant to any Party this Section 10.1(e) with respect to such inaccuracy or breach if such order, decree, ruling inaccuracy or other Proceeding was caused by or resulted from breach is cured prior to the failure expiration of such Party to perform any of its obligations hereunder;the Seller Cure Period); or
(f) by either Seller the Company if neither the Sellers nor the Company are in breach of any provision of this Agreement and either: (i) any of Purchaser’s representations or Buyer by giving written notice warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the other Party date of this Agreement, such that the condition set forth in Section 9.1 would not be satisfied; or (ii) if the Stockholder Meeting any of Purchaser’s covenants contained in this Agreement shall have been held and completed and breached such that the Stockholder Approval shall condition set forth in Section 9.2 would not have been obtained be satisfied; provided, however, that if an inaccuracy in any of Purchaser’s representations or warranties as of a date subsequent to the date of this Agreement, or a breach of a covenant by reason Purchaser, is curable by Purchaser through the use of reasonable efforts within ten (10) days after the Company notifies Purchaser in writing of the failure existence of such inaccuracy or breach (the “Purchaser Cure Period”), then, so long as Purchaser continues to obtain exercise reasonable efforts during the required vote upon Purchaser Cure Period to cure such inaccuracy or breach, the Company may not terminate this Agreement under this Section 10.1(f) as a final vote taken at the Stockholder Meeting (result of such inaccuracy or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time breach prior to the Termination Date, if Seller has complied with expiration of the terms of Purchaser Cure Period (it being understood that the Company may not terminate this Agreement pursuant to this Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement 10.1(f) with respect to a Superior Proposal concurrently with such inaccuracy or breach if such inaccuracy or breach is cured prior to the termination expiration of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialPurchaser Cure Period).
Appears in 1 contract
Termination Events. Without prejudice By notice in writing given prior to other remedies which may be available or at Closing, subject to the Parties by Law or this AgreementSection 4.4, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by mutual the Purchaser if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Vendor Group under this Agreement occurs that would cause any condition in Section 4.1(1)(a) or Section 4.1(1)(b) not to be satisfied and such breach has not been cured (or is not capable of being cured) within the earlier of: (i) 30 days following written consent notice of S▇▇▇▇▇ such breach by the Purchaser, and B▇▇▇▇(ii) five (5) Business Days prior to the Outside Date; provided that the Purchaser may not terminate this Agreement under this Section 4.3(a) if the Purchaser is then in breach of this Agreement so as to directly or indirectly cause such condition or conditions not to be satisfied;
(b) by Seller the Purchaser if a Company Material Adverse Effect has occurred since the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.date of this Agreement;
(c) by either Seller or Buyer by giving written notice to the other Party Vendor Group if the Closing a Purchaser Material Adverse Effect shall not have occurred by eight (8) months following since the date of this Agreement;
(d) by the Vendor Group if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Purchaser under this Agreement occurs that would cause any condition in Section 4.2(1)(a) or Section 4.2(1)(b) not to be satisfied and such breach has not been cured (or is not capable of being cured) within the “Termination earlier of: (i) 30 days following written notice of such breach by the Vendor Group, and (ii) five (5) Business Days prior to the Outside Date”), unless extended by written agreement of Seller and Buyer; provided, provided that the right to Vendor Group may not terminate this Agreement under this Section 11.1(c4.3(d) shall not be available to any Party if such failure the Vendor Group is then in breach of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by so as to directly or indirectly cause such Party;
(d) by either Seller condition or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII conditions not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such datesatisfied;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any mutual consent of the transactions contemplated by this Agreement, Purchaser and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealablethe Vendor Group; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;or
(f) unilaterally by either Seller the Purchaser or Buyer by giving written notice to the other Party Vendor Group if the Stockholder Meeting shall have been held and completed and Closing has not occurred on or by the Stockholder Approval shall Outside Date (provided the terminating Party’s failure to comply with its obligations under this Agreement was not have been obtained by reason the cause therefor). If a Party waives compliance with any of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (conditions, obligations or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 covenants contained in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer , the waiver will be without prejudice to any of its rights of termination in the event of a CFIUS Denialnon-fulfilment, non-observance or non-performance of any other condition, obligation or covenant in whole or in part.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent The Employment Term will end, and the parties will not have any rights or obligations under this Agreement (except for the rights and obligations under those Sections of S▇▇▇▇▇ this Agreement that are continuing and B▇▇▇▇will survive the end of the Employment Term, as specified in Section 11.10 of this Agreement) on the earliest to occur of the following events (each a "Termination Date"):
(1) the death of Employee;
(b2) the termination of Employee’s employment as a result of Employee’s Disability (as defined in Section 4.1(b) of this Agreement);
(3) the termination of Employee's employment by Seller if Employee without Good Reason (as defined in Section 4.1(d) of this Agreement);
(4) the waiting period under termination of Employee's employment by SBG for Cause (as defined in Section 4.1(c) of this Agreement);
(5) the HSR Act termination of Employee's employment by SBG without Cause;
(6) the termination of Employee’s employment by Employee for Good Reason within three (3) months of the inception of the event giving rise to the Good Reason; provided, however, the Employee has not expired or terminated by February 18, 2025 (first given the “HSR Termination Date”), by giving Employer written notice to Buyer no later than of the Good Reason within ten (10) calendar business days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller its occurrence and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof following such notice to correct it;
(7) the termination of Employee’s employment by either SBG or Employee within twelve (12) months of Change in Control (as defined in Section 8.3 of this Agreement).
(b) Except as is provided in the Party seeking termination hereunder last sentence of this Section 4.1(b), for the purposes of this Agreement, "Disability" means Employee's inability, whether mental or physical, to perform the normal duties of Employee's position for ninety (90) days (which need not be consecutive) during any twelve (12) consecutive month period, and the effective date of such Disability shall be the day next following such ninetieth (90th) day. If SBG and Employee are unable to agree as to whether Employee is disabled, the question will be decided by a physician to be paid by SBG and designated by SBG, subject to the approval of Employee (which approval may not be unreasonably withheld) whose determination will be final and binding on the parties. Notwithstanding anything in this Section 4.1(b) or in this Agreement to the contrary, to the extent necessary to prevent a violation of section 409A of the Internal Revenue Code (and any guidance issued thereunder), "Disability" means a medically determinable physical or mental impairment which qualifies Employee for total disability benefits under the Social Security Act and/or which, in the opinion of SBG (based upon such evidence as it deems satisfactory): (i) can be expected to result in death or to last at least twelve (12) months, and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill will prevent Employee from performing any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialsubstantial gainful activity.
Appears in 1 contract
Sources: Employment Agreement (Sinclair Broadcast Group Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by the mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the Sellers’ Representative;
(b) by Seller Buyer, if the waiting period under the HSR Act Closing has not expired taken place on or terminated by February 18before 5:00 p.m. (Eastern time) on December 31, 2025 2023 (the “HSR Termination End Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right Buyer shall not be permitted to terminate this Agreement under pursuant to this Section 11.1(c8.1(b) shall not be available if the failure to any Party if such failure consummate the sale of the Closing to occur Purchased Units by the Termination End Date was primarily due to the results from, or is caused by, a material breach or violation by Buyer of any of its representations, warranties, covenants or agreements contained in this Agreement by such Partyherein;
(dc) by either Seller Buyer or Buyer by giving written notice to the other Party Sellers’ Representative if such other Party has breached its representations, warranties, covenants, agreements a court of competent jurisdiction or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an ordera final and nonappealable Order, decree or ruling or shall have taken any other action action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation sale of the Purchased Units as contemplated herein;
(d) by Buyer if: (i) any of the transactions contemplated by representations and warranties the Members or the Company contained in this AgreementAgreement shall be inaccurate as of the Agreement Date, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableinaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 6.1 would not be satisfied; (ii) any of the covenants of the Company or the Members contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred, or any event or other Effect shall have occurred or circumstance or other Effect shall exist that, in combination with any other events, circumstances or other Effects, would reasonably be expected to have or result in a Material Adverse Effect; provided, that however, that, in the right case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Company or the Members as of a date subsequent to the Agreement Date or a breach of a covenant by the Company or any Member is curable by the Company or such Member through the use of reasonable efforts within ten (10) Business Days after Buyer notifies the Sellers’ Representative in writing of the existence of such inaccuracy or breach (the “Member Cure Period”), then Buyer may not terminate this Agreement under this Section 11.1(e8.1(d) shall as a result of such inaccuracy or breach prior to the expiration of the Member Cure Period, provided the Company or the applicable Member, during the Member Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Buyer may not be available terminate this Agreement pursuant to any Party this Section 8.1(d) with respect to such inaccuracy or breach if such order, decree, ruling inaccuracy or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice breach is cured prior to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason expiration of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takenMember Cure Period);
(ge) by either Seller the Sellers’ Representative if: (i) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or Buyer if the Seller Board shall have made become inaccurate as of a Change date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; or (ii) if any of Recommendation;
Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Buyer’s representations and warranties as of a date subsequent to the Agreement Date or a breach of a covenant by Buyer is curable by Buyer through the use of reasonable efforts within ten (h10) by Seller at any time Business Days after the Sellers’ Representative notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then the Sellers’ Representative may not terminate this Agreement under this Section 8.1(e) as a result of such inaccuracy or breach prior to the Termination Dateexpiration of the Buyer Cure Period, if Seller has complied with provided Buyer, during the terms of Buyer Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that the Sellers’ Representative may not terminate this Agreement pursuant to this Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement 8.1(e) with respect to a Superior Proposal concurrently with such inaccuracy or breach if such inaccuracy or breach is cured prior to the termination expiration of this Agreement; or
(i) by either Seller or the Buyer in the event of a CFIUS DenialCure Period).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (CarGurus, Inc.)
Termination Events. Without prejudice to other remedies which may be available to (a) This Agreement may, by written notice given before the Parties by Law or this AgreementClosing, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(ai) by mutual written consent of S▇▇▇▇▇ the Purchaser and B▇▇▇▇the Sellers;
(bii) by Seller the Purchaser (so long as the Purchaser is not then in material breach of any of its representations, warranties or covenants contained in this Agreement), if (A) there has been a breach of any of the waiting period under Sellers’ representations, warranties or covenants contained in this Agreement which would result in the HSR Act failure of the conditions set forth in Section 6.1(a) or Section 6.1(b), as applicable, to be satisfied, and which breach has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than been cured within ten (10) calendar days after written notice of such breach has been delivered to the HSR Termination Sellers from the Purchaser or cannot be cured by the Outside Date.; or (B) any other condition set forth in Section 6.1 remains unsatisfied by the Outside Date;
(ciii) by the Sellers (so long as the Sellers are not then in material breach of any of their representations, warranties or covenants contained in this Agreement), if (A) there has been a breach of any of the Purchaser’s representations, warranties or covenants contained in this Agreement which would result in the failure of a condition set forth in Section 6.2(a) or Section 6.2(b), as applicable, to be satisfied, and which breach has not been cured within ten (10) days after written notice of such breach has been delivered to the Purchaser from the Sellers or cannot be cured by the Outside Date; or (B) any other condition set forth in Section 6.2 remains unsatisfied by the Outside Date;
(iv) by either Seller the Purchaser or Buyer the Sellers, if there is in effect a Final Order restraining, enjoining or otherwise prohibiting the transactions contemplated by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and BuyerAgreement; provided, however, that the right to terminate this Agreement under this Section 11.1(cSection 7.1(a)(iv) shall will not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party party whose failure to fulfill any covenant or obligation under this Agreement has been is the cause of, of or resulted in, in the failure of the Closing to occur on action or before such dateevent described in this Section 7.1(a)(iv) occurring;
(ev) by either Seller the Purchaser if: (A) the Chapter 11 Cases are dismissed or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any converted into a case under Chapter 7 of the transactions contemplated by this Agreement, and such order, decree, ruling Bankruptcy Code; or other action shall not be subject to appeal (B) an examiner with expanded powers or shall have become final and unappealabletrustee is appointed in the Chapter 11 Cases; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;and
(fvi) by either Seller the Sellers or Buyer by giving written notice to the other Party Purchaser, if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to Sellers enter into an Alternative Acquisition Agreement a definitive agreement with respect to a Superior Proposal concurrently with an Alternative Transaction and the termination of this Agreement; orBankruptcy Court enters an Order approving an Alternative Transaction and such Alternative Transaction closes.
(b) This Agreement shall terminate automatically in the event that: (i) by either Seller the Purchaser is not chosen at the Auction to be the Successful Bidder or Buyer in Backup Bidder; or (ii) the event Purchaser is chosen at the Auction to be the Backup Bidder upon the expiration of a CFIUS Denialthe Backup Bid Expiration Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Clarus Therapeutics Holdings, Inc.)
Termination Events. Without prejudice to other remedies which may be available Anything contained in this Agreement to the Parties by Law or contrary notwithstanding (other than as provided in the last sentence of this Agreement, Section 11.1) this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the ClosingClosing Date:
(a) by mutual written consent of S▇▇▇▇▇ the Company (with the prior written consent of the Agent) and B▇▇▇▇;Buyer; or
(b) by Seller either the Company (with the prior written consent of the Agent) or Buyer:
(i) if the waiting period under Bankruptcy Court does not approve this Agreement for any reason or if a Governmental Authority issues a final, non-appealable Order permanently prohibiting the HSR Act transactions contemplated hereby; provided, however, that the right to terminate this Agreement pursuant to this Section 11.1(b)(i) shall not be available to any Party whose breach of any of its representations, warranties, covenants or agreements contained herein has not expired resulted in such failure to approve or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.such Order;
(cii) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date close of this Agreement business on September 10, 2018 (the “Termination Outside Date”), unless extended by written agreement of Seller and Buyer; provided, however, that the right to terminate this Agreement under pursuant to this Section 11.1(c11.1(b)(ii) shall not be available to any Party if whose breach of any of such Party’s representations, warranties, covenants, or agreements contained herein results in the failure of the Closing to occur be consummated by such time;
(iii) if the Sale Order is vacated; or
(c) by Buyer:
(i) in the event of any breach of any of Sellers’ agreements, covenants, representations or warranties contained herein that would result in the failure of a condition set forth in Section 9.1 or 9.2 to be satisfied, and Sellers have failed to cure such breach by the Termination earlier of (A) the Outside Date was primarily due to and (B) the date that is 15 days after receipt of Buyer’s written notice of such breach; provided, however, that Buyer is then not in material breach or violation of any of Buyer’s representations, warranties, covenants or agreements contained in this Agreement by such Party;Agreement; or
(d) by either Seller or Buyer by giving the Company (with the prior written notice to consent of the other Party if such other Party has breached its representationsAgent):
(i) except as provided in Section 11.1(d)(ii), warrantiesin the event of any breach of any of Buyer’s agreements, covenants, agreements representations or other obligations hereunder in a manner warranties contained herein that would reasonably be expected to cause any result in the failure of a condition of such Party giving notice set forth in Article VIII not Section 10.1 or 10.2 to be satisfied andsatisfied, except in and the case failure of a breach of Buyer’s obligation Buyer to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, cure such breach has not been cured within by the earlier of (iA) thirty the Outside Date and (30B) the date that is 15 days after receipt of Sellers’ written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure notice of such breach; provided, however, that the right to terminate this Agreement under this Section 11.1(d) shall Sellers are not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation then in material breach of any of the transactions contemplated by this Agreementtheir representations, and such orderwarranties, decree, ruling covenants or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 agreements contained in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(iii) if (A) the conditions to Closing in Article IX have been satisfied (or waived by either Seller or Buyer in the event of a CFIUS Denial.Buyer), other than those conditions that by their nature can only be satisfied at Closing,
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available By notice given prior to the Parties by Law or this AgreementClosing, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by mutual written consent agreement of S▇▇▇▇▇ Purchaser and B▇▇▇▇Seller;
(b) by either Purchaser or Seller if (i) the waiting period under the HSR Act has Closing Date shall not expired have occurred on or terminated by February 18before October 31, 2025 2005 (as may be extended as provided below, the “HSR Termination Outside Date”) and (ii) the party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately caused the failure to consummate the Transactions on or before such date, except that if, as of October 31, 2005, all conditions set forth in Section 6.1, Section 6.2 and Section 6.3 of this Agreement have been satisfied or waived (other than those that are to be satisfied by action taken at the Closing) other than the conditions set forth in Section 6.1(b) and/or Section 6.2(d), then either Purchaser or Seller may extend the Outside Date to January 31, 2006, by giving providing written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.other party on or before October 31, 2005;
(c) by either Purchaser or Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the Party seeking termination hereunder and consummation of the Transactions or (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or decree, ruling or taken any other action injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, Transactions and such order, decree, ruling or other action shall not be subject to appeal or injunction shall have become final and unappealable; provided, that non-appealable and the right party seeking to terminate this Agreement under pursuant to this clause shall have used all reasonable efforts to remove such injunction, order, decree or ruling;
(d) by Seller, if Purchaser or Purchaser Guarantor shall have breached or failed to perform in all material respects any of their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) cannot be cured by October 31, 2005 (or, in the case of the condition set out in Section 6.1(b) and/or Section 6.2(d), January 31, 2006) provided that Seller shall have given Purchaser not less than five (5) Business Days written notice stating Seller’s intention to terminate this Agreement pursuant to this Section 11.1(e7.1(d) and the basis for such termination;
(e) by Purchaser, if Seller or Seller Guarantor shall have breached or failed to perform in all material respects any of their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) cannot be available cured by October 31, 2005 (or, in the case of the condition set out in Section 6.1(b) and/or Section 6.2(d), January 31, 2006), provided that Purchaser shall have given Seller not less than five (5) Business Days written notice stating Purchaser’s intention to any Party if terminate the Agreement pursuant to this Section 7.1(e) and the basis for such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereundertermination;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);Purchaser in accordance with Exhibit D; or
(g) by either Seller or Buyer if the condition precedent in Section 6.2(h) is not satisfied (or waived in accordance with this Agreement) on or before September 30, 2005 and Seller Board shall not have breached in any material respect its obligations under this Agreement in any manner that shall have made a Change of Recommendation;
(h) by Seller at any time prior proximately caused the failure to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller satisfy such condition precedent on or Buyer in the event of a CFIUS Denialbefore such date.
Appears in 1 contract
Sources: Share Purchase Agreement (Valentia Telecommunications)
Termination Events. Without prejudice to other remedies which may be available Notwithstanding anything herein to the Parties by Law or this Agreementcontrary, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent agreement of S▇▇▇▇▇ Seller and B▇▇▇▇Buyer;
(b) by written notice of either Seller if or Buyer to such other Party if:
(i) Buyer is not the waiting period under the HSR Act Successful Bidder or is not or has not expired or terminated agreed to be the Alternate Bidder at the Auction;
(ii) the Closing has not occurred by February 18the close of business on June 1, 2025 2020 (the “HSR Termination Outside Date”); provided, if all conditions specified in Articles 9, 10 and 11 have been satisfied or waived as of the initial Outside Date (or, with respect to those conditions which, by their nature can only be satisfied at the Closing, would reasonably be capable of satisfaction as of such date), other than the conditions set forth in Section 10.03 and Section 10.01 (if the Order relates to the matters referenced in Section 10.03), then the Outside Date shall be further extended to September 1, 2020 (the “First Extended Outside Date”), by giving written notice to if Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either notifies Seller in writing on or Buyer by giving written notice prior to the other Party if initial Outside Date of its election to extend the Closing Outside Date to such date (such election shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”be at Buyer’s sole discretion), unless extended by written agreement of Seller and Buyer; provided, further, the Outside Date shall be further extended to December 1, 2020 if Buyer notifies Seller in writing on or prior to the First Extended Outside Date of its election to extend the Outside Date to such date (such election shall be at Buyer’s sole discretion); provided, further, that the right to a Party may not terminate this Agreement under pursuant to this Section 11.1(c12.01(b)(ii) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the Party is in material breach or violation of any of its representations, warranties, covenants or agreements contained herein and such material breach is the primary cause that the Closing has not occurred by the Outside Date (as may be extended); provided, further, that if the Marketing Period has begun but not completed by the Outside Date, then Buyer may elect, in this Agreement by such Partyits sole discretion, to extend the Outside Date to the last day of the Marketing Period;
(diii) there is in effect a Final Order by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition court of such Party giving notice set forth in Article VIII not to be satisfied and, except competent jurisdiction in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently United States restraining, enjoining or otherwise prohibiting the consummation Closing; provided that a Party may not terminate this Agreement pursuant to this Section 12.01(b)(iii) if such party is in material breach of any of its representations, warranties, covenants or agreements contained herein and such material breach is the primary cause or grounds for such Final Order;
(A) Seller enters into a definitive agreement providing for a Superior Proposal, and Buyer is not or has not agreed to be the Alternate Bidder at the Auction, or
(B) Seller enters into a definitive agreement providing for a Superior Proposal, Buyer is the Alternate Bidder (and has agreed to be the Alternate Bidder) at the Auction, and the closing of the sale of the relevant Assets to the Successful Bidder pursuant to such Superior Proposal has occurred; or
(v) if, after their respective entry, either the Bidding Procedures Order or Sale Order ceases to be in full force and effect.
(c) so long as Buyer is not in material breach of any of its representations, warranties, covenants or agreements contained herein, by Buyer by written notice to Seller if:
(i) (A) any Selling Entity breaches any representation or warranty or any covenant or agreement contained in this Agreement, (B) such breach would result in a failure of a condition set forth in Article 9 or Article 10 and (C) such breach has not been cured by the earlier of (1) ten (10) Business Days after the giving of written notice by Buyer to Seller of such breach and (2) the Outside Date; or
(ii) any Selling Entity (x) files a motion (without Buyer’s consent) to have the Bankruptcy Court enter an Order dismissing or converting the Bankruptcy Cases into cases under Chapter 7 of the Bankruptcy Code or appointing a trustee in the Bankruptcy Cases or appointing an examiner with enlarged power related to the operation of the Business (beyond those set forth in Section 1106(a)(3) or (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code or the occurrence of any of the transactions contemplated by this Agreementforegoing, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Asset Purchase Agreement
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time written notice given prior to or at the Closing, be terminated:
(a) 8.1.1 by mutual written consent of S▇▇▇▇▇ the Buyer and B▇▇▇▇the Sellers’ Representative;
(b) by Seller if the waiting period under the HSR Act has not expired 8.1.2 on or terminated by February 18after December 16, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) 2009 by either Seller the Sellers’ Representative or the Buyer by giving written notice to the other Party if the Closing shall has not have occurred by eight (8) months on or before such date;
8.1.3 on or after the 37th day following the date of this Agreement (Agreement, by either the “Termination Date”), unless extended by written agreement of Seller and BuyerSellers’ Representative or the Buyer if the Closing has not occurred on or before such date; provided, that the terminating party shall give the other party not less than two (2) Business Days notice of its intent to terminate this Agreement pursuant to this Section 8.1.3 and within such two (2) Business Day period will discuss with the other party or parties the basis upon which such notice was given and shall explore possible alternatives; provided, however, that the decision to terminate shall rest solely in the discretion of the notifying party; and provided, further that the right to terminate this Agreement under pursuant to this Section 11.1(c) 8.1.3 shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the a party that is then in breach or violation of any representationsrepresentation, warrantieswarranty, covenants covenant, agreement or agreements obligation contained in this Agreement by such PartyAgreement;
8.1.4 by the Sellers’ Representative, upon written notice, if (di) by either Seller a MasTec Material Adverse Effect has occurred, (ii) Buyer shall have breached any agreement, obligation or Buyer by giving written notice to covenant such that the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII Section 7.1 would not be satisfied, or (iii) all of the conditions set forth in Section 6 are satisfied (excluding conditions that, by their terms, cannot be satisfied until the Closing, but which would be reasonably capable of being satisfied at Closing) and Buyer fails to satisfy its obligations to be satisfied andcarried out at Closing under Section 1; provided, except that in the case of a (ii) if the breach of Buyer’s agreement, obligation or covenant is curable through the exercise of Buyer’s commercially reasonable efforts, then the Sellers’ Representative may not terminate this Agreement pursuant to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) this Section 8.1.4 for thirty (30) days after the Sellers’ Representative shall have given written notification thereof notice of such breach to Buyer (so long as Buyer continues to use commercially reasonable efforts to cure the breach during such period), it being understood that the Sellers’ Representative may not terminate this Agreement pursuant to this Section 8.1.4 if Buyer cures such breach within such thirty (30) day period;
8.1.5 by Buyer, upon written notice to the Party seeking termination hereunder and Sellers’ Representative, if (i) a Material Adverse Effect has occurred, (ii) Sellers or either Company shall have breached any agreement, obligation or covenant such that the Termination Datecondition set forth in Section 6.1 would not be satisfied, but(iii) all of the conditions set forth in Section 7 are satisfied (excluding conditions that, by their terms, cannot be satisfied until the Closing, but which would be reasonably capable of being satisfied at Closing) and Sellers and the Companies fail to satisfy all of their obligations to be carried out at Closing under Section 1, or (iv) if the Interim Financials, in each caseBuyer’s sole and absolute discretion, only as are unsatisfactory in any respect; provided that in the case of (ii) if the breach of Sellers’ or the Companies’ agreement, obligation or covenant is curable through the exercise of commercially reasonable efforts, then Buyer may not terminate this Agreement pursuant to this Section 8.1.5 for thirty (30) days after Buyer shall have given written notice of such breach to the Sellers’ Representative (so long as such other Party continues Sellers and/or the Companies continue to use its commercially reasonable best efforts to cure such breach; providedbreach during such period), it being understood that the right to Buyer may not terminate this Agreement under pursuant to this Section 11.1(d8.1.5 if Sellers or the Companies cure such breach within such thirty (30) day period; or
8.1.6 by Buyer or the Sellers if there shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been Legal Requirement that makes consummation of the cause ofpurchase of the Units illegal or otherwise prohibited, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree Order enjoining Buyer or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting Sellers from consummating the consummation of any purchase of the transactions contemplated by this Agreement, Units is entered and such order, decree, ruling or other action shall not be subject to appeal or order shall have become final and unappealablenonappealable; provided, provided that the right party seeking to terminate this Agreement under pursuant to this Section 11.1(e) provision shall not be available have used all commercially reasonable efforts to any Party if remove or vacate such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Mastec Inc)
Termination Events. Without prejudice to other remedies which may The occurrence of any one of the following events shall be available to the Parties by Law or a "TERMINATION EVENT" under this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) failure on the part of the Debtor to pay or disburse when due the amounts provided for herein;
(b) failure (i) by mutual written consent of Sthe Debtor, to observe or perform any term, covenant, condition or agreement set forth in ▇▇▇▇▇▇▇▇ and B▇.▇(▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) calendar days after the HSR Termination Date.
or (cn) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement or (the “Termination Date”), unless extended by written agreement ii) of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure representation or warranty of the Closing Debtor, the Seller or the Servicer contained herein or, in the Note Purchase Agreement, the Purchase Agreement or the Servicing Agreement to occur be true and correct in all material respects on any day when made or deemed made hereunder, or (iii) by the Termination Date was primarily due Debtor to observe or perform any other term, covenant, condition or agreement provided for herein or in the breach Note, the Note Purchase Agreement, the Servicing Agreement, the Purchase Agreement or violation of any representationsthe Interest Rate Hedge Agreement (other than those terms described in subsection 6.1(a) above) which failure, warranties, covenants or agreements contained in this Agreement by such Party;
(dA) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of clause (ii) above continues for a breach period of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after the earlier of (1) the date on which written notification thereof notice of such breach shall have been given to the Debtor, the Seller or the Servicer, by the Party seeking termination hereunder Company, the Deal Agent or the Collateral Agent, (2) the date on which the Debtor became aware of such breach or (3) the date on which the Debtor exercising reasonable care should have become aware of such breach, or (B) in the case of clause (iii) above continues for a period of thirty (30) days after the earlier of (1) the date on which written notice of such failure shall have been given to the Debtor by the Company, the Deal Agent, or the Collateral Agent, (2) the date on which the Debtor became aware of such failure or (3) the date on which the Debtor exercising reasonable care should have become aware of such failure;
(c) the Debtor, the Seller or the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Debtor, the Seller or the Servicer, as the case may be, or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Debtor, the Seller or the Servicer, as the case may be, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Debtor, the Seller or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of an applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or the Debtor, the Seller or the Servicer, as the case may be, shall become unable for any reason to pledge Collateral to the Collateral Agent in accordance with the provisions of this Agreement;
(i) the sum of (x) Net Investment and (y) accrued Carrying Costs exceeds the sum of (I) the Borrowing Base and (II) the amount on deposit in the Reserve Account for a period of 30 consecutive days; (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that Net Investment PLUS the right to terminate this Agreement under this Section 11.1(dAccrued Interest Component equals or exceeds the Facility Limit or (iii) shall not be available to a Party whose failure to fulfill the Net Investment at any obligation under this Agreement has been time equals or exceeds the cause of, or resulted in, the failure sum of the Closing to occur Principal Balance of Eligible Loans plus the amount on or before such date;deposit in the Reserve Account.
(e) by either Seller the Debtor shall enter into any merger, consolidation or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any conveyance transaction regardless of the transactions contemplated by this Agreementsurviving entity, and such orderor the Servicer shall enter into any merger, decree, ruling consolidation or other action shall conveyance transaction whereby it is not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereundersurviving entity;
(f) by either Seller or Buyer by giving written notice to any material adverse change in the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason operations of the failure Servicer which materially adversely affects the ability of the Servicer to obtain service the required vote upon a final vote taken at Receivables or to perform its obligations under the Stockholder Meeting Servicing Agreement (or any adjournment or postponement thereof at other agreement pursuant to which such vote was takenthe Servicer is acting as servicer of the Receivables);
(g) there shall be a payment default by either the Seller or Buyer if the Debtor under any material agreement for borrowed money to which the Seller Board or the Debtor is a Party or there shall have made be a Change Servicer Event of RecommendationDefault under the Servicing Agreement;
(h) by Seller at the Delinquency Ratio averaged over any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; orthree consecutive Collection Periods shall equal or exceed 10.00%;
(i) by either Seller (a) the Gross Default Ratio averaged over any three consecutive Collection Periods shall equal or Buyer exceed 16.00% or (b) the Recovery Ratio averaged over any three consecutive Collection Periods shall be less than 55%;
(j) the Collateral Agent shall fail for any reason to have a valid and perfected first priority security interest in the event Receivables and the proceeds thereof;
(k) there shall be a material breach by the Seller of its obligations under the Purchase Agreement;
(i) a final judgment for the payment of money in excess of $1,000,000 shall have been rendered against the Seller by a court of competent jurisdiction and the Seller shall not have either: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedeas or otherwise) during the pendency of such appeal or (ii) the Seller shall have made payments of amounts in excess of $1,000,000 in settlement of any litigation;
(m) the weighted average APR of the Receivables is less than 17.0%;
(n) the weighted average remaining term to maturity on the Receivables is greater than 60 months;
(o) the Servicer's long-term debt rating falls below A-/A3 and a successor servicer acceptable to the Deal Agent is not in place within 60 days;
(p) the long-term debt rating of any active provider of an Interest Rate Hedge Agreement is below A-/A3 and a successor to such provider acceptable to the Deal Agent is not in place or collateral acceptable to the Deal Agent has not been posted, in each case, within 10 business days;
(q) the occurrence of a CFIUS DenialWind-Down Event which is not cured within 90 days.
Appears in 1 contract
Sources: Security Agreement (First Investors Financial Services Group Inc)
Termination Events. Without prejudice By notice given prior to other remedies which may be available or at the Closing, subject to the Parties by Law or this AgreementSection 9.2, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by mutual mutual, written consent Consent of S▇▇▇▇▇ Seller and B▇▇▇▇;Buyer; or
(b) (i) by Seller Buyer if any of the waiting period conditions in Article 7 have not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Buyer to comply with its obligations under the HSR Act this Agreement) and Buyer has not expired waived such condition on or terminated before the Closing Date; or (ii) by February 18Seller, 2025 if any of the conditions in Article 8 have not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the “HSR Termination failure of any Seller to comply with their obligations under this Agreement) and Seller has not waived such condition on or before the Closing Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.; or
(c) by either Buyer or Seller or Buyer by giving written notice of termination to the other Party party, if there shall have been a material breach of any of the Closing shall not have occurred by eight (8) months following covenants or agreements or any of the date of representations or warranties set forth in this Agreement on the part of the other party, which breach is not cured within ten (10) days following written notice given by the “Termination Date”)terminating party to the party committing such breach, unless extended or which breach by written agreement of Seller and Buyerits nature cannot be cured prior to the Closing; provided, however, that the right to terminate this Agreement under this Section 11.1(c9.1(c) shall not be available to any Party if such failure of at the Closing to occur by time the Termination Date was primarily due to the terminating party is in material breach or violation of any representationsrepresentation, warrantieswarranty, covenants covenant or agreements other agreement contained in this Agreement by such Party;herein; or
(d) by either Buyer or Seller or Buyer by giving upon written notice to the other Party other, if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay shall not have taken place on or before September 1, 2005; provided, that this date shall automatically be extended by sixty (60) days if the Closing Cash Consideration in accordance with parties are unable to consummate the terms of Article VIII, such breach Contemplated Transactions because HSR Consent has not yet been cured within the earlier obtained (regardless of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such whether all other Party continues conditions to use its reasonable best efforts to cure such breachClosing have been satisfied); provided, further, that the right to terminate this Agreement under this Section 11.1(d9.1(d) shall not be available to a Party any party whose failure to fulfill any obligation comply with its obligations under this Agreement has been the cause of, of or resulted in, in the failure of the Closing to occur on or before such date;time; or
(e) by either Seller or Buyer by giving written notice Buyer, pursuant to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation terms of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableSection 5.9; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;or
(f) by either Seller or Buyer by giving written notice Buyer, pursuant to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason terms of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takenSection 7.9(a);; or
(g) by either Seller or Buyer if Buyer, pursuant to the Seller Board shall have made a Change terms of Recommendation;Section 5.18; or
(h) by Seller at any time prior Seller, pursuant to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial5.18(d).
Appears in 1 contract
Sources: Asset Purchase Agreement (Regal Entertainment Group)
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time written notice given prior to or at the Closing, be terminated:
(a) by 8.1.1 By mutual written consent of S▇▇▇▇▇ Buyer and B▇▇▇▇Sellers’ Representative;
(b) by Seller if the waiting period under the HSR Act has not expired 8.1.2 on or terminated by February 18after December 31, 2025 (the “HSR Termination Date”)2013, by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller Sellers’ Representative or Buyer by giving written notice to the other Party if the Closing shall has not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyeron or before such date; provided, that the terminating party shall give the other party not less than two (2) Business Days’ notice of its intent to terminate this Agreement pursuant to this Section 8.1.2 and within such two (2) Business Day period will discuss with the other party or parties the basis upon which such notice was given and shall explore possible alternatives; provided, however, that the decision to terminate shall rest solely in the discretion of the notifying party; and provided, further that (i) the right to terminate this Agreement under pursuant to this Section 11.1(c) 8.1.2 shall not be available to a party that is then in breach in any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation material respect of any representationsrepresentation, warrantieswarranty, covenants covenant, agreement or agreements obligation contained in this Agreement by and (ii) Sellers’ Representative’s right to terminate this Agreement pursuant to this Section 8.1.2 shall not be available if Closing shall not have occurred on or prior to November 30, 2013 solely because the condition contained in Section 6.10 shall not have been satisfied or waived on or prior to such Party;
date, except that Sellers’ Representative may terminate this Agreement pursuant to this Section 8.1.2 (d) by either Seller or Buyer by giving written notice subject to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice proviso set forth in Article VIII the immediately preceding clause (i)) if (y) Closing shall not have occurred on or prior to February 28, 2014 or (z) a Gaming Authority shall have determined, in a writing delivered to Buyer, not to issue a Key Gaming Approval to Buyer, and on or prior to the fifth (5th) Business Day following Buyer’s receipt of such determination, Buyer shall not have delivered to Sellers’ Representatives a request for a Withdrawn Consent with respect to such Key Gaming Approval (provided, that, Sellers’ Representative may not terminate this Agreement pursuant to this clause (z) if Buyer uses its commercially reasonable efforts to challenge such determination, unless and until such time as such determination is subsequently upheld pursuant to the entry of a final, binding and non-appealable order issued, made or rendered by a court of competent jurisdiction);
8.1.3 by Sellers’ Representative, upon written notice, if (i) one or more of the representations and warranties of Buyer shall have become untrue such that the condition set forth in Section 7.1 would not be satisfied, (ii) Buyer shall have breached any agreement, obligation or covenant such that the condition set forth in Section 7.2 would not be satisfied, or (iii) all of the conditions set forth in Section 6 are satisfied (excluding conditions that, by their terms, cannot be satisfied anduntil the Closing, except but which would be reasonably capable of being satisfied at Closing) and Buyer fails to satisfy its obligations to be carried out at Closing under Section 1; provided, that in the case of a (i) or (ii) if the inaccuracy in Buyer’s representations and warranties or the breach of Buyer’s agreement, obligation to effect or covenant is curable through the Closing and pay the Closing Cash Consideration in accordance with the terms exercise of Article VIIIBuyer’s commercially reasonable efforts, such breach has then Sellers’ Representative may not been cured within the earlier of (i) terminate this Agreement for thirty (30) days after Sellers’ Representative shall have given written notification thereof notice of such inaccuracy or breach to Buyer (so long as Buyer continues to use commercially reasonable efforts to cure the inaccuracy or breach during such period), it being understood that Sellers’ Representative may not terminate this Agreement if Buyer cures such inaccuracy or breach within such thirty (30) day period;
8.1.4 by Buyer, upon written notice to Sellers’ Representative, if (i) one or more of the Party seeking termination hereunder representations and warranties of Sellers and/or the Company shall have become untrue such that the condition set forth in Section 6.1 would not be satisfied, (ii) Sellers or the Termination DateCompany shall have breached any agreement, but, in each case, only as long as obligation or covenant such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this condition set forth in Section 11.1(d) shall 6.2 would not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause ofsatisfied, or resulted in, the failure (iii) all of the conditions set forth in Section 7 are satisfied (excluding conditions that, by their terms, cannot be satisfied until the Closing, but which would be reasonably capable of being satisfied at Closing) and Sellers and the Company fail to satisfy all of their obligations to be carried out at Closing to occur on under Section 1; or
8.1.5 by Buyer or before such date;
(e) by either Seller Sellers if there shall be any Legal Requirement that makes consummation of the purchase of the Shares illegal or Buyer by giving written notice to the other Party otherwise prohibited, or if any Governmental Authority shall have issued an order, decree Order enjoining Buyer or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting Sellers from consummating the consummation of any purchase of the transactions contemplated by this Agreement, Shares is entered and such order, decree, ruling or other action shall not be subject to appeal or order shall have become final and unappealablenonappealable; provided, provided that the right party seeking to terminate this Agreement under pursuant to this Section 11.1(e) provision shall not be available have used all commercially reasonable efforts to any Party if remove or vacate such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by the mutual written consent of S▇▇▇▇▇ Parent and B▇▇▇▇Purchaser, on the one hand, and the Company, on the other;
(b) by Seller Parent and Purchaser, on the one hand, or the Company, on the other, if the waiting period under the HSR Act Closing has not expired taken place on or terminated by February 18before 5:00 p.m. (Pacific time) on October 1, 2025 2021 (the “HSR Termination End Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right however, (i) Parent and Purchaser shall not be permitted to terminate this Agreement under pursuant to this Section 11.1(c10.1(b) shall not be available if (A) the failure to any Party if such failure of consummate the Closing to occur transactions contemplated by this Agreement by the Termination End Date was primarily due to the results from, or is caused by, a material breach or violation by Parent and Purchaser of any of their representations, warranties, covenants or agreements contained in herein or (B) the Company is seeking through a Legal Proceeding to specifically enforce this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, Section 12.10 while any such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder Legal Proceeding is still pending and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right Company shall not be permitted to terminate this Agreement under pursuant to this Section 11.1(d10.1(b) shall not be available to a Party whose if (x) the failure to fulfill any obligation under consummate the transactions contemplated by this Agreement has been by the cause ofEnd Date results from, or resulted inis caused by, a material breach by the failure Company or the Selling Shareholders of the Closing any of their respective representations, warranties, covenants or agreements contained herein or (y) Parent and Purchaser are seeking through a Legal Proceeding to occur on or before specifically enforce this Agreement in accordance with Section 12.10 while any such dateLegal Proceeding is still pending;
(ec) by either Seller Parent and Purchaser, on the one hand, or Buyer by giving written notice to the Company, on the other, if a court of competent jurisdiction or other Party if any Governmental Authority Body shall have issued an ordera final and nonappealable Order, decree or ruling or shall have taken any other action action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this AgreementAgreement such that the conditions set forth in Section 8.3 and Section 9.3 would not be satisfied; provided, and such orderhowever, decree, ruling or other action a Party shall not be subject permitted to appeal terminate this Agreement pursuant to this Section 10.1(c) if such Party (i) did not use reasonable best efforts to have such Order vacated prior to its becoming final and nonappealable or (ii) failed to fulfill in any material respect any of its obligations under Section 6.1(a) and Section 6.1(b);
(d) by Parent and Purchaser if: (i) any of the representations and warranties of the Company or the Selling Shareholders contained in this Agreement shall be inaccurate such that any condition set forth in Section 8.1 would not be satisfied; (ii) any of the covenants of the Company contained in this Agreement shall have become final and unappealablebeen breached such that the condition set forth in Section 8.2 would not be satisfied; or (iii) any Material Adverse Effect shall have occurred; provided, that however, in the right case of clauses “(i)” and “(ii)” only, an inaccuracy in any of the representations and warranties of the Company or the Selling Shareholders as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company is curable by the Company through the use of reasonable best efforts within fifteen (15th) Business Days after Parent’s or Purchaser’s notification to the Company in writing of the existence of such inaccuracy or breach (the period from such notification until the earlier of the fifteenth (15th) Business Day and the End Date, the “Company Cure Period”), then Parent and Purchaser may not terminate this Agreement under this Section 11.1(e10.1(d) as a result of such inaccuracy or breach prior to the expiration of the applicable Company Cure Period, provided the Company or the Selling Shareholders, as applicable, during the applicable Company Cure Period, continue to exercise reasonable best efforts to cure such inaccuracy or breach (it being understood that Parent and Purchaser may not terminate this Agreement pursuant to this Section 10.1(d) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the applicable Company Cure Period);
(e) by the Company if: (i) any of Parent’s and Purchaser’s representations and warranties contained in this Agreement shall be inaccurate such that the condition set forth in Section 9.1 would not be available satisfied; or (ii) if any of Parent’s and Purchaser’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 9.2 would not be satisfied; provided, however, if an inaccuracy in any of Parent’s and Purchaser’s representations and warranties as of a date subsequent to any Party the date of this Agreement or a breach of a covenant by Parent and Purchaser is curable by Parent and Purchaser through the use of reasonable best efforts within fifteen (15th) Business Days after the Company’s notification to Parent and Purchaser in writing of the existence of such inaccuracy or breach (the period from such notification until the earlier of the fifteenth (15th) Business Day and the End Date, the “Purchaser Cure Period”), then the Company may not terminate this Agreement under this Section 10.1(e) as a result of such inaccuracy or breach prior to the expiration of the Purchaser Cure Period, provided Parent and Purchaser, during the Purchaser Cure Period, continue to exercise reasonable best efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 10.1(e) with respect to such inaccuracy or breach if such order, decree, ruling inaccuracy or other Proceeding was caused by or resulted from breach is cured prior to the failure expiration of such Party to perform any of its obligations hereunder;the Purchaser Cure Period); or
(f) by either Seller or Buyer the Company if: (i) the conditions set forth in Section 8 (other than those conditions that by giving their nature are to be satisfied by action taken at the Closing, but subject to the satisfaction thereof) have been and continue to be satisfied; (ii) the Company has irrevocably confirmed by written notice to Parent and Purchaser that the other Party if the Stockholder Meeting shall conditions set forth in Section 9 have been held and completed and satisfied (other than those conditions that by their nature are to be satisfied by action taken at the Stockholder Approval Closing) or that it is willing to waive any unsatisfied conditions set forth in Section 9; (iii) the transactions contemplated by this Agreement shall not have been obtained by reason consummated within three (3) Business Days after the later of the failure delivery of such notice and the day the Closing is required to obtain occur pursuant to Section 1.9(a); and (iv) the required vote upon a final vote taken at Company and each Selling Shareholder stands ready, willing and able to consummate the Stockholder Meeting (or any adjournment or postponement thereof at which transactions contemplated by this Agreement and the Company and each Selling Shareholder is prepared to take such vote was taken);
(gactions within its control to cause the Closing to occur; provided, however, notwithstanding anything in Section 10.1(b) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Datecontrary, if Seller has complied with no Party shall be permitted to terminate this Agreement pursuant to Section 10.1(b) during such three Business Day period following delivery of the terms of Section 7.3 notice referred to in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
clause (iii) by either Seller or Buyer in the event of a CFIUS Denialabove.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may The occurrence of any one of the following events shall be available to the Parties by Law or a "TERMINATION EVENT" under this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) failure on the part of the Debtor to pay or disburse when due the amounts provided for herein;
(b) failure (i) by mutual written consent of Sthe Debtor, to observe or perform any term, covenant, condition or agreement set forth in Sections 3.2(a), (d), (e), (f), (g), (h), (i), (j), (l), (m), and (n) ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and B▇▇ (▇▇) ▇▇ ▇▇▇ ▇▇▇▇;
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇y of the Debtor, the Seller or the Servicer contained herein or, in the Note Purchase Agreement, the Purchase Agreement or the Servicing Agreement to be true and correct in all material respects on any day when made or deemed made hereunder, or (biii) by Seller if the waiting period under Debtor to observe or perform any other term, covenant, condition or agreement provided for herein or in the HSR Act has not expired Note, the Note Purchase Agreement, the Servicing Agreement, the Purchase Agreement or terminated by February 18the Interest Rate Cap (other than a term addressed in clause (i) above) which, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of clause (ii) above continues for a breach period of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after the earlier of (u) the date on which written notification thereof notice of such breach shall have been given to the Debtor, the Seller or the Servicer, by the Party seeking termination hereunder Company, the Surety Bond Provider or the Collateral Agent, (v) the date on which the Debtor became aware of such breach or (w) the date on which the Debtor exercising reasonable care should have become aware of such breach, or which, in the case of clause (iii) above continues for a period of thirty (30) days after the earlier of (x) the date on which written notice of such failure shall have been given to the Debtor by the Company, the Surety Bond Provider, or the Collateral Agent, (y) the date on which the Debtor became aware of such failure or (z) the date on which the Debtor exercising reasonable care should have become aware of such failure;
(c) the Debtor, the Seller or the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Debtor, the Seller or the Servicer, as the case may be, or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Debtor, the Seller or the Servicer, as the case may be, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Debtor, the Seller or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of an applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or the Debtor, the Seller or the Servicer, as the case may be, shall become unable for any reason to pledge Collateral to the Collateral Agent in accordance with the provisions of this Agreement;
(i) the Net Investment exceeds 91.0% of the sum of the Borrowing Base PLUS the amount on deposit in the Reserve Account for 30 consecutive days; (ii) the Termination Date, but, in each case, only as long as such other Party continues Net Investment PLUS the aggregate interest component of all Related Commercial Paper issued to use its reasonable best efforts to cure such breach; provided, that fund or refinance the right to terminate this Agreement under this Section 11.1(dNet Investment equals or exceeds the Facility Limit or (iii) shall not be available to a Party whose failure to fulfill the Net Investment at any obligation under this Agreement has been time equals or exceeds the cause of, or resulted in, the failure sum of the Closing to occur Borrowing Base plus the amount on or before such datedeposit in the Reserve Account;
(e) by either Seller the Debtor shall enter into any merger, consolidation or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any conveyance transaction regardless of the transactions contemplated by this Agreementsurviving entity, and such orderor the Servicer shall enter into any merger, decree, ruling consolidation or other action shall conveyance transaction whereby it is not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereundersurviving entity;
(f) by either Seller or Buyer by giving written notice to any material adverse change in the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason operations of the failure Servicer which materially adversely affects the ability of the Servicer to obtain service the required vote upon a final vote taken at Receivables or to perform its obligations under the Stockholder Meeting Servicing Agreement (or any adjournment or postponement thereof at other agreement pursuant to which such vote was takenthe Servicer is acting as servicer of the Receivables);
(g) there shall be a payment default by either the Seller or Buyer if the Debtor under any material agreement for borrowed money to which the Seller Board or the Debtor is a Party or there shall have made be a Change Servicer Event of RecommendationDefault under the Servicing Agreement;
(h) by Seller at the Delinquency Ratio averaged over any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; orthree consecutive Collection Periods shall equal or exceed 6.00%;
(i) by either Seller the Gross Default Ratio averaged over any three consecutive Collection Periods shall equal or Buyer exceed 12.00%;
(j) the Collateral Agent shall fail for any reason to have a valid and perfected first priority security interest in the Receivables and the proceeds thereof;
(k) there shall be a material breach by the Seller of its obligations under the Purchase Agreement;
(l) on and after the Remittance Date next following the fourth Collection Period after the Closing Date, the annualized Net Default Ratio averaged over any three consecutive Collection Periods is greater than or equal to 5.00%;
(i) a final judgment for the payment of money in excess of $1,000,000 shall have been rendered against the Seller by a court of competent jurisdiction and the Seller shall not have either: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedeas or otherwise) during the pendency of such appeal or (ii) the Seller shall have made payments of amounts in excess of $1,000,000 in settlement of any litigation;
(n) the weighted average APR of the Loans is less than 17.5%;
(o) the weighted average remaining term to maturity on the Receivables is greater than 45 months;
(p) a draw is made under the Surety Bond;
(q) the Surety Bond Provider shall have given notice that an event of default has occurred and is continuing under the Insurance Agreement;
(r) the term of the Surety Bond is not of the term required by the Company (which term shall be at least equal to the term of the latest maturing Receivable in the facility plus 90 days);
(s) the Servicer's long-term debt rating falls below A-/A3 and a CFIUS Denialsuccessor servicer acceptable to the Surety Bond Provider is not in place within 60 days;
(t) the long-term debt rating of any active provider of an Interest Rate Cap is below A-/A3 and a successor to such provider acceptable to the Surety Bond Provider is not in place or collateral acceptable to the Surety Bond Provider has not been posted, in each case, within 10 business days;
(u) the outstanding principal balance of Receivables originated under the Seller's Participating Program exceeds 10% of the Borrowing Base;
(v) the facility no longer carries a shadow rating of at least BBB- from S&P or at least Baa3 from Moody's; and
(w) the occurrence of a Wind-Down Ev▇▇▇ ▇▇▇ch is not cured within 35 days.
Appears in 1 contract
Sources: Security Agreement (First Investors Financial Services Group Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇▇ and B▇▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight on or before the date that is nine (8) 9) months following the date of this Agreement (the “Termination Date”); provided, unless that (i) if on such date, the conditions to Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.1(c), or Section 7.1(d) have not been satisfied but all other conditions to Closing set forth in Section 7.1, Section 7.2 and Section 7.3 shall be satisfied or waived (in writing) or shall be capable of being satisfied or waived on such date, then the Termination Date shall be automatically extended by written agreement six (6) months, without any action on the part of Seller the Parties, and Buyersuch date shall become the “Termination Date” for the purposes of this Agreement, and (ii) if on the date contemplated by the foregoing sub-clause (i), the conditions to Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.1(c), or Section 7.1(d) have not been satisfied but all other conditions to Closing set forth in Section 7.1, Section 7.2 and Section 7.3 shall be satisfied or waived (in writing) or shall be capable of being satisfied or waived on such date, then the Termination Date shall be automatically extended by an additional three (3) months, without any action on the part of the Parties, and such date shall become the “Termination Date” for the purposes of this Agreement; provided, that the right to terminate this Agreement under this Section 11.1(csubsection (b) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(dc) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached any of its representations, warranties, covenants, covenants or agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII VII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;or
(ed) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(esubsection (d) shall not be available to any Party if such order, decree, ruling or other Proceeding Action was caused by or resulted from primarily due to the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Consolidated Edison Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time prior to the Closingabandoned:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the Parties, if the Board of Directors (or a duly authorized committee thereof) of each Party so determines;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by after February 1829, 2025 2016 (the “HSR Termination Outside Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer any Party by giving written notice to the other Party if the Closing shall not have been occurred by eight (8) months following on or prior to the date of Outside Date; provided that the right to terminate this Agreement under this Section 10.1(b) shall not be available to any Party whose failure to perform any of its obligations under this Agreement has resulted in the failure of the Closing to occur on or before such date; provided, further, neither Party shall have any right to terminate this Agreement pursuant to this Section 10.1(b) during the pendency of a Proceeding by the other Party for specific performance to consummate the transactions contemplated hereby (including to effect the “Termination Closing in accordance with Section 8.1) pursuant to Section 11.7 hereof;
(c) by either Party by notice to the other Party, if (i) a Governmental Authority of competent jurisdiction shall have issued a nonappealable final order, decree or ruling or taken any other nonappealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the Purchase Transaction or the transactions contemplated by this Agreement to occur on the Closing Date”); provided that neither Party shall have the right to terminate this Agreement pursuant to this Section 10.1(c)(i) if such Party’s failure to perform its obligations under this Agreement has resulted in such order, unless extended decree or ruling or other action or (ii) any U.S. federal or state Law has been enacted that would make the consummation of the transactions contemplated by this Agreement illegal;
(d) by Seller, if there has been a breach of any representation or warranty set forth in Article 5, or a breach or failure to perform any covenant or agreement on the part of Buyer set forth in this Agreement, which breach or failure to perform (i) would cause the conditions set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied, and (ii) shall not have been cured within 20 Business Days (or by the Outside Date, if earlier) following receipt by Buyer of written agreement notice of Seller and Buyersuch breach or failure to perform from Seller; provided, that the right to terminate this Agreement under pursuant to this Section 11.1(c10.1(d) shall will not be available to any Party Seller if such failure of the Closing to occur by the Termination Date was primarily due to the Seller is then in breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Partythat any condition set forth in Section 7.3(a) or Section 7.3(b) is incapable of being satisfied;
(de) by either Seller Buyer, if there has been a breach of or Buyer by giving written notice failure to the other Party if such other Party has breached its representations, warranties, covenants, agreements perform any representation or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice warranty set forth in Article VIII 4, or a breach or failure to perform any covenant or agreement on the part of Seller set forth in this Agreement, which breach or failure to perform (i) would cause the conditions set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied andsatisfied, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) shall not have been cured within 20 Business Days (or by the Termination Outside Date, but, in each case, only as long as if earlier) following receipt by Seller of written notice of such other Party continues breach or failure to use its reasonable best efforts to cure such breachperform from Buyer; provided, that the right to terminate this Agreement under pursuant to this Section 11.1(d10.1(e) shall will not be available to a Party whose failure to fulfill Buyer if Buyer is then in breach of any obligation under representations, warranties, covenants or agreements contained in this Agreement has been the cause of, such that any condition set forth in Section 7.2(a) or resulted in, the failure Section 7.2(b) is incapable of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealablebeing satisfied; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;or
(f) by either Seller, if (i) Buyer shall have failed to consummate the Purchase Transaction within two Business Days after the date on which the Closing should have occurred pursuant to Section 8.1, (ii) all the conditions set forth in Section 7.1 and Section 7.3 would have been satisfied if the Closing were to have occurred at such time (other than those conditions that by their terms are to be satisfied by actions taken at the Closing provided such conditions would have been satisfied as of such date) and (iii) Seller or Buyer by giving shall have given written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken Buyer at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time least two Business Days prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this AgreementAgreement pursuant to this Section 10.1(f) (which notice may be given on the date the Closing should have occurred) that Seller stands ready, willing and able to consummate the Purchase Transaction (subject to the satisfaction or waiver of all of the conditions set forth in Section 7.2); or
(iprovided that during such period of two Business Days following the date the Closing should have occurred pursuant to Section 8.1, no Party shall be entitled to terminate this Agreement pursuant to this Section 10.1(f) by either and Seller or cooperates with Buyer in to effect the event of a CFIUS DenialClosing.
Appears in 1 contract
Sources: Purchase Agreement (Symantec Corp)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this (a) This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(ai) by the mutual written consent agreement of S▇▇▇▇▇ the Purchaser and B▇▇▇▇the Seller;
(bii) by Seller if the waiting period under Purchaser or the HSR Act has not expired Seller: on or terminated by February 18after October 1, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party 2007 if the Closing shall not have occurred by eight (8) months following the close of business on such date, provided that such date of this Agreement (the “Termination Date”)may, unless from time to time, be extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
either party (d) by either Seller or Buyer by giving with written notice to the other Party if such other Party has breached its representationsparty) up to and including October 15, warranties2007, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall terminating or extending party may not be available to a Party whose failure to fulfill in default of any obligation under this Agreement has been the cause of, or resulted in, of its obligations hereunder and may not have caused the failure of the Closing transactions contemplated by this Agreement to occur have occurred on or before such date;
(e) by either Seller ; or Buyer by giving written notice to the other Party if any Governmental Authority there shall have issued an order, decree or ruling or taken any other action permanently be in effect a final nonappealable order of a governmental body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby; it being agreed that the parties hereto shall promptly appeal any adverse determination which is appealable (and pursue such appeal with reasonable diligence);
(iii) by the Purchaser if there is a breach of any representation or warranty set forth in Article IV or any covenant or agreement to be complied with or performed by Seller pursuant to the terms of this Agreement;
(iv) by the Seller if there is a breach of any representation or warranty set forth in Article V or of any covenant or agreement to be complied with or performed by the Purchaser pursuant to the terms of this Agreement.
(b) Upon the occurrence of any valid termination event set forth in this Section 9.3, the Purchaser and/or Seller, as applicable, shall deliver written notice to the non-terminating party. Upon delivery of such notice, this Agreement shall terminate and the transfer of the Company Shares contemplated hereby shall be deemed to have been abandoned without further action by Buyer or Seller. Upon such termination, the Purchaser shall deliver or destroy all confidential information regarding Seller, Seller shall deliver or destroy all confidential information related to the Purchaser to which Seller had access in connection with the negotiation of this Agreement and the consummation of the transactions contemplated by hereby.
(c) In the event that this AgreementAgreement is validly terminated as provided in this Section 9.3, then each of the parties shall be relieved of their respective duties and obligations arising under this Agreement after the date of such termination and such order, decree, ruling termination shall be without liability to the Purchaser or other action shall not be subject to appeal or shall have become final and unappealableSeller; provided, however, that nothing in this Section 9.3 shall relieve the right to terminate Purchaser or Seller of any liability for any willful breach of this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time occurring prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the proper termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to 15.1 Each Supplier agrees that any of the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
following events as defined below (a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the a “Termination DateEvent”), unless extended by written agreement of Seller and Buyer; provided, that ) shall give Purchaser the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained exercise other remedies provided in this Agreement by such Party;Article 16 below:
(da) by either Seller A Supplier becomes insolvent, becomes the subject of a voluntary or Buyer by giving written notice involuntary bankruptcy proceeding or any other form of winding up or liquidation proceeding, enters into any arrangement with creditors or otherwise is unable to the other Party if such other Party has breached pay its representations, warranties, covenants, agreements or other debts as they become due; or
(b) A Supplier fails to perform any of its obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing Sections 19 and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, 27 under this Agreement.
15.2 Purchaser agrees that Suppliers shall have the right to terminate this Agreement under this in the event Purchaser fails to perform its payment obligations as set forth in Section 11.1(d) 7 and such failure remains unremedied for fifteen days after written notice thereof shall not be available to a Party whose failure to fulfill have been given.
15.3 For any obligation under alleged material breach of this Agreement has been the cause of, or resulted inother than those set forth in Sections 15.1 and 15.2 above, the failure of the Closing to occur on or before Party alleging any such date;
(e) by either Seller or Buyer by giving written notice to breach will provide the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any notice in writing within thirty (30) days of the transactions contemplated by this Agreement, conduct or action giving rise to the breach. That notice will specify the nature of the breach and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate provision of this Agreement under this Section 11.1(ethat is claimed to have been breached. Over the next thirty (30) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure days following delivery of such a notice, the Parties agree to meet and confer, either in person or otherwise, in good faith to resolve any disputed issues or agree on a course of action to resolve any issues. In the event the Parties are unable to mutually agree, either Party may submit the matter to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice binding arbitration in accordance with Article 24 below. The Parties agree to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which mutually request that such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied arbitration proceedings be expedited with the terms intent of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination resolving any such dispute within forty-five (45) days of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialParty’s request for arbitration.
Appears in 1 contract
Sources: Supply Agreement (Nautilus, Inc.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time prior to the Closingabandoned:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the Parties, if the board of directors (or a duly authorized committee thereof) of each Party so determines;
(b) by Seller if after the waiting period under date that is 12 months following the HSR Act has not expired or terminated by February 18, 2025 Agreement Date (the “HSR Termination Outside Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) any Party by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight on or prior to the Outside Date; provided that (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that x) the right to terminate this Agreement under this Section 11.1(c10.1(b) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill perform any obligation of its obligations under this Agreement has been the principal cause of, or resulted in, the failure of the Closing to occur on or before such datedate and (y) the right to terminate this Agreement under this Section 10.1(b) shall not be available to the Arion Entities if, prior to the Outside Date, (i) Arion fails to obtain the full Required Amount, (ii) Sphinx is otherwise entitled to terminate this Agreement pursuant to Section 10.1(f) and (iii) Sphinx has provided written notice to Arion that it has elected to effect the Purchase Transaction pursuant to the alternative structure referenced in Section 6.16(g) (such notice the, “Alternative Structure Notice”) and is negotiating in good faith with Arion to make such changes to the organizational and other related documents thereof necessary to implement such alternative structure; provided, further that, notwithstanding the foregoing clause (y)(iii), the Arion Entities shall be entitled to terminate this Agreement under this Section 10.1(b) if the Outside Date has passed and the Parties fail to consummate the Closing contemplated by the Alternative Structure Notice previously delivered to Arion within ten Business Days after Sphinx has provided such notice (unless such failure is a result of Arion’s failure to reasonably cooperate in good faith to make such necessary changes);
(ec) by either Seller or Buyer Party by giving written notice to the other Party Party, if any (i) a Governmental Authority of competent jurisdiction shall have issued an a nonappealable final order, decree or ruling or taken any other action nonappealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement to occur on the Closing Date; provided that neither Party shall have the right to terminate this Agreement pursuant to this Section 10.1(c) if such Party’s failure to perform its obligations under this Agreement has been the principal cause of, or resulted in, such order, decree or ruling or other action or (ii) any U.S. federal or state Law has been enacted that would make the consummation of the transactions contemplated by this Agreement illegal;
(d) by Sphinx, if there has been a breach of any representation or warranty set forth in Article 5, or a breach of or failure to perform any covenant or agreement on the part of Arion set forth in this Agreement, which breach or failure to perform (i) would cause the conditions set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied if the date on which such breach or failure to perform was the Closing Date and such order, decree, ruling or other action (ii) shall not be subject to appeal have been cured within 20 Business Days (or shall have become final and unappealableby the Outside Date, if earlier) following receipt by Arion of written notice of such breach from Sphinx; provided, provided that the right to terminate this Agreement under pursuant to this Section 11.1(e10.1(d) shall will not be available to Sphinx if Sphinx is then in breach of, or has failed to perform with respect to, any Party representations, warranties, covenants or agreements contained in this Agreement such that any condition set forth in Section 7.3(a) or Section 7.3(b) is incapable of being satisfied;
(e) by Arion, if such orderthere has been a breach of any representation or warranty set forth in Article 4, decree, ruling or other Proceeding was caused by a breach of or resulted from the failure of such Party to perform any covenant or agreement on the part of its obligations hereunder;Sphinx set forth in this Agreement, which breach or failure to perform (i) would cause the conditions set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied if the date on which such breach or failure to perform was the Closing Date and (ii) shall not have been cured within 20 Business Days (or by the Outside Date, if earlier) following receipt by Sphinx of written notice of such breach or failure to perform from Arion; provided that the right to terminate this Agreement pursuant to this Section 10.1(e) will not be available to Arion if Arion is then in breach of, or has failed to perform with respect to, any representations, warranties, covenants or agreements contained in this Agreement such that any condition set forth in Section 7.2(a) or Section 7.2(b) is incapable of being satisfied; or
(f) by either Seller or Buyer by giving written notice Sphinx, if (i) Arion shall have failed to consummate the other Party Purchase Transactions within two Business Days after the date on which the Closing should have occurred pursuant to Section 8.1, (ii) all the conditions set forth in Section 7.1 and Section 7.3 would have been satisfied if the Stockholder Meeting Closing were to have occurred at such time (other than those conditions that by their terms are to be satisfied on the Closing Date; provided that such conditions would have been satisfied as of the date on which the Closing should have occurred pursuant to Section 8.1) and (iii) Sphinx shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure irrevocably confirmed in writing to obtain the required vote upon a final vote taken Arion at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time least two Business Days prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this AgreementAgreement pursuant to this Section 10.1(f) (which confirmation may be given on the date the Closing should have occurred) that Sphinx stands ready, willing and able to consummate the Purchase Transactions (subject to the satisfaction or waiver of all of the conditions set forth in Section 7.2); or
(iprovided that during such period of two Business Days following the date the Closing should have occurred pursuant to Section 8.1, no Party shall be entitled to terminate this Agreement pursuant to this Section 10.1(f) by either Seller or Buyer in and Sphinx cooperates with Arion to effect the event of a CFIUS DenialClosing.
Appears in 1 contract
Sources: Purchase Agreement (Symantec Corp)
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time written notice ------------------ given prior to or at the Closing, be terminated:
(a) by mutual written consent either Buyer or Sellers if a material Breach of S▇▇▇▇▇ any provision of this Agreement has been committed by the other party and B▇▇▇▇such Breach has not been waived;
(b1) by Seller Buyer if any of the conditions in Section 8.1 has not been ----------- satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other than through the failure of Buyer to comply with its obligations under this Agreement) and Buyer has not waived such condition on or before the Closing Date; or (2) by Sellers, if any of the conditions in Section ------- 8.2 has not been satisfied as of the Closing Date or if satisfaction of such a --- condition is or becomes impossible (other than through the failure of Sellers to comply with its obligations under this Agreement) and Sellers have not waived such condition on or before the Closing Date; provided, however, that in the -------- ------- event all of the conditions in Section 8.1 and Section 8.2 have been satisfied ----------- ----------- except (A) solely the condition with respect to obtaining any required consents, authorizations or required approvals under the HSR Act as set forth in Section ------- 8.1(c) and Section 8.2(c), respectively, and (B) such failure was not due to any ------ -------------- unreasonable delay by the non-terminating party in making any filings required under the HSR Act, such Closing Date shall be automatically extended to such date that is ten (10) days after the expiration or termination of any applicable waiting period under the HSR Act has not expired without action by the FTC or terminated the Antitrust Division to prevent consummation of this Agreement; provided, however, that in -------- ------- no event shall such Closing Date be extended beyond August 1, 1998 unless extended by February 18, 2025 (the “HSR Termination Date”), by giving written notice to mutual agreement of Buyer no later than ten (10) calendar days after the HSR Termination Dateand Sellers.
(c) by either Seller or mutual written consent of Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and BuyerSellers; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;or
(d) by either Seller Buyer or Buyer by giving written notice to the other Party Sellers if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within occurred (other than through the earlier failure of (i) thirty (30) days after written notification thereof by the Party any party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement to comply fully with its obligations under this Section 11.1(dAgreement) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before July 10, 1998 or such date;
(e) by either Seller or Buyer by giving written notice to later date as the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableparties may agree upon in writing; provided, however, -------- ------- that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and Closing has not occurred (1) solely because any applicable waiting period under the Stockholder Approval HSR Act shall not have been obtained expired or terminated and (2) did not result from any unreasonable delay by reason the non-terminating party in making any filings required under the HSR Act, such date shall be automatically extended such date that is ten (10) days after the expiration or termination of any applicable waiting period under the failure HSR Act without action by the FTC or the Antitrust Division to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination prevent consummation of this Agreement; or
(i) provided, however, -------- ------- that in no event shall such date be extended beyond August 1, 1998 unless extended by either Seller or the mutual agreement of Buyer in the event of a CFIUS Denialand Sellers.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may If any of the following events (each, a "Termination Event") shall occur and be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingcontinuing:
(a) by mutual the Borrower shall default in the payment of any amount required to be made under the terms of this Agreement and such failure continues unremedied for a period of three (3) Business Days after the due date set forth herein for such payment, or if no due date is specified, such failure continues for a period of 30 days after written consent of S▇▇▇▇▇ and B▇▇▇▇;request for such payment has been made; or
(b) by Seller if the waiting an Overcollateralization Shortfall exists and continues unremedied for a period under the HSR Act has not expired or terminated by February 18, 2025 of three (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (103) calendar days after the HSR Termination Date.Business Days; or
(c) by either Seller or Buyer by giving written notice to the other Party if amount of Advances Outstanding shall exceed the Closing shall not have occurred by eight Borrowing Base for more than three (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer3) Business Days; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;or
(d) by either Seller the Minimum Purchased Loan Balance is less than $105,000,000 for a period of three (3) Business Days; or
(e) a Required Equity Shortfall exists and continues unremedied for a period of three (3) Business Days; or
(i) the Borrower shall fail to perform or Buyer by giving written notice to the observe in any material respect any other Party if such other Party has breached its representations, warranties, covenants, agreements covenant or other obligations hereunder in a manner that would reasonably be expected to cause any condition agreement of such Party giving notice the Borrower set forth in Article VIII not this Agreement and any other Transaction Document to be satisfied andwhich it is a party, except or (ii) the Originator shall fail to perform or observe in the any material respect any term, covenant or agreement of such Originator set forth in any other Transaction Document to which it is a party, in each case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, when such breach has not been cured within the earlier of (i) failure continues unremedied for more than thirty (30) days after written notification notice thereof shall have been given by the Party seeking termination Deal Agent or the Collateral Custodian to such Person; or
(g) any representation or warranty made or deemed made hereunder and (ii) the Termination Date, but, shall prove to be incorrect in each case, only any material respect as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to time when the other Party if any Governmental Authority same shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreementbeen made, and such order, decree, ruling incorrect representation or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval warranty shall not have been obtained by reason eliminated or otherwise cured within a period of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting thirty (or any adjournment or postponement 30) days after written notice thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;been given by the Deal Agent or the Collateral Custodian to the Borrower; or
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement Insolvency Event shall occur with respect to a Superior Proposal concurrently with the termination of this AgreementBorrower; or
(i) a Servicer Termination Event occurs; or
(j) any Change-in-Control of the Borrower or Originator occurs; or
(k) the Borrower or the Originator defaults in making any payment required to be made under any material agreement for borrowed money to which either is a party and such default is not cured within the relevant cure period; or
(l) the Deal Agent, as agent for the Lenders, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(i) a final judgment for the payment of money in excess of $1,000,000 shall have been rendered against the Originator or $100,000 against the Borrower by a court of competent jurisdiction and, if such judgment relates to the Originator, the Originator shall have either: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedes or otherwise during the pendency of such appeal or (ii) the Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $250,000 or $100,000, respectively, in settlement of any litigation; or
(n) the Borrower or the Servicer agrees or consents to, or otherwise permits to occur, any amendment, modification, change, supplement or recession of or to the Credit and Collection Policy in whole or in part that could have a material adverse effect upon the Loans or interest of any Lender, without the prior written consent of the Deal Agent or the other Lenders; or
(o) on any day, either Seller (i) the Hedge Notional Amount is less than the Required Notional Amount, or Buyer (ii) any Hedge Transaction fails to meet the requirements set forth in Section 5.3(a); or
(p) on any Determination Date, the Portfolio Yield does not equal or exceed Minimum Portfolio Yield and such failure continues for a period of fifteen (15) consecutive days; or
(q) the Rolling Three-Month Default Ratio shall exceed 5.0%; or
(r) the Rolling Three-Month Charged-Off Ratio shall exceed 2.5%; or
(s) any two of (i) ▇▇▇▇▇ ▇▇▇▇▇▇, (ii) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and (iii) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to be employed by the Borrower or Originator in the capacity as executive officers thereof; or
(t) the Borrower shall become an "investment company" subject to registration under the 1940 Act prior to receiving the Order Approval; or
(u) the Borrower shall become an "investment company" subject to registration under the 1940 Act after receiving the Order Approval and fails to comply with the provisions of the 1940 Act or any rules, regulations or orders issued by the SEC thereunder; or
(v) the business and other activities of the Borrower or the Originator, including but not limited to, the acceptance of the Advances by the Borrower made by the Lenders, the application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Originator is a party result in a violation by the Originator, the Borrower, or any other person or entity of the 1940 Act or the rules and regulations promulgated thereunder; then, and in any such event, the Deal Agent shall, at the request, or may with the consent, of the Required Investors, by notice to the Borrower declare the Termination Date to have occurred, without demand, protest or future notice of any kind, all of which are hereby expressly waived by the Borrower, and all Advances Outstanding and all other amounts owing by the Borrower under this Agreement shall be accelerated and become immediately due and payable, provided, that in the event that the Termination Event described in subsection (h) herein has occurred, the Termination Date shall automatically occur, without demand, protest or any notice of a CFIUS Denialany kind, all of which are hereby expressly waived by the Borrower.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Termination Events. Without prejudice 6.1 The Implementation Agreement will terminate with immediate effect and all rights and obligations of Liberty and SBG under the Implementation Agreement shall cease only in the following circumstances:
6.1.1 on written notice of termination by SBG to other remedies which may be available Liberty if:
6.1.1.1 the Independent Board: (i) withdraws, modifies or qualifies its recommendation to vote in favour of the Ordinary Scheme Resolution; and/or (ii) does not express and maintain a majority view that the Ordinary Scheme Consideration is fair and reasonable to Ordinary Shareholders; or
6.1.1.2 the Independent Board: (i) withdraws, modifies or qualifies its recommendation to vote in favour of the Preference Scheme Resolution and the Preference Share Delisting Resolution; and/or (ii) does not express and maintain a majority view that the Preference Share Consideration and the Standby Offer Consideration is fair and reasonable to Preference Shareholders; or
6.1.1.3 Liberty commits a material breach of the provisions of the Implementation Agreement and, if such breach is capable of remedy, Liberty fails to remedy such breach within the remedy period provided in the Implementation Agreement (or if no such remedy period is provided, then within 10 (ten) Business Days of a written notice from SBG to Liberty requiring the same); or
6.1.1.4 an insolvency event has occurred in respect of Liberty or any material member of the Liberty group;
6.1.2 on written notice of termination by Liberty to SBG if:
6.1.2.1 SBG commits a material breach of the provisions of the Implementation Agreement and, if such breach is capable of remedy, SBG fails to remedy such breach within the remedy period provided in the Implementation Agreement (or if no such remedy period is provided, then within 10 (ten) Business Days of a written notice from Liberty to SBG requiring the same); or
6.1.2.2 an insolvency event has occurred in respect of SBG or SBSA; or
6.1.3 on written notice of termination by one Party to the Parties by Law other if it has been finally determined that it would be illegal to implement all or this Agreement, this Agreement may be terminated and a material part of the transactions contemplated hereby may be abandoned at any time prior to the Closing:Ordinary Scheme; or
(a) 6.1.4 by mutual written consent of S▇▇▇▇▇ agreement between Liberty and B▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination DateSBG.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Implementation Agreement
Termination Events. Without prejudice to other remedies which may be available (a) Notwithstanding anything to the Parties by Law or contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be under this Agreement abandoned at any time prior to the Closing:
(ai) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
(b) by the Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller Representative and Buyer; providedor
(ii) if the Sellers are not then in material breach of any provision of this Agreement, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due Seller Representative if Buyer shall have breached or failed to the breach or violation perform any of any its representations, warranties, covenants or other agreements contained in this Agreement Agreement, which breach or failure to perform (x) would result in the failure of a condition set forth in Section 4.1 or Section 4.3 and (y) cannot be cured by such Party;the End Date; or
(diii) if Buyer is not then in material breach of any provision of this Agreement, by either Buyer if any Seller shall have breached or Buyer by giving written notice failed to the other Party if such other Party has breached perform any of its representations, warranties, covenants, agreements covenants or other obligations hereunder agreements contained in this Agreement, which breach or failure to perform (x) would result in the failure of a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII Section 4.1 or Section 4.2, and (y) cannot to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and End Date; or
(iiiv) by the Seller Representative if (A) any of the conditions set forth in Section 4.1 shall have become incapable of fulfillment due to (1) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that final and nonappealable entry of any order preventing or enjoining the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation transactions contemplated under this Agreement or (2) the final and nonappealable entry of any Legal Restraint preventing the transactions contemplated under this Agreement or (B) the Closing has been not occurred on or before the cause of, or resulted in, End Date (other than as a result of the failure of the Closing Sellers to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by comply fully with their obligations under this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(iv) by either Seller Buyer if (A) any of the conditions set forth in Section 4.1 shall have become incapable of fulfillment due to (1) the final and nonappealable entry of any order preventing or enjoining the transactions contemplated under this Agreement or (2) the final and nonappealable entry of any Legal Restraint preventing the transactions contemplated under this Agreement or (B) the Closing has not occurred on or before the End Date (other than as a result of the failure of Buyer in the event of a CFIUS Denialto comply fully with its obligations under this Agreement).
Appears in 1 contract
Sources: Stock Purchase Agreement (Nexeo Solutions Holdings, LLC)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned abandoned:
(a) at any time, by mutual written agreement of the Stockholders’ Representative and Buyer; or
(b) by Buyer, at any time prior to the Closing:
, if (ai) the Company, any Stockholder, or the Stockholders’ Representative is in breach, in any material respect, of the representations, warranties or covenants made by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
it in this Agreement, (bii) by Seller if the waiting period under the HSR Act has such breach is not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than cured within ten (10) calendar days after of written notice of such breach from Buyer (to the HSR Termination Date.extent such breach is curable) and (iii) such breach, if not cured, would render the conditions set forth in Section 7.2 incapable of being satisfied; or
(c) by the Stockholders’ Representative, at any time prior to the Closing, if (i) Buyer is in breach, in any material respect, of the representations, warranties or covenants made by it in this Agreement, (ii) such breach is not cured within ten (10) days of written notice of such breach from the Stockholders’ Representative (to the extent such breach is curable) and (iii) such breach, if not cured, would render the conditions set forth in Section 7.1 incapable of being satisfied;
(d) by written notice by either Seller the Stockholders’ Representative or Buyer by giving written notice to the other Party other, at any time after the date that is the four (4)-month anniversary of the date hereof (the “Initial Outside Date”) if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyeron or prior to such date; provided, that (i) if, on the Initial Outside Closing Date, all of the conditions set forth in Article VII have been satisfied or waived, other than the condition set forth in Section 7.2(e) and those conditions that by their nature are to be satisfied by actions to be taken at the Closing, then Buyer shall be permitted, in its sole discretion, to elect to extend the Initial Outside Date for up to two (2) successive thirty (30)-day periods by providing written notice of such election to the Stockholders’ Representative on or prior to the Initial Outside Date, and (ii) the right to terminate this Agreement under this Section 11.1(c10.1(d) shall not be available to any Party such party if such failure of the Closing to occur by the Termination Date was primarily due to the breach action or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition inaction of such Party giving notice set forth in Article VIII not to be satisfied and, except party (or in the case of a breach the Stockholders’ Representative, the Company or the Stockholders) or any of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement Affiliates has been the a principal cause of, of or resulted in, in the failure of the Closing to occur on or before such datedate and such action or failure to act constitutes a breach of this Agreement;
(e) by either Seller Buyer or Buyer by giving written notice to the other Party Stockholders’ Representative if any Governmental Authority shall have having competent jurisdiction has issued an ordera final, decree or ruling non-appealable Order or taken any other action the effect of which is to permanently restrainingrestrain, enjoining enjoin or otherwise prohibiting prohibit the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableContemplated Transactions; provided, provided that the right to terminate this Agreement under this Section 11.1(e10.1(e) shall not be available to any Party such party if such order, decree, ruling the action or other Proceeding was caused by or resulted from the failure inaction of such Party to perform party (or in the case of the Stockholders’ Representative, the Company or the Stockholders) or any of its obligations hereunder;
(f) by either Seller Affiliates has been a principal cause of or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held resulted in such Order or action and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon such action or inaction constitutes a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination breach of this Agreement; or
(if) by either Seller or the Buyer in the event of a CFIUS Denialpursuant to Section 6.14.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may This Agreement shall terminate and be available to of no further force or effect, upon the Parties by Law occurrence of any of the following:
(i) Any regulatory authority whose consent or this Agreement, this Agreement may be terminated and approval is necessary for consummation of the transactions contemplated hereby may be abandoned at shall have issued a final order denying or refusing to grant any time prior such approval or consent or shall have granted such approval but shall have imposed conditions that are or would become applicable to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written that either Seller or Buyer reasonably and in good faith deems to be materially burdensome to it; or
(▇▇) ▇▇tual agreement of the parties evidenced in writing; or
(iii) immediately upon the expiration of thirty (30) days from the date that either party hereto has given notice to the other Party party hereto of such other party's material breach or misrepresentation of any condition, warranty, representation or covenant herein; provided, however, that no such termination shall take effect if within said thirty (30) day period the party so notified shall have corrected in all material respects the grounds for termination as specified in the aforementioned notice; or
(iv) written notice by Buyer or Seller to the other party if the Closing shall not have occurred taken place by eight (8) months following December 31, 2002, other than by reason of a matter within the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure control of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representationsperson asserting such termination provided that if, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition as of such Party giving notice set forth in Article VIII not to be satisfied anddate, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting all regulatory approvals necessary for the consummation of any of the transactions contemplated by this Agreementhereunder have been received but the Closing cannot take place because any applicable waiting period has not expired, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, the parties agree that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if extended for such order, decree, ruling or other Proceeding was caused by or resulted from period as shall be required for the failure expiration of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to waiting period and, within a reasonable time thereafter, the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this AgreementClosing; or
(iv) written notice by either Buyer or Seller or Buyer in given to the event other party after entry of a CFIUS Denialfinal, restraining order or injunction prohibiting the assumption of the Accounts.
Appears in 1 contract
Sources: Deposit Assumption and Loan Purchase Agreement (Nara Bancorp Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties parties by Law law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby herein may be abandoned at any time prior to the Closingabandoned:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the parties hereto;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18after August 15, 2025 2001 (the “HSR Termination "Outer Date”"), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) any party by either Seller or Buyer by giving written notice to the other Party party if the Closing shall not have occurred by eight (8) months following been consummated on or prior to the date of this Agreement (the “Termination Date”Outer Date other than for a reason specified in Section 10.1(e), unless extended by written agreement of Seller and Buyer; provided, however, that the right to terminate this Agreement under this Section 11.1(c10.1(b) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party any party whose failure to fulfill breach of any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;date or (ii) in the event that the Closing shall not have occurred as a result of a failure of any representation to be true and correct, (A) if the terminating party knew of such failure prior to the date of this Agreement on the basis of written information from the other party or (B) to the party who made such representation; or
(c) after May 31, 2001, (the "Inner Date"), by Seller by notice to Purchaser if, as of the Inner Date, (i) the condition set forth in Section 7.1(b)(ii) shall not have been satisfied, or (ii) the United States Federal Trade Commission (the "FTC") or the Antitrust Division of the United States Department of Justice (the "DOJ"), on the one hand, and Purchaser, on the other hand, shall not have entered into an agreement with respect to a negotiated settlement of the FTC's or the DOJ's objections, if any, to the Purchase and the other transactions contemplated by this Agreement; provided, however, that Seller shall not be entitled to terminate this Agreement or abandon the transactions contemplated herein pursuant to this Section 10.1(c) if Seller is not in substantial compliance with any formal request for additional information or documentary material under the HSR Act; or
(d) after the Inner Date, by Seller by notice to Purchaser if, as of the Inner Date, the conditions set forth in Section 7.1(c) shall not have been satisfied. 64 60
(e) after the Outer Date, by either Seller or Buyer any party by giving written notice to the other Party party if the condition set forth in Section 7.1(b)(ii) or the condition set forth in Section 7.1(c) shall not have theretofore been satisfied or the FTC or the DOJ, on the one hand, and Purchaser, on the other hand, shall not have entered into an agreement with respect to a negotiated settlement of the FTC's or the DOJ's objections, if any, to the Purchase and the other transactions contemplated by this Agreement; provided, however, that no party shall be entitled to terminate this Agreement or abandon the transactions contemplated herein pursuant to this Section 10.1(e) in the case of a termination other than on account of the failure of the condition set forth in Section 7.1(c) to be satisfied if such party is not in substantial compliance with any Governmental Authority shall have issued an formal request for additional information or documentary material under the HSR Act.
(f) by any party, if a final order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and Agreement has been issued by (i) any federal or state court in the United States having jurisdiction or (ii) any similar court or Governmental Authority in the European Union (unless such order, decreedecree or ruling has been withdrawn, ruling reversed or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was takenotherwise made inapplicable);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Asset Purchase Agreement (Agilent Technologies Inc)
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time notice given prior to or at the Closing, be terminated:
(a) by mutual either Buyer or Seller upon (i) a failure by the other Party to perform any of its duties or obligations under this Agreement when and as due which is not cured within thirty (30) calendar days after receipt of written consent notice thereof from the other Party, or (ii) an inaccuracy in any material respect of S▇▇▇▇▇ and B▇▇▇▇any representation, warranty, certification or other statement made by the other Party herein or in any other document contemplated hereby or in any statement or certificate at any time given by a Party in writing pursuant hereto or thereto or in connection herewith or therewith at the time made or deemed to be made;
(bi) by Buyer if satisfaction of any of the conditions in Article VII has become impossible (other than through the failure of Buyer to comply with its obligations under this Agreement) and Buyer has not previously waived such condition; or (ii) by Seller if satisfaction of any of the waiting period conditions in Article VIII has become impossible (other than through the failure of Seller to comply with its obligations under this Agreement) and Seller has not previously waived such condition on or before the Closing Date;
(i) by Buyer if default shall have occurred under the HSR Act has not expired PPA or terminated by February 18, 2025 any Ancillary Document (as defined in the “HSR Termination Date”PPA), by giving written notice or (ii) in the event that the PPA or any Ancillary Document (as defined in the PPA) shall fail to Buyer no later than ten be in full force and effect in accordance with its terms for any reason, or (10iii) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to any other Person shall contest the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure validity or enforceability of the Closing to occur by PPA or any Ancillary Document (as defined in the Termination Date was primarily due to the breach PPA) or violation of any representations, warranties, covenants provision thereof in writing or agreements contained in this Agreement by such Partydeny that it has any further liability thereunder;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representationsBuyer is, warrantiesfor any reason, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect sole discretion, dissatisfied with the Closing and pay the Closing Cash Consideration purchase price as determined in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breachExhibit 2.10; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;or
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an orderBuyer, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial2.3.
Appears in 1 contract
Sources: Option Agreement
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby without prejudice to any other rights or remedies either party may be abandoned at any time prior to the Closinghave:
(a) by mutual written consent agreement, duly authorized by the managing member of S▇▇▇▇▇ Buyer and B▇▇▇▇the board of directors of Seller;
(b) by Buyer or Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority Body shall have issued an order, decree decree, injunction or ruling judgment or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, transaction and such order, decree, ruling order or other action shall not be subject to appeal or shall have become final and unappealable; providednon-appealable;
(c) by Buyer or Seller upon a material breach of any representation, warranty, covenant or agreement on the part of the other party set forth in this Agreement (a “Terminating Breach"), and such Terminating Breach shall, if capable of cure, not have been cured within forty-five (45) days after receipt by the party in breach of a written notice from the non-breaching party setting forth in detail the nature of such breach;
(d) by Seller if Buyer is sold, transferred, or otherwise there is a change in control such that the right to terminate successor does not assume all the obligations underlying this Agreement;
(i) In the event of termination of this Agreement under Section 7.01(a) or Section 7.01(b), the Purchased Assets shall be returned to Seller only after the Purchase Price have been returned to Buyer. Buyer shall have no further obligations to Seller except for any obligations accumulating prior to such notice of termination and following such notice of termination until the Purchased Assets are returned to Seller and all provisions in this Agreement and the Non-Competition and Non-Solicitation Agreement shall terminate except those expressly referenced for survival. (ii) In the event of termination of this Agreement by Seller under Section 11.1(e) 7.01(c), the Purchased Assets shall not be available returned to any Party Seller and the Purchase Price shall not be returned to Buyer, but Sellers’ obligations contained within Article V shall terminate and Sellers’ obligations under the Asset Sale and Lease Agreement, the Customer Purchase Agreement, and the Non-Competition and Non-Solicitation Agreement will terminate (if still in effect at such ordertime). (iii) In the event of termination of this Agreement by Buyer under Section 7.01(c), decreethe Purchased Assets shall not be returned to Seller and the Purchase Price shall not be returned to Buyer, ruling or other Proceeding was caused by or resulted from but instead the failure provisions contained within Article V shall terminate.
(iv) In the event of termination of this Agreement under Section 7.01(d), the Purchased Assets shall not be returned to Seller and the Purchase Price shall not be returned to Buyer, but instead the provisions contained within Article V shall terminate and the Non-Competition and Non-Solicitation Agreement shall terminate (if still in effect at such Party to perform any of its obligations hereunder;time).
(f) by either Seller Each party’s right of termination hereunder is in addition to any other rights it may have hereunder or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed otherwise and the Stockholder Approval exercise of a right of termination shall not have been obtained by reason be an election of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialremedies.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned abandoned:
(a) at any time, by mutual written agreement of the Securityholders’ Representative and Parent; or
(b) by Parent, at any time prior to the Closing:
, if (ai) the Company or the Securityholders’ Representative is in breach, in any material respect, of the representations, warranties or covenants made by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
it in this Agreement, (bii) by Seller if the waiting period under the HSR Act has such breach is not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than cured within ten (10) calendar days after of written notice of such breach from Parent (to the HSR Termination Date.extent such breach is curable) and (iii) such breach, if not cured, would render the conditions set forth in Section 6.2 incapable of being satisfied; or
(c) by either Seller the Securityholders’ Representative, at any time prior to the Closing, if (i) Parent or Buyer Merger Sub is in breach, in any material respect, of the representations, warranties or covenants made by giving it in this Agreement, (ii) such breach is not cured within ten (10) days of written notice of such breach from the Securityholders’ Representative (to the other Party extent such breach is curable) and (iii) such breach, if not cured, would render the conditions set forth in Section 6.1 incapable of being satisfied;
(d) by written notice by either the Securityholders’ Representative or Parent to the other, at any time after February 15, 2021 if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyeron or prior to such date; provided, that the right to terminate this Agreement under this Section 11.1(c9.1(d) shall not be available to any Party such party if such failure of the Closing to occur by the Termination Date was primarily due to the breach action or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition inaction of such Party giving notice set forth in Article VIII not to be satisfied and, except party (or in the case of a breach the Securityholders’ Representative, the Company) or any of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement Affiliates has been the a principal cause of, of or resulted in, in the failure of the Closing to occur on or before such date;date and such action or failure to act constitutes a breach of this Agreement; or
(e) by either Seller Parent or Buyer by giving written notice to the other Party Securityholders’ Representative if any Governmental Authority shall have having competent jurisdiction has issued an ordera final, decree or ruling non-appealable Order or taken any other action the effect of which is to permanently restrainingrestrain, enjoining enjoin or otherwise prohibiting prohibit the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealableContemplated Transactions; provided, provided that the right to terminate this Agreement under this Section 11.1(e9.1(e) shall not be available to any Party such party if such order, decree, ruling the action or other Proceeding was caused by or resulted from the failure inaction of such Party to perform party (or in the case of the Securityholders’ Representative, the Company) or any of its obligations hereunder;
(f) by either Seller Affiliates has been a principal cause of or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held resulted in such Order or action and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon such action or inaction constitutes a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination breach of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Sources: Merger Agreement (Ideanomics, Inc.)
Termination Events. Without prejudice to other remedies which may If any of the following events (each, a “Termination Event”) shall occur and be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingcontinuing:
(a) by mutual the Borrower shall default in the payment of any amount required to be made under the terms of this Agreement and such failure continues unremedied for a period of three (3) Business Days after the due date set forth herein for such payment, or if no due date is specified, such failure continues for a period of twenty (20) days after written consent request for such payment has been made; or
(b) an Overcollateralization Shortfall exists and continues unremedied for a period of Sthree (3) Business Days; or
(c) the amount of Advances Outstanding shall exceed the Maximum Availability, for more than three (3) Business Days; or
(d) The Agent shall not have received written confirmation from ▇▇▇▇▇’▇ and B▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar within 30 days after the HSR Termination Date.Closing Date that the rating assessment of the facility contemplated by this Agreement is at least “A2”; or
(ce) by either Seller a Required Equity Shortfall exists and continues unremedied for a period of three (3) Business Days; or
(f) (i) the Borrower shall fail to perform or Buyer by giving written notice to the observe in any material respect any other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written covenant or other agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained Borrower set forth in this Agreement by such Party;
and any other Transaction Document to which it is a party, or (dii) by either Seller the Originator shall fail to perform or Buyer by giving written notice to the other Party if such other Party has breached its representationsobserve in any material respect any term, warranties, covenants, agreements covenant or other obligations hereunder in a manner that would reasonably be expected to cause any condition agreement of such Party giving notice Originator set forth in Article VIII not any other Transaction Document to be satisfied andwhich it is a party, except in the each case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, when such breach has not been cured within the earlier of failure continues unremedied for more than twenty (i) thirty (3020) days after written notification notice thereof shall have been given by the Agent or any Secured Party seeking termination to such Person; or
(g) any representation or warranty made or deemed made hereunder and (ii) the Termination Date, but, shall prove to be incorrect in each case, only any material respect as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to time when the other Party if any Governmental Authority same shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreementbeen made, and such order, decree, ruling incorrect representation or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval warranty shall not have been obtained eliminated or otherwise cured within a period of twenty (20) days after written notice thereof shall have been given by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (Agent or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if Secured Party to the Seller Board shall have made a Change of Recommendation;Borrower; or
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement Insolvency Event shall occur with respect to a Superior Proposal concurrently with the termination of this AgreementBorrower or the Originator; or
(i) a Servicer Termination Event occurs; or
(j) any Change in Control of the Borrower or Originator occurs; or
(k) the Borrower or the Originator defaults in making any payment required to be made with respect to any material recourse debt or other obligation to which either is a party and such default is not cured within the relevant cure period or any event or condition shall occur or exist that would cause or permit the acceleration of such recourse debt or other obligation, whether or not such event or condition has been waived or any such recourse debt or other obligation shall be declared to be due and payable or required to be prepaid (other than by scheduled payment) prior to maturity; or
(l) the Agent, as agent for the Secured Parties, shall fail for any reason to have a valid and perfected first priority security interest in any of the Collateral; or
(i) a final judgment for the payment of money in excess of 10% of the Tangible Net Worth of the Originator shall have been rendered against the Originator or $100,000 against the Borrower by a court of competent jurisdiction and, if such judgment relates to the Originator, the Originator shall have either: (1) discharged or provided for the discharge of such judgment in accordance with its terms, or (2) perfected a timely appeal of such judgment and caused the execution thereof to be stayed (by supersedes or otherwise during the pendency of such appeal or (ii) the Originator or the Borrower, as the case may be, shall have made payments of amounts in excess of $1,000,000 or $100,000, respectively, in settlement of any litigation; or
(n) the Borrower or the Servicer agrees or consents to, or otherwise permits (x) any change in the Credit and Collection Policy which would materially and adversely affect or impair the collectibility of any Loan or (y), any material amendment, modification, change, supplement or recession of or to the Credit and Collection Policy in whole or in part without the prior written consent of the Agent; or
(o) on each day during a period of ten (10) consecutive days, either Seller (i) the aggregate Hedge Notional Amount is less than the product of the Hedge Percentage on such day and the Hedge Amount on that day, or Buyer (ii) any Hedge Transaction fails to meet the requirements set forth in subsection 5.2(a); or
(p) a Ratings Effect occurs; or
(q) on any Determination Date, the Rolling Three-Month Portfolio Yield does not equal or exceed 5.0% and such failure continues for a period of fifteen (15) consecutive days; or
(r) the Rolling Three-Month Default Ratio shall exceed 5.0%; or
(s) the Rolling Three-Month Charged-Off Ratio shall exceed 2.5%; or
(t) the Rolling Twelve-Month Portfolio Charged-Off Ratio shall exceed 12.0%; or
(u) any two of (i) ▇▇▇▇▇ ▇▇▇▇▇▇, (ii) ▇▇▇ ▇▇▇▇▇▇, and (iii) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to be employed by the Borrower or Originator in the capacity as executive officers thereof; or
(v) the Borrower shall become required to register as an “investment company” under the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act or any rules, regulations or orders issued by the SEC thereunder; or
(w) the business and other activities of the Borrower or the Originator, including but not limited to, the acceptance of the Advances and the Expedited Advances by the Borrower made by the Conduit Lender, the application and use of the proceeds thereof by the Borrower and the consummation and conduct of the transactions contemplated by the Transaction Documents to which the Borrower or the Originator is a party result in a violation by the Originator, the Borrower, or any other person or entity of the 1940 Act or the rules and regulations promulgated thereunder; or
(x) a Material Adverse Change in the operations of the Originator, the Servicer or the Borrower shall occur; or
(y) a change in any binding law or any rule or regulation having the force of law shall occur, which would cause the legal conclusions made in the true sale, non-consolidation and perfection opinions delivered in connection with the Transaction Documents to be incorrect; then, and in any such event, the Agent may, by notice to the Borrower, declare the Termination Date to have occurred, without demand, protest or future notice of any kind, all of which are hereby expressly waived by the Borrower, and all Obligations owing by the Borrower under this Agreement shall be accelerated and become immediately due and payable; provided, that, in the event that the Termination Event described in subsection 9.1(h) herein has occurred, the Termination Date shall automatically occur, without demand, protest or any notice of a CFIUS Denialany kind, all of which are hereby expressly waived by the Borrower. Upon any such declaration or automatic occurrence of the Termination Date, no Advances or Expedited Advances will be made, and the Agent and the Secured Parties shall have, in addition to all other rights and remedies under this Agreement or otherwise, all rights and remedies provided under the UCC of each applicable jurisdiction and other Applicable Laws, including the right to sell the Collateral, which rights and remedies shall be cumulative. The aforementioned rights and remedies shall be without limitation, and shall be in addition to all other rights and remedies of the Agent and the Secured Parties otherwise available under any provision of this Agreement by operation of law, at equity or otherwise, each of which are expressly preserved.
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (American Capital Strategies LTD)
Termination Events. Without prejudice to other remedies which may be available to The occurrence of any one or more of the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingfollowing events shall constitute a Termination Event:
(a) by mutual written consent of S▇▇▇▇▇ Seller shall fail to make any payment or deposit required hereunder when due and B▇▇▇▇;such failure shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or statement made by Seller if in this Agreement, any other Transaction Document or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; PROVIDED THAT the waiting period under materiality threshold in the HSR Act preceding clause shall not be applicable with respect to any representation or warranty which itself contains a materiality threshold and PROVIDED FURTHER, that any misrepresentation or certification for which Purchaser has actually received a Purchase Price Credit from Seller shall not expired or terminated by February 18, 2025 (the “HSR constitute a Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination DateEvent hereunder.
(c) by either Seller shall breach any covenant contained in Section 4.1(b)(i) which is not cured within three (3) Business Days, or Buyer by giving written notice Seller shall breach any covenant contained in Section 4.2(c) or 4.2(e), which is not cured within thirty (30) days, or Seller shall breach any covenant contained in Section 4.2(a), (b) or (d).
(d) Seller shall breach, fail to the other Party if the Closing shall not have occurred by eight (8) months following the date perform or observe any covenant contained in any Section of this Agreement (the “Termination Date”)which is not covered by another subsection, unless extended by written agreement paragraph or clause of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c5.1) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice other Transaction Document to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in which it is a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII party which is not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured remedied within the earlier of (i) thirty (30) days after written notification thereof by notice from Purchaser (or, at any time while the Party seeking termination hereunder and (ii) the Termination DateLoan Agreement remains in effect, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;Administrator).
(e) by either Failure of Seller or Buyer any of its Subsidiaries to pay any of its Material Debts when due; or the default by giving written notice Seller or any of its Subsidiaries in the performance of any term, provision or condition contained in any agreement under which such Material Debt was created or is governed, or any other event shall occur or condition exist, the effect of which is to cause, or to permit the holder or holders of such Material Debt to cause such Material Debt to become due prior to its stated maturity; or any Material Debt of Seller or any of its Subsidiaries shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled payment or as a result of the sale of an asset securing such Material Debt) prior to the stated maturity thereof.
(i) Seller shall generally not pay its debts as such debts become due or shall admit in writing its inability to pay its debts generally or shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against Seller seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other Party if similar official for it or any Governmental Authority substantial part of its property or (iii) Seller shall have issued an order, decree or ruling or taken take any other corporate action permanently restraining, enjoining or otherwise prohibiting the consummation of to authorize any of the transactions contemplated by actions set forth in the foregoing clauses (i) or (ii) of this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
subsection (f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);.
(g) by either Seller or Buyer if the Seller Board shall have made a A Change of Recommendation;Control shall occur.
(h) by Seller at or any time prior of its Subsidiaries shall fail within 30 days to pay, bond or otherwise discharge any judgment or order for the Termination Datepayment of money in excess of $5,000,000, if Seller has complied with the terms of Section 7.3 which is not stayed on appeal or otherwise being appropriately contested in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; orgood faith.
(i) by either Seller The Subordinated Note shall be assigned, pledged or Buyer otherwise transferred to any Person in violation of the event of a CFIUS Deniallast section thereof.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreementwritten notice, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) prior to either the Initial Closing, or any Subsequent Closing (but only with respect to the subject matter of the Subsequent Closing), by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇the Parties;
(b) prior to the Initial Closing only, by Seller if the waiting period under the HSR Act has not expired or terminated by February 18Purchaser, 2025 (the “HSR Termination Date”)for any reason or no reason, by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.in their sole discretion;
(c) by either Seller or Buyer by giving written notice Party prior to the Initial Closing Date or any Subsequent Closing if any Governmental Authority has issued a nonappealable final Judgment or taken any other Party if nonappealable final action, in each case having the Closing shall effect of permanently restraining, enjoining or otherwise prohibiting the Contemplated Transactions that have not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyeryet taken place; provided, provided that the right to terminate this Agreement under this Section 11.1(c7.1(c) shall will not be available to any Party if such whose failure to fulfill any material obligation under this Agreement has been the cause of or resulted in the Closing to occur by the Termination Date was primarily due action or event described in this Section 7.1(c) occurring;
(d) prior to the breach Initial Closing Date only, by Purchaser (i) pursuant to Section 6.1(h) or violation (ii) if Seller shall have materially breached or failed to perform any of any its representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not this Agreement, which breach of or failure to be satisfied and, except in perform (A) would give rise to the case failure of a condition set forth in Section 6.1(a) or Section 6.1(b) and (B) is incapable of being cured on or prior to the Initial End Date or, if capable of being cured by the Initial End Date, Seller shall not have commenced good-faith efforts to cure the breach of Buyer’s obligation or failure to effect perform within 30 calendar days following (or the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has or failure to perform is not been cured within by the earlier of (ithe Initial End Date or a further 30 calendar days following) thirty (30) days after receipt by Seller of written notification thereof by notice from Purchaser of the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues breach or failure to use its reasonable best efforts to cure such breachperform; provided, provided that the right to terminate this Agreement under this Section 11.1(d7.1(d) shall will not be available to a Party whose if Purchaser’s failure to fulfill any material obligation under this Agreement has been the cause of, of or resulted inin the action or event described in this Section 7.1(d) occurring; provided, the failure further, that any termination arising under Section 6.1(h) shall be a partial termination in respect only of the Closing to occur on Kuwait Assets or before such datethe Algeria Assets as provided for in Section 6.1(h);
(e) by either Seller or Buyer by giving written notice prior to the other Party Initial Closing Date only, by Seller if any Governmental Authority Purchaser shall have issued an order, decree materially breached or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of failed to perform any of the transactions contemplated by its representations, warranties, covenants or agreements set forth in this Agreement, which breach of or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and such order(ii) is incapable of being cured on or prior to the Initial End Date or, decreeif capable of being cured by the Initial End Date, ruling or other action Purchaser shall not be subject have commenced good-faith efforts to appeal cure the breach or shall have become final and unappealablefailure to perform within 30 calendar days following (or the breach or failure to perform is not cured within 60 calendar days following) receipt by Purchaser of written notice from Seller of the breach or failure to perform; provided, provided that the right to terminate this Agreement under this Section 11.1(e7.1(e) will not be available if Seller’s failure to fulfill any material obligation under this Agreement has been the cause of or resulted in the action or event described in this Section 7.1(e) occurring;
(f) prior to the Initial Closing Date only, by written notice of either Party to the other Party, if the Initial Closing shall not have occurred on or before December 31, 2018 (the “Initial End Date”); provided that 428928/HOUDMS the right to terminate under this Section 7.1(f) will not be available to any Party if such order, decree, ruling whose material breach of this Agreement or other Proceeding was caused by failure to fulfill any material obligation under this Agreement has been a cause of or resulted from in the failure of the Initial Closing to occur by such Party date;
(g) following the Initial Closing Date and prior to any Subsequent Closing Date (but only with respect to the subject matter of the Subsequent Closing), by Purchaser (i) pursuant to Section 6.3(h) or (ii) if Seller shall have materially breached or failed to perform any of its obligations hereunder;
representations, warranties, covenants or agreements set forth in this Agreement, which breach of or failure to perform (fA) by either Seller or Buyer by giving written notice would give rise to the other Party failure of a condition set forth in Section 6.3(a) or Section 6.3(b) and (B) is incapable of being cured on or prior to the Subsequent End Date or, if capable of being cured by the Stockholder Meeting shall have been held and completed and the Stockholder Approval Subsequent End Date, Seller shall not have been obtained commenced good-faith efforts to cure the breach or failure to perform within 30 calendar days following (or the breach or failure to perform is not cured by reason the earlier of the Subsequent End Date or a further 30 calendar days following) receipt by Seller of written notice from Purchaser of the breach or failure to obtain perform; provided that the required vote upon a final vote taken at right to terminate this Agreement under this Section 7.1(g) will not be available if Purchaser’s failure to fulfill any material obligation under this Agreement has been the Stockholder Meeting (cause of or any adjournment resulted in the action or postponement thereof at which such vote was taken);
(gevent described in this Section 7.1(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendationoccurring;
(h) following the Initial Closing Date and prior to any Subsequent Closing Date (but only with respect to the subject matter of the Subsequent Closing), by Seller at if Purchaser shall have materially breached or failed to perform any time of its representations, warranties, covenants or agreements set forth in this Agreement, which breach of or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.4(a) or Section 6.4(b) and (ii) is incapable of being cured on or prior to the Termination Subsequent End Date or, if capable of being cured by the Subsequent End Date, Purchaser shall not have commenced good-faith efforts to cure the breach or failure to perform within 30 calendar days following (or the breach or failure to perform is not cured by the earlier of the Subsequent End Date or a further 60 calendar days following) receipt by Purchaser of written notice from Seller of the breach or failure to perform; provided that the right to terminate this Agreement under this Section 7.1(h) will not be available if Seller Seller’s failure to fulfill any material obligation under this Agreement has complied with been the terms cause of or resulted in the action or event described in this Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or7.1(h) occurring;
(i) following the Initial Closing Date and prior to any Subsequent Closing Date (but only with respect to the subject matter of the Subsequent Closing), by written notice of either Seller Party to the other Party, if the Subsequent Closing shall not have occurred on or Buyer before March 31, 2019 (the “Subsequent End Date”); provided that the right to terminate under this Section 7.1(i) will not be available to any Party whose material breach of this Agreement or failure to fulfill any material obligation under this Agreement has been a cause of or resulted in the event failure of a CFIUS Denialthe Subsequent Closing to occur by such date.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Weatherford International PLC)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) If a Termination Event occurs in relation to a Shareholder (the “Affected Shareholder”), the Affected Shareholder shall be obliged to notify the other Shareholders (the “Non-Affected Shareholders”) promptly in writing of such Termination Event. After a Termination Event, any Non-Affected Shareholder may within the period of 20 days from the later of the date of the Termination Event and the date of receipt of the notice from the Affected Shareholder serve a notice on the Affected Shareholder (such notice to be copied to the other Non-Affected Shareholders, if any) requiring that the Affected Shareholder and each of its Related Companies (together, the “Affected Shareholder Group”) shall offer to transfer all of its Shares in accordance with Clause 12 (Transfer of Shares). Upon service of such a notice by mutual written consent any Non-Affected Shareholder, the Affected Shareholder Group shall immediately be deemed to have given Transfer Notices in accordance with Clause 12.5 (Transfer Notice) and the provisions of S▇▇▇▇▇ and B▇▇▇▇;Clause 12 (Transfer of Shares) shall apply.
(b) If a Transfer Notice is deemed to have been given by Seller if a member of the waiting period under Affected Shareholder Group pursuant to this Clause 13, then such Transfer Notice shall be deemed to have been given:
(i) in the HSR Act has not expired or terminated by February 18, 2025 case of an event falling within paragraphs (the “HSR Termination Date”a), by giving written notice to Buyer no later than ten (10b) calendar days after the HSR Termination Date.
or (c) by either Seller or Buyer by giving written notice of the definition of “Termination Event”, immediately prior to the other Party if the Closing shall not have occurred by eight (8) months following the date occurrence of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyersuch event; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;and
(dii) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Material Default which is a Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted inEvent, the failure of date on which the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the related Default Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialNotice expires.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated terminated:
14.1.1 Prior to Closing by mutual Consent of the Purchaser and the transactions contemplated hereby may be abandoned at any time prior to Seller;
14.1.2 by the ClosingPurchaser if:
(a) by mutual written consent there has been a material breach of S▇▇▇▇▇ and B▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any Seller’s representations, warranties, covenants or agreements contained in this Agreement by such Party;
Agreement, which would result in the failure of a condition set forth in Clause 5.1, and which breach has not been cured or cannot be cured within 30 (dthirty) by either Seller or Buyer by giving written days after the notice to of the other Party if such other Party has breached breach from the Purchaser and the Purchaser is not then in material breach of any of its representations, warranties, covenantscovenants or agreements contained in this Agreement;
(b) there has been a Material Adverse Effect prior to Closing;
14.1.3 by the Seller or Purchaser, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect if the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur occurred on or before such datethe Long Stop Date;
(e) 14.1.4 by either the Purchaser or the Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have has issued an order, decree or ruling a non-appealable final Judgment or taken any other action non-appealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement;
14.1.5 by the Seller if there has been a material breach of any of the Purchaser’s representations, warranties, covenants or agreements contained in this Agreement, and such order, decree, ruling which breach has not been cured or other action shall cannot be subject to appeal or shall have become final and unappealable; provided, that cured within 30 (thirty) days after the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted notice of the breach from the failure Seller and the Seller is not then in material breach of such Party to perform any of its obligations hereunder;
(f) by either Seller representations, warranties, covenants or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 agreements contained in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available Notwithstanding anything herein to the Parties by Law or this Agreementcontrary, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent agreement of S▇▇▇▇▇ Seller and B▇▇▇▇Buyer;
(b) by written notice of either Seller if or Buyer to such other Party if:
(i) Buyer is not the waiting period under the HSR Act Successful Bidder or is not or has not expired or terminated agreed to be the Alternate Bidder at the Auction;
(ii) the Closing has not occurred by February 18the close of business on June 1, 2025 2020 (the “HSR Termination Outside Date”); provided, if all conditions specified in Articles 9, 10 and 11 have been satisfied or waived as of the initial Outside Date (or, with respect to those conditions which, by their nature can only be satisfied at the Closing, would reasonably be capable of satisfaction as of such date), other than the conditions set forth in Section 10.03 and Section 10.01 (if the Order relates to the matters referenced in Section 10.03), then the Outside Date shall be further extended to September 1, 2020 (the “First Extended Outside Date”), by giving written notice to if Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either notifies Seller in writing on or Buyer by giving written notice prior to the other Party if initial Outside Date of its election to extend the Closing Outside Date to such date (such election shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”be at Buyer’s sole discretion), unless extended by written agreement of Seller and Buyer; provided, further, the Outside Date shall be further extended to December 1, 2020 if Buyer notifies Seller in writing on or prior to the First Extended Outside Date of its election to extend the Outside Date to such date (such election shall be at Buyer’s sole discretion); provided, further, that the right to a Party may not terminate this Agreement under pursuant to this Section 11.1(cSection 12.01(b)(ii) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the Party is in material breach or violation of any of its representations, warranties, covenants or agreements contained herein and such material breach is the primary cause that the Closing has not occurred by the Outside Date (as may be extended); provided, further, that if the Marketing Period has begun but not completed by the Outside Date, then Buyer may elect, in this Agreement by such Partyits sole discretion, to extend the Outside Date to the last day of the Marketing Period;
(diii) there is in effect a Final Order by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition court of such Party giving notice set forth in Article VIII not to be satisfied and, except competent jurisdiction in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently United States restraining, enjoining or otherwise prohibiting the consummation Closing; provided that a Party may not terminate this Agreement pursuant to this Section 12.01(b)(iii) if such party is in material breach of any of its representations, warranties, covenants or agreements contained herein and such material breach is the primary cause or grounds for such Final Order;
(iv) (A) Seller enters into a definitive agreement providing for a Superior Proposal, and Buyer is not or has not agreed to be the Alternate Bidder at the Auction, or (B) Seller enters into a definitive agreement providing for a Superior Proposal, Buyer is the Alternate Bidder (and has agreed to be the Alternate Bidder) at the Auction, and the closing of the sale of the relevant Assets to the Successful Bidder pursuant to such Superior Proposal has occurred; or
(v) if, after their respective entry, either the Bidding Procedures Order or Sale Order ceases to be in full force and effect.
(c) so long as Buyer is not in material breach of any of its representations, warranties, covenants or agreements contained herein, by Buyer by written notice to Seller if:
(i) (A) any Selling Entity breaches any representation or warranty or any covenant or agreement contained in this Agreement, (B) such breach would result in a failure of a condition set forth in Article 9 or Article 10 and (C) such breach has not been cured by the earlier of (1) ten (10) Business Days after the giving of written notice by Buyer to Seller of such breach and (2) the Outside Date; or
(ii) any Selling Entity (x) files a motion (without Buyer’s consent) to have the Bankruptcy Court enter an Order dismissing or converting the Bankruptcy Cases into cases under Chapter 7 of the Bankruptcy Code or appointing a trustee in the Bankruptcy Cases or appointing an examiner with enlarged power related to the operation of the Business (beyond those set forth in Section 1106(a)(3) or (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code or the occurrence of any of the transactions foregoing, or (y) announces its intention to, or files a motion to, pursue or enter into any Superior Proposal (unless Buyer has agreed to be the Alternate Bidder) or other transaction that would make the consummation of the transaction contemplated by this Agreement, and such order, decree, ruling Agreement or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(esatisfaction of any conditions herein impossible;
(d) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure so long as no Selling Entity is in material breach of such Party to perform any of its obligations hereunderrepresentations, warranties, covenants or agreements contained herein, by Seller by written notice to Buyer if (i) Buyer breaches any representation or warranty or any covenant or agreement contained in this Agreement, (ii) such breach would result in a failure of a condition set forth in Article 10 or Article 11 and (iii) such breach has not been cured by the earlier of (A) ten (10) Business Days after the giving of written notice by Seller to Buyer of such breach and (B) the Outside Date;
(e) by Seller by written notice to Buyer if Buyer fails to consummate the transactions contemplated hereby, including payment of the Closing Payment Amount, the Customer Deductions Escrow Amount and the Adjustment Escrow Amount, as and when required by Article 4 hereof;
(f) by either Seller or Buyer by giving written notice to the other Party Seller if the Stockholder Meeting shall have been held and completed and Bidding Procedures Order is not entered by March 13, 2020 or the Stockholder Approval shall Sale Order is not have been obtained entered by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken)May 20, 2020;
(g) by either Seller Buyer by written notice to Seller, if any creditor of a Selling Entity or Buyer if its Affiliates obtains relief from the Seller Board shall have made stay to foreclose on, or otherwise take possession of, a Change material portion of Recommendationthe Assets;
(h) by Buyer by written notice to Seller at if:
(i) commencing January 17, 2020 and on each second Friday thereafter, the DIP Actual Operating Disbursements Amount for the DIP Cumulative Period exceeds 120% of the DIP Budgeted Operating Disbursements Amount for such DIP Cumulative Period, without giving effect to any time prior to the Termination Dateupdates, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement modifications, or supplements to, or forbearances or waivers with respect to a Superior Proposal concurrently with to, the termination of this Agreementthen-current DIP Budget; or
(ii) commencing January 17, 2020 and on each second Friday thereafter, the DIP Actual Operating Cash Receipts for the DIP Cumulative Period are less than eighty-five percent (85%) of the DIP Budgeted Operating Cash Receipts as set forth in the DIP Budget for such DIP Cumulative Period, without giving effect to any updates, modifications, or supplements to, or forbearances or waivers with respect to, the then-current DIP Budget;
(i) by Buyer by written notice to Seller upon the occurrence of either Seller or Buyer an Event of Default (as defined in the event DIP Credit Agreement) or the Termination Date (as defined in the DIP Order, as applicable); and/or
(j) by Buyer by written notice to Seller if all of a CFIUS Denialthe Final Exhibits and Schedules are not finalized and agreed to by the Parties in accordance with Section 14.18, by 5:00 pm Eastern Standard Time on the fifth (5th) Business Day before the hearing to approve the Bidding Procedures.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available Notwithstanding anything to the Parties by Law or contrary in this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:Closing only as follows.
(a) by mutual written consent of S▇▇▇▇▇ Seller and B▇▇▇▇;Buyer.
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by from either Seller or Buyer by giving written notice to Buyer:
(i) if a Governmental Authority issues a final, non-appealable ruling or Order permanently restraining, enjoining or otherwise prohibiting consummation of the other Party transactions contemplated hereby;
(ii) if the Closing shall not have occurred by eight (8) months following the date of this Agreement on or prior to October 31, 2016 (the “Termination Outside Date”), unless extended by written agreement of Seller and Buyer; provided, however, that if Buyer is the “Backup Bidder” in the Auction (each as defined in the Bidding Procedures), Buyer’s right to terminate this Agreement pursuant to this Section 10.1(b)(ii) shall be subject to the Bidding Procedures (and such extended date shall be deemed to be the “Outside Date” for all purposes hereunder); provided, further that the terminating Party under this Section 11.1(c10.1(b)(ii) shall is not be available to any Party if (at such failure time of the Closing to occur by the Termination Date was primarily due to the termination) in breach or violation of any representationsrepresentation, warrantieswarranty, covenants covenant or agreements contained other agreement in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected so as to cause any condition of such Party giving notice set forth in Article VIII conditions to Closing not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has have been the proximate cause of, or resulted in, of the failure of the Closing to occur on or before prior to the Outside Date; or
(iii) upon the final, non-appealable ruling or denial of the Governmental Authorizations described in Sections 8.4 and 9.4 and required to be obtained by Closing;
(c) by written notice from Buyer in the event of any breach of, or failure to perform, by Seller of any of its agreements, covenants, representations or warranties contained herein or in the Sale Order, which breach or failure to perform (A) would result in a condition set forth in Article 8 not to be satisfied and (B) cannot be cured (and was not cured) within the greater of five (5) Business Days or ten (10) days Business Days after Buyer notifies Seller of such date;breach in writing; provided, that Buyer shall not have a right of termination pursuant to this Section 10.1(c) if it is then in material breach of any of its agreements, covenants, representations or warranties contained herein or in the Sale Order; provided, further, that any purported termination of this Agreement by Seller pursuant to Section 10.1(b)(ii) shall be deemed to be a termination by Buyer pursuant to this Section 10.1(c) if Seller is entitled to terminate this Agreement pursuant to this Section 10.1(c) at the time of such purported termination.
(d) by written notice from Seller in the event of any breach of, or failure to perform, by Buyer of any of its agreements, covenants, representations or warranties contained herein or in the Sale Order, which breach or failure to perform (A) would result in a condition set forth in Article 9 not to be satisfied and (B) cannot be cured (and was not cured) within the greater of five (5) Business Days or ten (10) days after Seller notifies Buyer of such breach in writing; provided, that Seller shall not have a right of termination pursuant to this Section 10.1(d) if Seller is then in material breach of any of its agreements, covenants, representations or warranties contained herein or in the Sale Order; provided, further, that any purported termination of this Agreement by Buyer pursuant to Section 10.1(b)(ii) shall be deemed to be a termination by Seller pursuant to this Section 10.1(d) if Seller is entitled to terminate this Agreement pursuant to this Section 10.1(d) at the time of such purported termination.
(e) by written notice from either Seller or Buyer by giving written notice to Buyer, if Seller consummates an Alternative Transaction. Each condition set forth in this Section 10.1 shall be considered separate and distinct from each other such condition. If more than one of the other termination conditions set forth in this Section 10.1 are applicable, the applicable Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate choose the termination condition pursuant to which this Agreement under this Section 11.1(e) shall not is to be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialterminated.
Appears in 1 contract
Sources: Asset Purchase Agreement
Termination Events. Without prejudice to other remedies which may be available Subject to the Parties by Law or this Agreementprovisions of Section 9.2 herein, this Agreement may may, by written notice given at or prior to the Closing in the manner hereinafter provided, be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingabandoned:
(a) By Seller or Buyer, if a material default or breach shall be made by mutual the other with respect to the due and timely performance of any of its respective covenants and agreements contained herein, or with respect to the due compliance with any of its respective representations and warranties contained in Article III or IV, as applicable, and after Buyer or Seller, as the case may be, shall have given to the other written consent notice of S▇▇▇▇▇ such material default or breach and B▇▇▇▇the defaulting or breaching party shall not have substantially cured the default or breach prior to the earlier of (I) a reasonable time following notice of such default or breach (which shall not be more than 30 days following such notice) and (II) the date set forth in clause (c) of this Section 9.1 and such default or breach has not been waived;
(b) by By mutual written consent of Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.and Buyer;
(c) by either By Seller or Buyer by giving written notice to the other Party Buyer, if the Closing shall not have occurred on or before June 30, 1998 or such later date as may be agreed upon by eight (8) months following the date of this Agreement (the “Termination Date”)parties; PROVIDED, unless extended by written agreement of Seller and Buyer; providedHOWEVER, that the right to terminate this Agreement under this paragraph (c) of this Section 11.1(c) 9.1 shall not be available to any Party if such failure either of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party respective parties whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;; or
(ed) by By Buyer if either condition precedent specified in Section 6.1.5 or 6.1.6 has not been satisfied as of the date which is 45 days following the date hereof; PROVIDED, HOWEVER, that if Seller or Buyer by giving shall not have received written notice from Buyer of its intention to the other Party if any Governmental Authority terminate this Agreement pursuant to this Section 9.1(d) within 1 day following such 45 day period, then Buyer shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the no further right to terminate this Agreement under pursuant this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken9.1(d);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time written notice given prior to or at the Closing, be terminated:
(a) by By mutual written consent of S▇▇▇▇▇ Buyer and B▇▇▇▇the Sellers’ Representative;
(b) on or after the ninety-first (91st) day after the date hereof by Seller either the Sellers’ Representative or Buyer if the waiting period under the HSR Act Closing has not expired occurred on or terminated by February 18before the Ninetieth Day; provided, 2025 (that the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to terminating Party shall give the other Party if the Closing shall or Parties not have occurred by eight less than two (8) months following the date 2) Business Days notice of its intent to terminate this Agreement pursuant to this Section 10.1(b) and within such two (2) Business Day period will discuss with the “Termination Date”), unless extended by written agreement of Seller other Party or Parties the basis upon which such notice was given and Buyershall explore possible alternatives; provided, however, that the decision to terminate shall rest solely in the discretion of the notifying Party; and provided, further that the right to terminate this Agreement under pursuant to this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d10.1(b) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been which is then in Breach (or in the cause of, or resulted in, the failure case of the Closing to occur on Sellers’ Representative if any Seller or before such datethe Company is then in Breach) of any representation, warranty, covenant, agreement or obligation contained in this Agreement;
(ec) by either Seller the Sellers’ Representative, upon written notice, if (i) one or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any more of the transactions contemplated by this Agreement, representations and such order, decree, ruling or other action shall not be subject to appeal or warranties of Buyer shall have become final untrue such that the condition set forth in Section 9.1 would not be satisfied, (ii) Buyer shall have breached any agreement, obligation or covenant such that the condition set forth in Section 9.2 would not be satisfied, or (iii) all of the conditions set forth in ARTICLE 8 are satisfied (excluding conditions that, by their terms, cannot be satisfied until the Closing, but which would be reasonably capable of being satisfied at Closing) and unappealableBuyer fails to satisfy its obligations to be carried out at Closing under ARTICLES 2 and 3; provided, that in the case of (i) or (ii) if the inaccuracy in Buyer’s representations and warranties or the breach of Buyer’s agreement, obligation or covenant is curable through the exercise of Buyer’s commercially reasonable efforts, then the Sellers’ Representative may not terminate this Agreement for thirty (30) days after the Sellers’ Representative shall have given written notice of such inaccuracy or breach to Buyer (so long as Buyer continues to use commercially reasonable efforts to cure the inaccuracy or breach during such period), it being understood that the Sellers’ Representative may not terminate this Agreement if Buyer cures such inaccuracy or breach within such thirty (30) day period; and provided further that the right to terminate this Agreement under pursuant to this Section 11.1(e10.1(c) shall not be available if the Company or any Seller is then in Breach of any representation, warranty, covenant, agreement or obligation contained in this Agreement;
(d) by Buyer, upon written notice, if (i) one or more of the representations and warranties of Sellers shall have become untrue such that the condition set forth in Section 8.1 would not be satisfied, (ii) Sellers or the Company shall have breached any agreement, obligation or covenant such that the condition set forth in Section 8.2 would not be satisfied, or (iii) all of the conditions set forth in ARTICLE 9 are satisfied (excluding conditions that, by their terms, cannot be satisfied until the Closing, but which would be reasonably capable of being satisfied at Closing) and Sellers and the Company fail to satisfy all of their obligations to be carried out at Closing under ARTICLES 2 and 3; provided that in the case of (i) or (ii) if the inaccuracy in Sellers’ representations and warranties or the breach of Sellers’ or the Company’s agreement, obligation or covenant is curable through the exercise of commercially reasonable efforts, then Buyer may not terminate this Agreement for thirty (30) days after Buyer shall have given written notice of such inaccuracy or breach to the Sellers’ Representative (so long as Sellers and/or the Company continue to use commercially reasonable efforts to cure such inaccuracy or breach during such period), it being understood that Buyer may not terminate this Agreement if Sellers or the Company cures such inaccuracy or breach within such thirty (30) day period; and provided further that the right to terminate this Agreement pursuant to this Section 10.1(d) shall not be available to any Party Buyer if such order, decree, ruling or other Proceeding was caused by or resulted from the failure Buyer is then in Breach of such Party to perform any of its representations, warranties, covenants or obligations hereundercontained in this Agreement;
(e) by Buyer or the Sellers’ Representative if there shall be any Legal Requirement that makes consummation of the purchase of the Shares illegal or otherwise prohibited, or if any order of any Governmental Body enjoining Buyer or Sellers from consummating the purchase of the Shares is entered and such order shall have become final and nonappealable; provided that the Party seeking to terminate this Agreement pursuant to this provision shall have used all commercially reasonable efforts to remove or vacate such order; or
(f) by either Seller or Buyer by giving Buyer, upon written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller notice, at any time prior following the date hereof, that Buyer has determined for any reason, in its sole discretion, not to the Termination Date, if Seller has complied proceed with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS DenialClosing.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ the Seller Representative and B▇▇▇▇Buyer;
(b) by either the Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller Representative or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight August 31, 2007, (8) months following such date, the date of “Initial Termination Date”, and as may be extended pursuant to this Agreement subsection (b), the “Termination Date”), ) unless extended by written agreement of the Seller Representative and Buyer; provided that: (i) the Party seeking termination pursuant to this subsection (b) is not in default or breach of any Transaction Document to which it is party and provided, further, that the right to terminate this Agreement under this Section 11.1(csubsection (b) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date; and (ii) if (x) the Merger shall not have been effected solely because the condition to Closing set forth in Section 7.1(b) has not been satisfied on or prior to the Initial Termination Date; (y) filings pursuant to the HSR Act with the FTC and the Antitrust Division and filings pursuant to ECMR with the EC (if required) have been made and the requisite Governmental Approvals relating thereto have been obtained; and (z) such other Governmental Approvals as may be deemed required pursuant to the terms of this Agreement have not been obtained solely due to the failure of the relevant Party or Governmental Authority to take action with respect to granting such Governmental Approval, and not as a result of Buyer, Merger Sub or its Affiliates’ failure to comply with its obligations hereunder, including as required by Section 6.3 and Section 6.4, then the Termination Date shall be extended to September 30, 2007;
(ec) by either the Seller Representative or Buyer by giving written notice to the other Party if any Governmental Authority such other Party has materially breached its covenants or other obligations hereunder in a manner that would reasonably be expected to cause the conditions set forth in Article VII not to be satisfied and such breach has not been cured within 30 days following written notification thereof; and
(d) by the Seller Representative, if (i) the Merger shall not have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any been consummated within two (2) Business Days of the transactions contemplated first date upon which all conditions set forth in Section 7.1 and Section 7.3 are satisfied (other than those which by this Agreementtheir terms are not capable of being satisfied until the Closing Date) and (ii) at the time of such termination such conditions continue to be satisfied (other than those which by their terms are not capable of being satisfied until the Closing Date), and such order, decree, ruling or other action provided that the Seller Representative shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e10.1(d) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from before the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to 60th day after the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialdate hereof.
Appears in 1 contract
Sources: Merger Agreement (Pq Corp)
Termination Events. Without prejudice Subject to other remedies which may be available to the Parties by Law or this AgreementSection 9.2, this Agreement may be terminated and the transactions contemplated hereby may be abandoned may, by notice given before or at any time prior to the Closing:
(a) , be terminated: by mutual written consent of S▇▇▇▇▇ Buyer and B▇▇▇▇;
(b) Seller; by Buyer if Seller has committed a material breach of any material provision of this Agreement and Buyer has not waived such breach; by Seller if the waiting period under the HSR Act Buyer has committed a material breach of any material provision of this Agreement and Seller has not expired waived such breach; by Buyer if the satisfaction of any condition in Article 7 is or terminated becomes impossible (other than through the failure of Buyer to comply with its obligations under this Agreement) and Buyer has not waived such condition; by February 18, 2025 Seller if any condition in Article 8 is not satisfied or becomes impossible (other than through the “HSR Termination Date”), by giving written notice failure of any Seller to Buyer no later than ten (10comply with its obligations under this Agreement) calendar days after the HSR Termination Date.
(c) and Seller has not waived such condition; or by either Buyer or Seller or Buyer by giving written notice to the other Party if the Closing shall has not have occurred by eight (8) months following other than through the date failure of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right any party seeking to terminate this Agreement to comply fully with its obligations under this Agreement) on or before August 1, 2003, or such later date as Buyer and Seller may agree upon. by Buyer pursuant to Section 11.1(c) shall 5.5(b); by Seller pursuant to Section 5.5(c). EFFECT OF TERMINATION Each party’s right of termination under Section 9.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of such right of termination will not be available an election of remedies. If this Agreement is terminated pursuant to any Party if such failure Section 9.1, all obligations of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in parties under this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied andwill terminate, except that the representations in Sections 3.26 and 4.5 and the case of a breach of Buyer’s obligation to effect the Closing obligations in Sections 14.1, 14.2, 14.3 and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach14.15 will survive; provided, however, that the right to terminate if this Agreement under this Section 11.1(d) shall not be available is terminated by a party because of the breach of the Agreement by another party or because one or more of the conditions to a Party whose failure to fulfill any obligation the terminating party’s obligations under this Agreement has been the cause of, or resulted in, the failure is not satisfied as a result of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by party’s failure to comply with its obligations under this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the terminating party’s right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if pursue all legal remedies will survive such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialunimpaired.
Appears in 1 contract
Sources: Stock Purchase Agreement (Knowles Electronics Holdings Inc)
Termination Events. Without prejudice to other remedies which may be available This Agreement may, by written notice given to the Parties by Law Buyer or this Agreementthe Stockholders’ Representatives, this Agreement may as applicable, prior to the Closing, be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ the Buyer and B▇▇▇▇the Stockholders’ Representatives;
(b) by Seller either the Buyer or the Stockholders’ Representatives, if the waiting period under the HSR Act Closing has not expired or terminated occurred by February 18, 2025 (the “HSR Termination Date”); provided, by giving written notice however, that (i) the Buyer will not be entitled to terminate pursuant to this Section 7.1(b) if the Buyer no later than ten or Merger Sub has failed to use commercially reasonable efforts pursuant to Section 5.1, subject to the limitations in Section 5.2, to satisfy the conditions to closing in Section 6.2 and consummate the Transactions and (10ii) calendar days after the HSR Termination Date.Stockholders’ Representatives will not be entitled to terminate pursuant to this Section 7.1(b) if EUSA has failed to use commercially reasonable efforts pursuant to Section 5.1, subject to the limitations in Section 5.2, to satisfy the conditions to closing in Section 6.1 and consummate the Transactions;
(c) by either Seller the Buyer or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party Stockholders’ Representatives if any Governmental Authority Body shall have issued an order, decree or ruling Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this AgreementTransactions, and such order, decree, ruling or Order other action shall not be subject to appeal or shall have become final and unappealable; providednonappealable;
(d) by the Buyer, that the right to terminate this Agreement under this Section 11.1(eif: (i) EUSA shall not be available to any Party if such order, decree, ruling have breached or other Proceeding was caused by or resulted from the failure of such Party failed to perform any of its obligations hereunderrepresentations, warranties, covenants or other agreements contained in this Agreement, which breach or failure would render the condition in Section 6.1(a) or Section 6.1(b) incapable of being satisfied; or (ii) since the date of this Agreement, there shall have occurred any Material Adverse Effect, in the case clauses “(i)” and “(ii)” that is incapable of being cured or satisfied or has not been cured or satisfied by EUSA within thirty (30) days after written notice has been given by the Buyer to EUSA of such breach or failure to perform or Material Adverse Effect;
(e) by the Stockholders’ Representatives, if the Buyer shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure would render the condition in Section 6.2(a) incapable of being satisfied and is incapable of being cured or has not been cured by the Buyer within thirty (30) days after written notice has been given by EUSA to the Buyer of such breach or failure to perform; or
(f) by either Seller or the Buyer if EUSA shall have not delivered to the Buyer by giving written notice to the other Party if Consent Deadline evidence that the Required Stockholder Meeting Vote shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialobtained.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this (a) This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(ai) by mutual written consent of S▇▇▇▇▇ the Purchaser and B▇▇▇▇the Shareholders;
(bii) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after from the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice Purchaser to the other Party Shareholders, if there has been a material breach of any representation, warranty, covenant or agreement by the Closing Company or the Shareholders, or any such representation or warranty shall not have occurred by eight (8) months following become untrue after the date of this Agreement (the “Termination Date”)Agreement, unless extended by written agreement of Seller and Buyer; provided, such that the right to terminate this Agreement under this conditions in Section 11.1(c) shall 7.1 or Section 7.2 would not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has is not been curable or, if curable, is not cured within the earlier of (iA) thirty (30) days after written notification notice thereof is given by the Party seeking termination hereunder Purchaser to the Shareholders, and (iiB) the Termination Expiration Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(eiii) by either Seller or Buyer by giving written notice from the Shareholders to the other Party Purchaser, if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation there has been a material breach of any representation, warranty, covenant or agreement by the Purchaser, or any such representation or warranty shall become untrue after the date of the transactions contemplated by this Agreement, such that the conditions in Section 8.1 or Section 8.2 would not be satisfied and such orderbreach is not curable or, decreeif curable, ruling or other action shall is not be subject to appeal or shall have become final and unappealable; provided, that cured within the right to terminate this Agreement under this Section 11.1(eearlier of (A) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
thirty (f30) by either Seller or Buyer by giving days after written notice thereof is given by the Shareholders to the other Party if Purchaser; and (B) the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Expiration Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(iiv) by either Seller five (5) days’ prior written notice by the Shareholders to the Purchaser or Buyer the Purchaser to the Shareholders, as the case may be, in the event the Closing has not occurred on or prior to 31 July 2022 (the “Expiration Date”) for any reason other than delay or nonperformance of a CFIUS Denialor breach by the party seeking such termination; provided that the parties may mutually agree, in writing, to extend the Expiration Date.
Appears in 1 contract
Sources: Share Purchase Agreement (Synthetic Biologics, Inc.)
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingterminated:
(a) by mutual written consent either Purchaser or Sellers if a material breach of S▇▇▇▇▇ any provision of this Agreement has been committed by the other Party and B▇▇▇▇such breach has not been waived or remedied by the defaulting party within thirty (30) days as of the receipt of the relevant notice of breach by the other Party; provided that the right to terminate this Agreement pursuant to this Section 13.1(a) shall not be available to the Purchaser or Sellers, as applicable, at any time that such Party has violated, or is in breach of, any covenant, representation or warranty hereunder (and such violation or breach has not been waived by the other Party) such that the conditions set forth in Section 5.2 or Section 5.3, as applicable, are not satisfied;
(b) by Seller if at any time before the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Closing Date”), by giving written notice to Buyer no later than ten (10) calendar days after agreement between the HSR Termination Date.Purchaser and each of the Sellers;
(c) by either Seller the Purchaser, on the one hand, or Buyer by giving each of the Sellers, on the other hand, upon written notice to the other Party Party, if the Closing Date shall not have occurred by eight within seven (8) 7) months following from the date of this Agreement hereof (the “Termination DateClosing Deadline”), unless extended by written agreement of Seller and Buyer; provided, however, that the right to terminate this Agreement under this Section 11.1(c13.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur be consummated on or before such date;prior to the Closing Deadline; or
(ed) by either Seller or Buyer by giving written notice the Sellers if (i) all the conditions set forth in Section 5.3 have been satisfied, and (ii) the Purchaser fails to obtain the Debt Financing until the Closing Deadline. For the avoidance of doubt, Purchaser’s failure to close due to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any unavailability of the transactions contemplated by this AgreementDebt Financing (or any alternative financing, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(eas applicable) shall not be available deemed to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon be a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms breach for purposes of Section 7.3 13.1(a) so long as the Purchaser has performed in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialits obligations under Section 11.1.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available By notice given prior to the Parties by Law or this AgreementClosing, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingas follows:
(a) by By mutual written consent of S▇▇▇▇▇▇ and B▇▇▇▇;the Sellers holding not less than 75% of the Company Units.
(b) by Seller if By Parent or the waiting period under Sellers holding not less than 75% of the HSR Act has not expired Company Units:
(i) If any applicable Law makes consummation of the Contemplated Transactions illegal or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Dateotherwise prohibited.
(cii) by either Seller If consummation of the Contemplated Transactions would violate any non-appealable final Order of any court or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and BuyerGovernment Agency having competent jurisdiction; provided, provided that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d8.1(b)(ii) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding Order was caused by or resulted from primarily due to the failure of such Party to perform any of its obligations hereunder;under this Agreement.
(fiii) If the Closing has not occurred on or before May 1, 2024, or such later date as the Parties may agree in writing (the “End Date”), unless the terminating Party is in material breach of this Agreement and such material breach causes, or results in, the failure of the Closing to occur by the End Date; provided, that if on May 1, 2024, (A) all of the conditions to the Closing described in Article VII other than the receipt of one or more Required Regulatory Approvals contemplated in Section 7.1(a) and actions that by their nature are to be performed or waived at the Closing have been satisfied or (B) Parent has exercised its right to delay the Closing as provided in Section 1.14, then the “End Date” shall automatically be extended to and shall be deemed to be July 1, 2024.
(c) By Parent if (i) any of the representations and warranties of the Sellers or the Company contained in this Agreement fail to be true, correct and complete, or any such representation or warranty shall have become untrue, incorrect or incomplete after the Agreement Date, in either Seller case such that the condition set forth in Section 7.2(a) would not be satisfied or Buyer (ii) the Sellers or the Company have breached or failed to comply with any of their respective covenants or obligations under this Agreement to the extent required to be performed prior to the Closing such that the condition set forth in Section 7.2(b) (other than with respect to covenants to be performed on the Closing Date) would not be satisfied and such failure or breach with respect to any such representation, warranty, covenant or obligation cannot be cured or has not been cured by the earlier of 30 days after the giving of written notice to the other Party Company and the Seller Representative of such failure or breach and the End Date; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to Parent if the Stockholder Meeting there shall have been held and completed and the Stockholder Approval shall not have been obtained an inaccuracy in any representation or warranty made by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (Parent in this Agreement or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board Parent shall have made a Change failed to perform all of Recommendation;
(h) by Seller at any time its covenants or obligations required to be performed under this Agreement to the extent required to be performed prior to the Termination DateClosing, if Seller has complied with in either case, such that the terms of conditions set forth in Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement 7.3(a) or Section 7.3(b) (other than with respect to a Superior Proposal concurrently with covenants to be performed on the termination Closing Date) would not be satisfied.
(d) By the Sellers holding not less than 75% of this Agreement; or
the Company Units if (i) any of the representations and warranties of Parent contained in this Agreement fail to be true, correct and complete, or any such representation or warranty shall have become untrue, incorrect or incomplete after the Agreement Date, in either case such that the condition set forth in Section 7.3(a) would not be satisfied, (ii) Parent has breached or failed to comply with any of its covenants or obligations under this Agreement to the extent required to be performed prior to the Closing such that the condition set forth in Section 7.3(b) (other than with respect to covenants to be performed on the Closing Date) would not be satisfied and such failure or breach with respect to any such representation, warranty, covenant or obligation cannot be cured or has not been cured by the earlier of 30 days after the giving of written notice to Parent of such failure or breach and the End Date or (iii) within five (5) Business Days after the Company delivers a notice to Parent irrevocably certifying that (A) all conditions to the Closing set forth in Section 7.1 and Section 7.3 have been satisfied or waived and (B) the Company and the Sellers are ready, willing and able to complete the Closing, Parent fails to complete the Closing on the basis that the Debt Financing or any other financing is not available; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to the Sellers if there shall have been an inaccuracy in any representation or warranty made by the Sellers or the Company in this Agreement or the Sellers or the Company shall have failed to perform all of their respective covenants or obligations required to be performed under this Agreement to the extent required to be performed prior to the Closing, in either Seller case, such that the conditions set forth in Section 7.2(a) or Buyer in Section 7.2(b) (other than with respect to covenants to be performed on the event of a CFIUS DenialClosing Date) would not be satisfied.
Appears in 1 contract
Sources: Merger Agreement (Shenandoah Telecommunications Co/Va/)
Termination Events. Without prejudice to other remedies which may be available to (1) The occurrence of any one or more of the Parties by Law or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closingfollowing events shall constitute a Termination Event:
(a) any representation, warranty, certification or statement made by mutual written consent Tyson, the Transferor, the Collection Agent, any Agent Seller or any Seller in this Agreement, any other Transaction Document to which it is a party or in any other document delivered pursuant hereto or thereto shall prove to have been incorrect in any material respect when made or deemed made; provided that no such event shall constitute a Termination Event unless such event shall continue unremedied for a period of S▇▇▇▇▇ ten (10) days from the date a Responsible Officer of the Transferor obtains knowledge thereof; provided further that no grace period shall apply to Sections 3.01(c), 3.01(d), 3.01(j), 3.01(q) and B▇▇▇▇;3.01(r) of this Agreement (and, for the avoidance of doubt, the cure period described in the first proviso of this Section 7.01(1)(a) shall not apply to payments required to be made pursuant to Section 2.10(b)); and provided further that no such event shall constitute a Termination Event if the Transferor shall have timely paid to the Collection Agent the Deemed Collection required to be paid as a result of such event in accordance with Section 2.10(b); or
(b) by Seller if after the waiting period under filing in the HSR Act has not expired or terminated by February 18, 2025 (appropriate offices of the “HSR Termination Date”financing statements described in Sections 4.01(c), by giving written notice 4.01(d), 4.01(e) and 4.01(f), the Administrative Agent, on behalf of the CP Conduit Purchasers and the Committed Purchasers, shall, for any reason, fail or cease to Buyer no later than ten (10) calendar days after have a valid and perfected first priority ownership or security interest in the HSR Termination Date.Receivables and Related Security, Collections and Proceeds with respect thereto, free and clear of any Adverse Claims; or
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing a Collection Agent Default shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyeroccurred; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;or
(d) the Transferor, Tyson or any Seller shall enter into any corporate transaction or merger whereby it is not the surviving entity (other than, in the case of any Seller, a merger or consolidation which does not, in the opinion of the Required Committed Purchasers, materially adversely affect the collectibility of the Receivables sold by either such Seller or Buyer by giving written notice to the other Party if performance of such other Party has breached its representations, warranties, covenants, agreements Seller’s obligations under the transaction documents); or
(e) there shall have occurred since the Closing Date any event or other obligations hereunder in a manner that would condition which could reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of have a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of Material Adverse Effect; or
(f) (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and Percentage Factor exceeds the Maximum Percentage Factor unless the Transferor reduces the Net Investment from previously received Collections or other funds available to the Transferor or increases the balance of the Receivables on the next Business Day following such breach so as to reduce the Percentage Factor to less than or equal to the Maximum Percentage Factor; or (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breachNet Investment shall exceed the Program Limit; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);or
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;average Dilution Ratio for the three preceding Settlement Periods exceeds 1.85%; or
(h) by Seller at any time prior to the Termination Date, if Seller has complied with average Default Ratio for the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreementthree preceding Settlement Periods exceeds 1.85%; or
(i) the average Delinquency Ratio for the three preceding Settlement Periods exceeds 6.75%; or
(j) either (i) a Credit Agreement Event of Default shall have occurred and be continuing or (ii) the failure of Tyson or any other Seller to pay indebtedness in excess of $50,000,000 when due (after giving effect to any applicable cure period) or any such indebtedness shall become accelerated by either the holders thereof; or
(k) the Receivables Purchase Agreement is terminated; or
(l) a trust has been properly preserved pursuant to PASA; or
(m) Tyson’s Index Rating is BB- or Ba3 or lower or Tyson is not rated by S&P or ▇▇▇▇▇’▇, respectively; or
(n) Tyson and the Sellers (in the aggregate) shall fail to maintain 100% ownership of the Transferor; or
(o) a Default.
(2) The occurrence of any one or more of the following events shall constitute a Default:
(a) Tyson, the Transferor, any Seller, any Agent Seller or Buyer the Collection Agent shall fail to make any payment or deposit to be made by it hereunder or under any of the Transaction Documents when due hereunder or thereunder and such failure continues for one (1) Business Day; or
(b) Tyson, the Transferor, any Seller, any Agent Seller or the Collection Agent shall default in the performance of any undertaking (other than those covered by clause (a) above) under any Transaction Document and such default shall continue for ten (10) days after a Responsible Officer of the Transferor, the Collection Agent or Tyson has knowledge thereof; or
(c) the Transferor shall fail to make any payment of principal or interest in respect of any Indebtedness (other than Indebtedness under the Transaction Documents) when and as the same shall become due and payable after giving effect to any applicable grace period with respect thereto; or any event or condition occurs that results in any such Indebtedness becoming due prior to its scheduled maturity or that enables or permits the holder or holders of any such Indebtedness or any trustee or agent on its or their behalf to cause any such Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(d) any Event of Bankruptcy shall occur with respect to (i) any Seller that is a CFIUS DenialFoodbrands Entity that has less than $5,000,000 in Receivables as of the date of such Event of Bankruptcy or any Subsidiary (other than an Inactive Subsidiary) of Tyson that is not a Seller, or (ii) the Transferor, Tyson, the Collection Agent, or any Seller other than a Seller referred to in clause (i); or
(e) a Responsible Officer of the Transferor receives notice or becomes aware that a notice of lien has been filed against the Transferor or Tyson under Section 412(n) of the Code or Section 302(f) of ERISA for a failure to make a required installment or other payment to a plan to which Section 412(n) of the Code or Section 302(f) of ERISA applies; or
(f) any default or breach under Section 7.11 of the Five Year Credit Agreement, without giving effect to any expiration or termination thereof or any amendment, waiver or modification thereof, and such default or breach continues for 10 days after a Responsible Officer of Tyson has knowledge thereof.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this (a) This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to before the Closing:
(ai) by By the mutual written consent of S▇B▇▇▇▇ and BS▇▇▇▇▇;
(bii) by By either Buyer or Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party for any reason if the Closing shall has not have occurred by eight (8) months the date that is 60 days following the date of this Agreement Agreement, unless otherwise mutually agreed in writing by the parties, or such later date as the parties may agree in writing (the “Termination Outside Date”); provided, unless extended by written agreement however, that a party shall not have the right to terminate this Agreement under this provision if the failure to close on or prior to such date is a result of such party’s failure to perform any of its obligations hereunder;
(iii) By either Buyer or Seller and Buyerif any Governmental Authority has issued a final, non-appealable Governmental Order enjoining, restraining, making illegal or otherwise permanently prohibiting the Contemplated Transactions; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d7.1(a)(iii) shall not be available to a Party whose failure to fulfill party if it is then in material breach of any obligation under this Agreement has been the cause ofrepresentation, warranty, covenant, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 agreement contained in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(iiv) By either Buyer or Seller by either Seller or Buyer written notice to the other party in the event of a CFIUS Denialbreach by Buyer, if Seller is seeking to terminate this Agreement, or Seller, if Buyer is seeking to terminate this Agreement, of any representations and warranties, covenant or agreement set forth in this Agreement, where the effect of such breach would be to cause the conditions to the obligation to consummate the Closing of Seller, if the breaching party is Buyer, or Buyer, if the breaching party is Seller, not to be capable of being satisfied, and such breach is not cured by the breaching party within twenty (20) Business Days following receipt of written notice from the terminating party of the breach or alleged breach, which written notice shall state that, unless such breach is cured in accordance with this Section 7.1, the terminating party intends to terminate this Agreement (it being understood that such twenty (20) Business Day cure period shall not extend beyond the date set forth in Section 7.1(a)(ii)).
(b) Any termination of this Agreement under this Section 7.1 shall be effected by the delivery of written notice by the terminating party to the other party.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the ClosingClosing as follows, and in no other manner:
(a) by mutual written consent of S▇▇▇▇▇ Motorola and B▇▇▇▇TPG Holding;
(b) by Seller Motorola if the waiting period under Closing of the HSR Act has transactions contemplated by this Agreement shall not expired have occurred on or terminated before September 1, 1999, or such later date as may have been agreed upon in writing by February 18the parties, 2025 (the “HSR Termination Date”)PROVIDED, that any such failure to close is not 109 due to any failure to perform, default or breach by Motorola; PROVIDED, FURTHER, that Motorola may, in its sole discretion, by giving providing written notice to Buyer TPG Holding no later than ten (10) calendar days after the HSR Termination Date.August 27, 1999, extend such date from September 1, 1999 to October 1, 1999; PROVIDED, FURTHER, if such date is extended to October 1, 1999, Motorola may, in its sole discretion, by providing written notice to TPG Holding no later than September 27, 1999, further extend such date from October 1, 1999 to November 1, 1999;
(c) by either Seller or Buyer by giving written notice to the other Party TPG Holding, if the Closing of the transactions contemplated by this Agreement shall not have occurred by eight (8) months following on or before the later of September 1, 1999, and the date as extended by Motorola pursuant to clause (b) above, or such later date as may have been agreed upon in writing by the parties; PROVIDED, that any such failure to close is not due to any failure to perform, default or breach by TPG Acquisition or TPG Holding;
(d) by TPG Holding, provided it is not then in breach of any of its obligations hereunder, if Motorola fails to perform in any material respect any covenant in this Agreement when performance thereof is due or Motorola shall have breached in any material respect any of the representations and warranties contained in this Agreement and does not cure the failure or breach within thirty (30) days after TPG Holding delivers written notice thereof; or if there has been a material breach by Motorola of any of its representations, warranties or covenants under this Agreement and the “Termination Date”)Collateral Agreements which breach is not curable, unless extended by or, if curable, is not cured within thirty (30) days of written agreement of Seller and Buyernotice thereof; providedPROVIDED, that TPG Holding shall not have the right to terminate this Agreement under this Section 11.1(cSECTION 14.1(d) for reason of a material breach by Motorola of any representation or warranty made by it in this Agreement if Motorola shall not be available to any Party if prove that such failure breach and the extent thereof was actually known by a member of the Closing to occur TPG Team on the date hereof; 110
(e) by the Termination Date was primarily due to the Motorola, provided it is not then in breach or violation of any representationsof its obligations hereunder, warranties, covenants if TPG Acquisition or agreements TPG Holding fails to perform in any material respect any covenant in this Agreement when performance thereof is due or TPG Acquisition or TPG Holding shall have breached in any material respect any of the representations and warranties contained in this Agreement by such Party;
and does not cure the failure or breach within thirty (d30) by either Seller or Buyer by giving business days after Motorola delivers written notice to the other Party thereof; or if such other Party there has breached been a material breach by TPG Acquisition or TPG Holding of any of its representations, warrantieswarranties or covenants under this Agreement which breach is not curable, covenantsor, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII if curable, is not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after of written notification thereof by the Party seeking notice thereof. Any termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues pursuant to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) ARTICLE XIV shall not be available to a Party whose failure to fulfill limit or restrict the rights or other remedies of any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such dateparty;
(ef) by TPG Holding if it reasonably determines that either the conditions set forth in SECTION 12.7 or the conditions set forth in SECTION 12.8 cannot be satisfied prior to November 1, 1999;
(g) by either Seller TPG Holding or Buyer by giving written notice to the other Party Motorola if any Governmental Authority shall have issued an a permanent injunction, order, decree or ruling or taken any other action (which injunction, order, decree or ruling TPG Holding and Motorola shall use their Reasonable Efforts to lift), in each case permanently restraining, enjoining enjoining, rendering unlawful or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, the Reorganization Agreement or the Collateral Agreements or any material part thereof in accordance with the terms hereof or thereof, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendationnonappealable;
(h) by Seller at any time TPG Holding if there shall have occurred a Material Adverse Effect which it reasonably determines is not likely to be cured prior to November 1, 1999; 111 PROVIDED, that if Motorola notifies TPG Holding in writing of the Termination Dateexistence of a Material Adverse Effect occurring after the date hereof, if Seller has complied with TPG Holding shall be entitled to terminate this Agreement pursuant to this SECTION 14.1(h) by reason of the terms events, circumstances or state of Section 7.3 facts having such Material Adverse Effect only for a period of 30 days following TPG Holding's receipt of Motorola's written notice; PROVIDED FURTHER, HOWEVER, that TPG Holding's right to terminate this Agreement shall be reinstated in all the event that there shall occur a material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination adverse exacerbation of this Agreementsuch events, circumstances or state of facts; or
(i) by either Seller or Buyer TPG Holding if the condition set forth in the event of a CFIUS DenialSECTION 12.11 shall not have been satisfied prior to August 1, 1999.
Appears in 1 contract
Sources: Agreement and Plan of Recapitalization and Merger (Semiconductor Components Industries LLC)
Termination Events. Without prejudice to other remedies which may be available to The Guarantor (or the Parties by Law Cash Manager or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing:Bond Trustee on its behalf):
(a) by mutual may (with the prior written consent of S▇▇▇▇▇ and B▇▇▇▇the Bond Trustee, which consent shall not be withheld unless the Bond Trustee determines that the termination of this Agreement would be materially prejudicial to the interests of the holders of the Covered Bonds) terminate this Agreement in the event that the matters specified in paragraph (i), (vi) or (vii) below occur;
(b) by Seller if shall (with the waiting period under prior written consent of the HSR Act has Bond Trustee, which consent shall not expired or terminated by February 18, 2025 (be withheld unless the “HSR Termination Date”Bond Trustee determines that the termination of this Agreement would be materially prejudicial to the interests of the holders of the Covered Bonds), by giving written notice and the Bond Trustee may in such circumstances, terminate this Agreement in the event that any of the matters specified in paragraphs (iii) to Buyer no later than ten (10v) calendar days after the HSR Termination Date.(inclusive) below occur; and
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this in the event that the matter specified in paragraph
(ii) below occurs, in each case by serving a written notice of termination on the Account Bank (such termination to be effective three Canadian Business Days following service of such notice and, in the case of Section 11.1(c) shall not be available to 8.1(c), no later than five Canadian Business Days following the occurrence of any Party if such failure of the Closing matters specified therein) directing the Account Bank to occur transfer all funds standing in the Guarantor Accounts maintained by the Termination Date was primarily due Account Bank to the breach Standby Account Bank in any of the following circumstances:
(i) if a deduction or violation withholding for or on account of any representationstaxes is imposed, warrantiesor it appears likely that such a deduction or withholding will be imposed, covenants or agreements contained in this Agreement by such Partyrespect of the interest payable on any Guarantor Account;
(dii) if the applicable ratings of the Account Bank by either Seller one or Buyer by giving written notice to more Rating Agencies fall below the other Party Account Bank Threshold Ratings;
(iii) if such other Party has breached its representationsthe Account Bank, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition otherwise than for the purposes of such Party giving notice set forth amalgamation or reconstruction as is referred to in Article VIII paragraph (iv) below, ceases or, through an authorized action of the board of directors of the Account Bank, threatens to cease to carry on all or substantially all of its business;
(iv) if an order is made or an effective resolution is passed for the winding-up of the Account Bank except a winding-up for the purposes of or pursuant to a solvent amalgamation or reconstruction the terms of which have previously been approved in writing by the Guarantor and the Bond Trustee (such approval not to be satisfied andunreasonably withheld or delayed);
(v) if proceedings are initiated against the Account Bank under any applicable liquidation, insolvency, bankruptcy, sequestration, composition, reorganisation (other than a reorganisation where the Account Bank is solvent), winding up or other similar laws (including, but not limited to, presentation of a petition for an administration order) and (except in the case of a breach presentation of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, petition for an administration order) such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, butproceedings are not, in each casethe reasonable opinion of the Guarantor, only as long as such being disputed in good faith with a reasonable prospect of success or an administration order is granted or an administrative receiver or other Party continues receiver, liquidator, trustee in sequestration or other similar official is appointed in relation to use its reasonable best efforts the Account Bank or in relation to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill whole or any obligation under this Agreement has been substantial part of the cause ofundertaking or assets of the Account Bank, or resulted in, the failure an encumbrancer takes possession of the Closing whole or any substantial part of the undertaking or assets of the Account Bank, or a distress, execution or diligence or other process is levied or enforced upon or sued out against the whole or any substantial part of the undertaking or assets of the Account Bank and such possession or process (as the case may be) is not discharged or otherwise ceases to occur on apply within 30 days of its commencement, or before such datethe Account Bank initiates or consents to judicial proceedings relating to itself under applicable liquidation, insolvency, bankruptcy, composition, reorganisation, winding up or other similar laws or makes a conveyance or assignment for the benefit of its creditors generally;
(evi) default is made by either Seller the Account Bank in the performance or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation observance of any of its covenants and obligations, or a breach by the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure Account Bank is made of such Party to perform any of its obligations hereunder;
(f) by either Seller representations and warranties, respectively, under Sections 7.1(d), 7.1(e), 7.1(f), 7.1(g), or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken7.1(h);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(ivii) default is made by either Seller or Buyer the Account Bank in the event performance or observance of any of its other covenants and obligations under this Agreement and such default continues unremedied for a period of 30 days after the earlier of the Account Bank becoming aware of such default and receipt by the Account Bank of written notice from the Bond Trustee requiring the same to be remedied, and the Guarantor (or the Cash Manager on its behalf) or the Bond Trustee, as the case may be, shall concurrently with the delivery of a CFIUS Denialwritten notice of termination to the Account Bank, serve a Standby Account Bank Notice on the Standby Account Bank.
Appears in 1 contract
Sources: Bank Account Agreement
Termination Events. Without prejudice to other remedies which may be available to the Parties This Agreement may, by Law written notice given before or this Agreement, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Closing, be terminated:
(a) by mutual written consent of S▇▇▇▇▇ the Purchaser and B▇▇▇▇the Seller Representative;
(b) by Seller if the waiting period under Purchaser (so long as the HSR Act has Purchaser is not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and Buyer; provided, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the then in material breach or violation of any of its representations, warranties, covenants or agreements contained in this Agreement Agreement) if there has been a breach of any of the Seller Representative’ or the Company’s representations, warranties, covenants or agreements contained in this Agreement, which would result in the failure of a condition set forth in Section 6.1(a) or Section 6.1(b), and which breach has not been cured or cannot be cured within thirty (30) days after the notice of the breach from the Purchaser to Seller Representative;
(c) by such Partythe Seller Representative (so long as neither the Company nor any of the Seller Representative is then in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement) if there has been a breach of any of the Purchaser’s representations, warranties, covenants or agreements contained in this Agreement, which would result in the failure of a condition set forth in Section 6.2(a) or Section 6.2(b), and which breach has not been cured or cannot be cured within thirty (30) days after the notice of breach from the Seller Representative to Purchaser;
(d) by either the Purchaser if there has been a Material Adverse Effect, unless cured by Seller or Buyer by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of forty-five (i) thirty (3045) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure notice of the Closing breach from the Purchaser to occur on or before such date;Seller Representative; or
(e) by either the Purchaser or the Seller or Buyer by giving written notice to the other Party Representative if any Governmental Authority shall have has issued an order, decree or ruling a non-appealable final Judgment or taken any other action non-appealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this This Agreement may be terminated at any time prior to Closing:
(a) by the Purchaser, the Sellers' Representative and the transactions contemplated hereby may be abandoned Company by mutual written consent at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
(b) by Seller the Purchaser, the Sellers' Representative or the Company if the waiting period under Closing shall not have been consummated on or before July 2, 2004 (U.S. west coast time); provided, however, that if a Force Majeur prevents the HSR Act has not expired or terminated Parties from holding the Closing by February 18such date, 2025 (the “HSR Termination Date”), this date shall be automatically extended by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.days;
(c) by either Seller the Company, the Sellers' Representative or Buyer the Purchaser if there shall be any law or regulation that makes consummation of the Basic Transaction or the exercise of the Option illegal or otherwise prohibited or if consummation of the Basic Transaction or the exercise of the Option would violate any nonappealable final order, decree or judgment of any court or governmental body having competent jurisdiction;
(d) by the Purchaser by giving written notice to the other Party if Company at any time prior to the Closing shall not have occurred by eight (8) months following i) in the date of this Agreement (event the “Termination Date”)Company has breached any representation, unless extended by written agreement of Seller and Buyer; providedwarranty, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party if such failure of the Closing to occur by the Termination Date was primarily due to the breach or violation of any representations, warranties, covenants or agreements covenant contained in this Agreement in any material respect, the Purchaser has notified the Company of the breach, and the breach has continued without cure for a period of thirty (30) days after the notice of breach or (ii) if events occur which render impossible compliance with one or more conditions set forth in Schedule F and such conditions are not waived by the Purchaser; provided that such Party;events did not result from any action or omission by the Purchaser which was within its control and which the Purchaser was not expressly permitted to take or omit by the terms of this Agreement; and
(de) by either Seller or Buyer the Company by giving written notice to the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice set forth in Article VIII not to be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller Purchaser at any time prior to the Termination DateClosing (i) in the event the Purchaser has breached any representation, warranty, or covenant contained in this Agreement in any material respect, the Company has notified the Purchaser of the breach, and the breach has continued without cure for a period of (thirty) 30 days after the notice of breach or (ii) if Seller has complied events occur which render impossible compliance with one or more conditions set forth in Schedule G, and such conditions are not waived by the Company; provided that such events did not result from any action or omission by the Company which was within the control of the Company and which the Company was not expressly permitted to take or omit by the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denial.
Appears in 1 contract
Termination Events. Without prejudice to This Agreement may, by written notice given before or at the Phase I Closing, be terminated; (r) by mutual consent of the Purchaser and the Seller; (s) by either the Purchaser or the Seller if any Governmental Authority has issued a nonappealable final Judgment or taken any other remedies which may be available to nonappealable final action, in each case having the Parties by Law effect of permanently restraining, enjoining or this Agreement, this Agreement may be terminated and otherwise prohibiting the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of S▇▇▇▇▇ and B▇▇▇▇;
(b) by Seller if the waiting period under the HSR Act has not expired or terminated by February 18, 2025 (the “HSR Termination Date”), by giving written notice to Buyer no later than ten (10) calendar days after the HSR Termination Date.
(c) by either Seller or Buyer by giving written notice to the other Party if the Closing shall not have occurred by eight (8) months following the date of this Agreement (the “Termination Date”), unless extended by written agreement of Seller and BuyerAgreement; provided, however, that the right to terminate this Agreement under this Section 11.1(c7.1(b) shall will not be available to any Party party whose failure to fulfill any covenant under this Agreement, including the obligations of the parties under Section 5.3, has been the principal cause of the action or event described in this Section 7.1(b) occurring; (t) by the Purchaser, with written notice to the Seller, if the Phase I Closing has not occurred on or before the ninetieth day following the date hereof (the “Phase I Outside Date”), unless such date shall be extended by the mutual consent of the Seller and the Purchaser; provided, that the failure of the Phase I Closing to occur have occurred on or prior to the Phase I Outside Date shall not have been principally caused by the Termination Date was primarily due breach of this Agreement by the party seeking termination pursuant to this Section 7.1(c); (u) by the Seller, with written notice to the Purchaser, if the Phase I Closing has not occurred on or before the Phase I Outside Date; provided, that the failure of the Phase I Closing to have occurred on or prior to the Phase I Outside Date shall not have been principally caused by the breach of this Agreement by the party seeking termination pursuant to this Section 7.1(d); (v) by the Purchaser, with written notice to the Seller, if there has been a breach of any representation, warranty, covenant or agreement on the part of the Seller contained in this Agreement such that the conditions set forth in Section 6.1(a)(i), (a)(ii) or (a)(vi) would not be satisfied and (i) such breach is not reasonably capable of being cured within thirty (30) calendar days of notice of such breach or violation (ii) in the case of a breach of a covenant or agreement, if such breach is reasonably capable of being cured within thirty (30) calendar days of notice of such breach, such breach has not been cured prior to the earlier of the Phase I Outside Date and the end of such thirty (30) day period; provided, that the Purchaser shall not have the right to terminate this Agreement pursuant to this Section 7.1(e) if the Purchaser or any of its Affiliates is then in material breach of any of its representations, warranties, covenants or agreements in this Agreement such that the conditions precedent set forth in Section 6.2(a) or (b) would not then be satisfied; (w) by the Seller, with written notice to the Purchaser, if there has been a breach of any representation, warranty, covenant or agreement on the part of the Purchaser contained in this Agreement such that the conditions set forth in Section 6.2(a) or (b) would not be satisfied and (i) such breach is not reasonably capable of being cured within thirty (30) calendar days of notice of such breach or (ii) if such breach is reasonably capable of being cured within thirty (30) calendar days of notice of such breach, such breach has not been cured prior to the earlier of the Phase I Outside Date and the end of such thirty (30) day period; provided, that the Seller shall not have the right to terminate this Agreement pursuant to this Section 7.1(f) if the Seller or any of its Affiliates is then in material breach of any representations, warranties, covenants or agreements contained in this Agreement by such Party;
(d) by either Seller or Buyer by giving written notice to that the other Party if such other Party has breached its representations, warranties, covenants, agreements or other obligations hereunder in a manner that would reasonably be expected to cause any condition of such Party giving notice conditions precedent set forth in Article VIII Section 6.1(a)(i) or (a)(ii) would not to then be satisfied and, except in the case of a breach of Buyer’s obligation to effect the Closing and pay the Closing Cash Consideration in accordance with the terms of Article VIII, such breach has not been cured within the earlier of (i) thirty (30) days after written notification thereof by the Party seeking termination hereunder and (ii) the Termination Date, but, in each case, only as long as such other Party continues to use its reasonable best efforts to cure such breach; provided, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to a Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(e) by either Seller or Buyer by giving written notice to the other Party if any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall not be subject to appeal or shall have become final and unappealable; provided, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to any Party if such order, decree, ruling or other Proceeding was caused by or resulted from the failure of such Party to perform any of its obligations hereunder;
(f) by either Seller or Buyer by giving written notice to the other Party if the Stockholder Meeting shall have been held and completed and the Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof at which such vote was taken);
(g) by either Seller or Buyer if the Seller Board shall have made a Change of Recommendation;
(h) by Seller at any time prior to the Termination Date, if Seller has complied with the terms of Section 7.3 in all material respects and the Seller Board authorizes Seller to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal concurrently with the termination of this Agreement; or
(i) by either Seller or Buyer in the event of a CFIUS Denialsatisfied.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement