Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below): (a) by mutual written consent duly authorized by the boards of directors of Parent and the Company; (b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; (c) by either Parent or the Company 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 the Merger; (d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement; (e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement; (f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred; (g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred; (h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and (i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Merger Agreement (Diversa Corp)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval Each of the issuance following events or occurrences described in this Section 8.1 shall constitute a “Termination Event” (each event which with notice or the passage of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified belowtime or both would become a Termination Event being referred to herein as an “Unmatured Termination Event”):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the CompanyTermination Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Parent it under this Agreement or the Company if the Merger any other Transaction Document to which it is a party and such failure shall not remain unremedied for two (2) Business Days;
(c) any written representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement, any other Transaction Documents to which it is a party, or any other written information or report delivered pursuant hereto or thereto shall prove to have been consummated by August 15, 2007incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, that the right to terminate this Agreement under this Section 9.1(b) such breach shall not be available constitute a Termination Event pursuant to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
clause (c) by either Parent if such breach, solely to the extent capable of cure, is cured within ten (10) Business Days (or two (2) Business Days with respect to a breach in the information set forth in an Interim Report) following the date that a Financial Officer or other Responsible Officer has knowledge or has received notice of such breach provided, further that no breach of a representation or warranty set forth in Section 5.1(p), (t), (x) or (y) shall constitute a Termination Event pursuant to this clause (c) if credit has been given for a reduction of the Purchase Price, the outstanding principal balance of the applicable Subordinated Note has been reduced or the Company if applicable Originator has made a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable ordercash payment to the Buyer, decree or rulingin any case, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergeras required pursuant to Section 3.3(c) with respect to such breach;
(d) by either Parent any Originator shall fail to perform or the Company if (i) the Company Stockholders’ Meeting (including observe any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreementother term, and (ii) covenant or agreement contained in this Agreement shall not have been adopted at the Company Stockholders’ Meeting (or any other Transaction Document to which it is a party on its part to be performed or observed and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; providedsuch failure, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available solely to the Company where the failure to obtain the Required Company Stockholder Approval extent capable of cure, shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;continue unremedied for ten (10) Business Days; or
(e) by either Parent any Insolvency Proceeding shall be instituted against any Originator and such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days or any of the actions sought in such proceeding (including the entry of an order for relief against, or the Company if the Parent Stockholders’ Meeting (including appointment of a receiver, trustee, custodian or other similar official for, it or for any adjournments and postponements thereofsubstantial part of its property) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in occur. In this Agreement, “Insolvency Proceeding” includes, for greater certainty, any case, action or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that proceeding under the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Insolvency Statutes.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;Purchaser if:
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes there is a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach Breach of any representation, warranty, covenant or agreement obligation of the Company under this Agreement or of the Inventor under the Inventor Agreement;
(ii) the Purchaser reasonably determines that the timely satisfaction of any condition set forth in Article VIII has become impossible or impractical (other than as a result of any failure on the part of Parent the Purchaser to comply with or Merger Sub set forth in perform its covenants and obligations under this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate);
(iii) the Purchaser is not, in either case such that its reasonable discretion, satisfied with the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as results of its due diligence review of the time of such breach or as of the time such representation or warranty shall have become inaccurateCompany, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not the Purchaser's right to terminate pursuant to this Section 9.1(h10.1(a)(iii) as shall exist only during the Due Diligence Review Period;
(iv) a result Governmental Authorization required for consummation of the Merger and the other Transactions shall have been denied by final nonappealable action of the Governmental Body responsible for such particular breach Governmental Authorization or inaccuracy until a Governmental Body issues a final nonappealable order blocking the earlier of Merger; or
(iv) the expiration of Company modifies or amends its Disclosure Schedule and discloses any items or events that have resulted in or are likely to result in a 30 day period commencing upon delivery of written notice from Material Adverse Change.
(b) by the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); andif:
(i) by Parent, upon there is a breach material Breach of any representation, warranty, covenant or agreement obligation of the Purchaser;
(ii) the Company reasonably determines that the timely satisfaction of any condition set forth in Article IX has become impossible or impractical (other than as a result of any failure on the part of the Company to comply with or perform any covenant or obligation set forth in this Agreement, or if any representation or warranty );
(iii) a Governmental Authorization required for consummation of the Company set forth in this Agreement Merger and the other Transactions shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as been denied by final nonappealable action of the time of Governmental Body responsible for such breach Governmental Authorization or as of a Governmental Body issues a final nonappealable order blocking the time such representation Merger;
(iv) the Purchaser modifies or warranty shall amends its Disclosure Schedule and disclosed any items or events that have become inaccurate, provided resulted in or are likely to result in a Material Adverse Change;
(v) the Purchaser or Merger Sub modifies the Purchaser Disclosure Schedule and discloses any items or events that if such inaccuracy have resulted in the Company’s representations and warranties or breach by are likely to result in a Material Adverse Change; or
(vi) the Company is curable by not, in its reasonable discretion, satisfied with the Company then this Agreement shall not results of its due diligence review of the Purchaser; provided, that the Company's right to terminate pursuant to this Section 9.1(i10.1(b)(vi) shall exist only during the Due Diligence Review Period.
(c) by the Purchaser or the Company if the Closing has not taken place on or before June 1, 2002 (other than as a result of such particular breach or inaccuracy until any failure on the earlier part of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent party seeking to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that terminate this Agreement shall not terminate pursuant to materially comply with or perform its covenants and obligations under this Section 9.1(iAgreement); and
(d) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)mutual written consent of the Purchaser and the Company.
Appears in 1 contract
Samples: Merger Agreement (Innovative Gaming Corp of America)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by the boards of directors of Parent Purchaser and the Company;
(b) by either Parent or the Company Purchaser if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such date 5:00 p.m. (Alaska time) on December 1, 2014 (the “End Date”) and such action any condition set forth in Section 8 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 act constitutes a breach comply with or perform any covenant or obligation of Purchaser set forth in this Agreement);
(c) by either Parent the Company or the Sellers if the Closing has not taken place on or before 5:00 p.m. (Alaska time) on the End Date and any condition set forth in Section 9 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 the Company, any of the Sellers to comply with or perform any covenant or obligation set forth in this Agreement);
(d) by Purchaser if the approval of any Governmental Entity required for consummation of the transactions contemplated by this Agreement shall have been denied by final nonappealable action of such Governmental Entity or if an application therefor shall have been permanently withdrawn at the request of a Governmental Entity;
(e) by Purchaser or the Company if if: (i) a court of competent jurisdiction or other Governmental Body Entity shall have issued a final and nonappealable order, decree or rulingOrder, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergertransactions contemplated by this Agreement; or (ii) there shall be any 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;
(df) by either Parent or the Company if Purchaser if: (i) any of the representations and warranties of the Company Stockholders’ Meeting or any Seller 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 satisfied; (including ii) any adjournments and postponements thereof) of the covenants of the Company contained in this Agreement shall have been held and completed and breached such that the Company’s stockholders condition set forth in Section 8.2 would not be satisfied; or (iii) any Company Material Adverse Effect shall have taken 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 that have occurred or shall exist, would reasonably be expected to have or result in a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder ApprovalMaterial Adverse Effect; provided, however, that 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 any Seller as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company or any Seller is curable by the applicable party through the use of commercially reasonable efforts within five (5) Business Days after Purchaser notifies the such party in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Purchaser may not terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h10.1(f) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing Cure Period, provided the applicable party, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that Purchaser may not terminate this Agreement shall not terminate pursuant to this Section 9.1(h10.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period); or
(g) by the Company if: (i) any of Purchaser’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 9.1 would not be satisfied; or (ii) if any of 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, that if an inaccuracy in any of Purchaser’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Purchaser is curable by Purchaser through the use of commercially reasonable efforts within five (5) Business Days after the Company notifies Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Company may not terminate this Agreement under this Section 10.1(g) as a result of such particular inaccuracy or breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) Purchaser Cure Period, provided Purchaser, during the Company ceasing Purchaser Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement shall not terminate pursuant to this Section 9.1(i10.1(g) as a result of with respect to such particular inaccuracy or breach or inaccuracy if such inaccuracy or breach by the Company is cured prior to such termination becoming effectivethe expiration of the Purchaser Cure Period).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Merger Agreement (Celunol Corp)
Termination Events. This Agreement may be terminated at any time prior to Closing upon prior written notice by the Effective Time (whether before or after adoption of party electing to terminate this Agreement by to the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):other party:
(a) by mutual written consent duly authorized by the boards agreement of directors of Parent Columbia and the CompanyPurchaser (expressed in writing);
(b) by either Parent Columbia or Purchaser if any permanent injunction, Court Order or other order, decree or ruling of any court or other Governmental Authority of competent jurisdiction permanently restraining, enjoining or otherwise preventing the Company consummation of the transactions contemplated hereby shall have been issued and become final and non-appealable;
(c) by either Columbia or Purchaser if the Merger Closing shall not have been consummated occurred by August 15June 30, 20071998; provided, however, that the right to terminate this Agreement under this Section 9.1(b10.1(c) shall not be available to any party whose action breach of its representations and warranties in this Agreement or whose failure to act has perform any of its covenants and agreements under this Agreement shall have been a principal contributing cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Mergerdate;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, Columbia upon a breach in any material respect of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company Purchaser set forth in this Agreement, or if any representation or warranty of the Company Purchaser shall have been breached or shall have become untrue, in any such case that the conditions set forth in Sections 8.1 and 8.2 would be incapable of being satisfied by June 30, 1998 (or any later date as such date may be otherwise extended by mutual agreement of the parties); or
(e) by Purchaser upon a breach in any material respect of any covenant or agreement on the part of any Seller set forth in this Agreement Agreement, or if any representation or warranty of any Seller shall have been breached or shall have become inaccurate, untrue in either any such case such that the conditions set forth in Section Sections 7.1 or Section and 7.2 would not be incapable of being satisfied by June 30, 1998 (or any later date as such date may be otherwise extended by mutual agreement of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectiveparties).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time Following any Termination Event (whether before as defined below) or after adoption any other material breach of this Agreement by the Company’s stockholders Cinram, irrespective of whether any notice has been provided to WMI and whether before even where WMI did not discover that such Termination Event or breach occurred until after approval a filing of bankruptcy or a similar proceeding by a particular member of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if Cinram Group: (i) the Company Stockholders’ Meeting Permitted Exclusion Percentages set forth in Exhibit A (including M&P Terms) and Exhibit B (PP&S Terms) hereto shall automatically (and without the requirement of any adjournments and postponements thereofnotice or action of any kind) be amended to **, which amended Permitted Exclusion Percentages shall have been held and completed apply for the then-current calendar year and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, remainder of the Term; and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted WMI may by written notice to Cinram at any adjournment time (as long as such notice is provided to Cinram no later than six (6) months after Cinram notifies WMI in writing of such Termination Event or postponement thereofbreach) by terminate the Required Company Stockholder Approval; providedTerm in whole or in part. Cinram shall provide WMI with written notice immediately upon, howeverand in any event no later than two (2) business days after, that it knows or becomes aware of (or should have known or become aware of) the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the occurrence of any Termination Event, and failure to obtain the Required Company Stockholder Approval provide such notice to WMI shall have been caused by the action or failure itself be deemed to act of the Company and such action or failure be a Termination Event. Each Termination Event shall be deemed to act constitutes be a material breach by of this Agreement that is incapable of cure, and any material breach of this Agreement that is not a Termination Event shall (except as otherwise provided in this Agreement) be subject to a cure period of forty-five (45) days following written notice to Cinram of such breach. Each of the Company following shall be deemed to be a “Termination Event” for purposes of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).:
Appears in 1 contract
Samples: International Manufacturing and Pp&s Agreement (Warner Music Group Corp.)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by of the boards of directors of Parent Purchaser and the Company;Seller.
(b) by either Parent the Purchaser or the Company Seller if the Merger Asset Sale shall not have been consummated by August 15November 30, 20072002 (the “Termination Date”); provided, however, that the right a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(b8.1(b) shall not be available to any party whose action or if the failure to act has been consummate the Asset Sale by the Termination Date is attributable to a principal cause failure on the part of such party to perform any covenant or obligation in this Agreement required to be performed by such party at or prior to the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementClosing Date;
(c) by either Parent the Purchaser or the Company 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 the MergerTransactions;
(d) by either Parent the Purchaser or the Company Seller if (i) the Company Seller Required Stockholder Vote is necessary under applicable law to approve the Asset Sale and any of the other Transactions, (ii) the Seller Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders Stockholders shall have taken a final vote on a proposal to adopt this Agreementapprove the foregoing matters (or if the Seller otherwise attempts to obtain the Seller Required Stockholder Vote by written consent and is unable to obtain such Seller Required Stockholder Vote), and (iiiii) this Agreement shall not have been adopted at the Company if a Seller Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been is held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger foregoing matters shall not have been approved at the Parent Seller Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Seller Required Parent Stockholder ApprovalVote; provided, however, that the right a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(e8.1(d) shall not be available to Parent where if the failure to obtain the Seller Required Parent Stockholder Approval Vote is attributable to a failure on the part of such party to perform any covenant or obligation in this Agreement required to be performed by such party at or prior to the Closing Date;
(e) by either the Purchaser or the Seller if (i) the Purchaser Required Stockholder Vote is necessary under applicable law to approve the Certificate Amendment, (ii) the Purchaser Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been caused held and completed and the Purchaser’s stockholders shall have taken a final vote on a proposal to approve the foregoing matter (or if the Purchaser otherwise attempts to obtain the Purchaser Required Stockholder Vote by written consent and is unable to obtain such Purchaser Required Stockholder Vote), and (iii) if a Purchaser Stockholders’ Meeting is held and the foregoing matter shall not have been approved at the Purchaser Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the action or Purchaser Required Stockholder Vote; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1(e) if the failure to act obtain the Purchaser Required Stockholder Vote is attributable to a failure on the part of Parent and such action party to perform any covenant or failure obligation in this Agreement required to act constitutes a material breach be performed by Parent of this Agreementsuch party at or prior to the Closing Date;
(f) by the Company (at Purchaser if the Seller has Breached any time prior to the approval of the issuance provisions of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredSection 4.5;
(g) by Parent the Purchaser if (at i) any time prior of the Seller’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 approval date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 6.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the Merger date of this Agreement or as of any subsequent date, any update of or modification to the Seller Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), or (ii) any of the Seller’s covenants or obligations 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 Seller’s representations and warranties as of a date subsequent to the date of this Agreement or a Breach of a covenant or obligation by the Required Company Stockholder ApprovalSeller (A) if a Company Triggering Event shall is capable of being cured by the Seller and the Seller has cured such inaccuracy or Breach within 40 days of receipt of notice thereof from the Purchaser, or (B) is incapable of being cured and ten days have occurred;elapsed since the receipt of notice thereof from the Purchaser, then the Purchaser may not terminate this Agreement under this Section 8.1(g) on account of such inaccuracy or Breach; or
(h) by the Company, upon a breach Seller if (i) any of any representation, warranty, covenant or agreement on the part representations and warranties of Parent or Merger Sub set forth the Purchaser 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 (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied, or (ii) if any representation of the covenants or warranty obligations of Parent or Merger Sub set forth the Purchaser contained in this Agreement shall have become inaccurate, in either case been Breached such that the conditions condition set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as satisfied; provided, however, that if an inaccuracy in any of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties of the Purchaser as of a date subsequent to the date of this Agreement or breach a Breach of a covenant or obligation by the Company Purchaser (A) is curable capable of being cured by the Company Purchaser and the Purchaser has cured such inaccuracy or Breach within 40 days of receipt of notice thereof from the Seller, or (B) is incapable of being cured and ten days have elapsed since the receipt of notice thereof from the Seller, then the Seller may not terminate this Agreement shall not terminate pursuant to under this Section 9.1(i8.1(h) as a result on account of such particular breach inaccuracy or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Breach.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) Subject to the provisions of Section 11 above, in the event of the Bankruptcy or dissolution of either Member or its Parent, the other Member may, in its sole and absolute discretion, require such Member to resign and cease to be a Member, at its option and without prejudice to any of its other legal or equitable rights or remedies, by mutual written consent duly authorized by the boards of directors of Parent and the Companygiving notice to such Member;
(b) by If either Member or its Parent materially breaches any of the terms, conditions or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate agreements contained in this Agreement under this Section 9.1(b) shall not or in any Research Contract to which it is a party to be available kept, observed or performed by it, the other Member may require such Member to resign and cease to be a Member, at its option and without prejudice to any party whose action of its other legal or failure to act has been a principal cause of equitable rights or remedies, by giving the failure of Member who committed the Merger to occur on material breach ninety (90) days' notice in writing, unless the notified Member within such 90-day period shall have cured the breach. Neither Member or before such date and such action or failure to act constitutes a its Parent will be considered in breach of this Agreement;Agreement or such a Research Contract for purposes of the termination remedy stated herein during any period in which there is a good faith dispute between the Members as to the existence of such breach. If the Members are, despite negotiations at the highest levels of their respective managements over a period of at least ninety days, unable to resolve any good faith dispute between them as to the existence of such breach, such dispute may at the election of either Member be resolved in accordance with Article 9; and
(c) by either Parent or If prior to July 1, 2001, the Company shall not [ * ], then RP Ag Co. may, in its sole and absolute discretion, at or at any time on or after July 1, 2001 (but prior to the time, if a court of competent jurisdiction or other Governmental Body any, at which the Company 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 the Merger;
(d) by either Parent or the Company if elect to (i) the Company Stockholders’ Meeting (including any adjournments resign and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken cease to be a final vote on a proposal to adopt this Agreement, Member and (ii) this Agreement shall terminate the Research Contracts to which it or its Parent (as the case may be) is a party (an "RP Ag Co. Termination"). In that event, RP Ag Co. will not be required to make any further Additional Capital Contribution of cash that has not previously become due as described in Section 3.6(a) (where any contribution that would have been adopted at become due on the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) date of resignation shall not be available considered to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action become previously due), with no other right for indemnification or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by compensation whatsoever for the Company, upon a breach of any representationACTTAG, warranty, covenant Inc. or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)its Affiliates.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by the boards of directors of Parent Purchaser and the CompanyShareholders’ Representative;
(b) by either Parent Purchaser or the Company Shareholders’ Representative if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such date and such action or failure to act constitutes a breach of this Agreement5:00 p.m. on June 30, 2011;
(c) by either Parent Purchaser or the Company if Shareholders’ Representative if: (i) 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 the Mergertransactions contemplated by this Agreement; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or applicable to the transactions contemplated by this Agreement by any Governmental Body that would make consummation of such transactions illegal;
(d) by either Parent or Purchaser prior to the Company if date of the Closing, if: (i) any of the representations and warranties of the Company Stockholders’ Meeting (including any adjournments and postponements thereof) or the Selling Shareholders contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have been held and completed and become inaccurate as of a date subsequent to the Company’s stockholders shall have taken a final vote on a proposal to adopt date of this Agreement, and in any case shall have a Material Adverse Effect on the Company’s business, such that the condition set forth in Section 6.1 would not be satisfied; or (ii) any of the covenants of the Company or the Selling Shareholders contained in this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, breached such that the right to terminate this Agreement under this condition set forth in Section 9.1(d) shall 6.2 would not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;satisfied; or
(e) by either Parent or the Company if Selling Shareholder if: (i) any of the Parent Stockholders’ Meeting (including any adjournments representations and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance warranties of shares of Parent Common Stock Purchaser contained in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval inaccurate as of the issuance date of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty shall have become inaccurate as of Parent or Merger Sub a date subsequent to the date of this Agreement which inaccuracy shall have a Material Adverse Effect on the Selling Shareholders, such that the condition set forth in Section 7.1 would not be satisfied; or (ii) any of the covenants of Purchaser contained in this Agreement shall have become inaccurate, in either case been breached such that the conditions condition set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)satisfied.
Appears in 1 contract
Samples: Share Purchase Agreement (CaesarStone Sdot-Yam Ltd.)
Termination Events. This 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 Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) Mutually, by mutual the written consent duly authorized by of the boards Company and Consent of directors of Parent and the CompanyInvestors;
(b) by either Parent or the Company or Consent of the Investors by giving written notice to the other party or parties if the Merger Closing shall not have been consummated occurred prior to June 30, 2003, unless extended by August 15, 2007written agreement of the parties; provided that the party seeking termination pursuant to this subsection (b) is not in default or breach hereunder and provided, howeverfurther, that the right to terminate this Agreement under this Section 9.1(bsubsection (b) shall not be available (i) to any party whose action or failure to act fulfill any obligation under this Agreement has been a principal the cause of of, or resulted in, the failure of the Merger Closing to occur on or before such 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 in all material respects and the party seeking termination knew of such action or failure breach prior to act constitutes a breach the date of this AgreementAgreement (such failing or knowing party being the "Delaying Party");
(c) by either Parent or the Company or Consent of the Investors by giving written notice to the other party or parties if a court of competent jurisdiction or other any Governmental Body Entity shall have issued a final an injunction or other ruling prohibiting the consummation of any of the transactions contemplated by this Agreement and nonappealable order, decree such injunction or ruling, other ruling shall not be subject to appeal or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerbecome final and unappealable;
(d) by either Parent or the Company if (i) or Consent of the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Investors in the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall event that Stockholder Approval is not have been adopted obtained at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval' Meeting; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach if the Company's board of any representationdirectors shall have recommended to the stockholders of the Company an Alternative Proposal; provided that, warranty, covenant or agreement on in order for the part termination of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(hclause (e) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from to be deemed effective, the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccuratecomplied with all provisions of Sections 7.4, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate7.14, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)7.21.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Termination Events. This Agreement may be terminated prior to the Effective Time Closing:
(whether before or after adoption i) by Buyer if any of the Company's representations and warranties contained in this Agreement shall have been materially inaccurate as of the date of this Agreement by Agreement, or if any of the Company’s stockholders 's representations and whether before or after approval warranties contained in this Agreement shall have been materially inaccurate as of the issuance date of Parent Common Stock in the Merger by Parent’s stockholdersthis Agreement, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards or if any of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger 's covenants contained in this Agreement shall not have been consummated by August 15breached in any material respect (with materiality being measured individually and on an aggregate basis taking into account all breaches of all covenants, 2007representations and warranties); provided, however, that the right to Buyer may not terminate this Agreement under this Section 9.1(b9.3(a)(i) shall not be available to any party whose action on account of an inaccuracy in the Company's representations and warranties that is waived by Buyer or failure to act has been a principal cause that is curable by the Company or on account of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of a covenant by the Company that is waived by Buyer or that is curable by the Company unless the Company fails to cure such inaccuracy or breach within fifteen (15) days after receiving written notice from Buyer of such inaccuracy or breach (provided that Buyer is not then in material breach of the terms of this Agreement);
(cii) by either Parent the Company or the Company Onex Stockholder Representative if a court any of competent jurisdiction or other Governmental Body shall have issued a final Buyer's representations and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) warranties contained in this Agreement shall have been held and completed and materially inaccurate as of the Company’s stockholders shall have taken a final vote on a proposal to adopt date of this Agreement, and (ii) or if any of Buyer's covenants contained in this Agreement shall not have been adopted at the Company Stockholders’ Meeting breached in any material respect (with materiality being measured individually and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalon an aggregate basis taking into account all breaches of all covenants, representations and warranties); provided, however, that neither the right to Company nor the Onex Stockholder Representative may terminate this Agreement under this Section 9.1(d9.3(a)(ii) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused on account of an inaccuracy in Buyer's representations and warranties that is waived by the action or failure to act of the Company and such action the Onex Stockholder Representative or failure to act constitutes that is curable by Buyer, or on account of a material breach of a covenant by Buyer that is waived by the Company and the Onex Stockholder Representative or that is curable by Buyer unless Buyer fails to cure such inaccuracy or breach within fifteen (15) days after receiving written notice from the Company of such inaccuracy or breach (provided that the Company is not then in material breach of the terms of this Agreement);
(eiii) by either Parent or the Company Buyer if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have Closing has not taken a final vote place on or before 5:00 P.M. Eastern Time on the issuance date that is ninety (90) days from the date of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes (other than as a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach result of any representation, warranty, covenant or agreement failure on the part of Parent Buyer to comply with or Merger Sub perform any covenant or obligation of Buyer set forth in this Agreement, );
(iv) by the Company or the Onex Stockholder Representative if any representation the Closing has not taken place on or warranty before 5:00 P.M. Eastern Time on the date that is ninety (90) days from the date of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) (other than as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement failure on the part of the Company set forth in this Agreement, to comply with or if perform any representation covenant or warranty obligation of the Company set forth in this Agreement or in any other agreement or instrument delivered to Buyer);
(v) By the Company or the Onex Stockholder Representative or Buyer if (a) there shall have become inaccuratebe a final, non-appealable order of a federal or state court in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as effect preventing consummation of the time of such breach transactions contemplated hereby, or as (b) there shall be any final action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the transactions contemplated hereby, by any Governmental Entity which would make consummation of the time such representation or warranty shall have become inaccuratetransactions contemplated hereby illegal; or
(vi) by the mutual consent of Buyer, provided that if such inaccuracy in the Onex Stockholder Representative, the Non-Onex Stockholder Representative Committee and the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by Parent if the boards Closing has not taken place on or before 5:00 p.m. (Pacific time) on October 18, 2013 (the “Expiration Date”) (other than as a result of directors any failure on the part of Parent and to comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement or in any other agreement or instrument delivered to the CompanyCompany in connection with the transactions contemplated by this Agreement);
(b) by either Parent or the Company if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such date and such action 5:00 p.m. (Pacific time) on the Expiration Date (other than as a result of any failure on the part of the Company or failure any of the stockholders of the Company to act constitutes a breach of comply with or perform any covenant or obligation set forth in this Agreement or in any other agreement or instrument delivered to Parent in connection with the transactions contemplated by this Agreement);
(c) by either Parent or the Company if if: (i) a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable non-appealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger; or (ii) there shall be any 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 either Parent or the Company if if: (i) any of the representations and warranties of the Company Stockholders’ Meeting 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 7.1 would not be satisfied; or (including ii) any adjournments and postponements thereof) of the covenants of the Company contained in this Agreement shall have been held and completed and breached such that the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall condition set forth in Section 7.2 would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right 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 twenty (20) days following the date 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 9.1(d) shall not be available as a result of such inaccuracy or breach prior to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act expiration of the Company and such action or failure to act constitutes a material breach by 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 this Agreementthe Company Cure Period);
(e) by either Parent or 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 satisfied; or (ii) if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) of Parent’s covenants contained in this Agreement shall have been held and completed and Parent’s stockholders shall have taken a final vote on breached such that the issuance of shares of Parent Common Stock condition set forth in the Merger and the issuance of Parent Common Stock in the Merger shall Section 8.2 would not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the right to date of this Agreement or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts during the period within twenty (20) days following the date 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) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Cure Period; provided Parent, during the Parent or Merger Sub (as applicable) ceasing Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement shall not terminate pursuant to this Section 9.1(h9.1(e) as a result of with respect to such particular inaccuracy or breach or inaccuracy if such inaccuracy or breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectiveCure Period).
Appears in 1 contract
Termination Events. This The Agreement may, by notice given prior to or at the Closing, be terminated as follows:
(a) Upon the mutual written consent of Group and Group Subsidiary on the one hand and the ProMed Parties on the other hand, this Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders on such terms and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;conditions as agreed; or
(b) by either Parent By written notice of Group and Group Subsidiary on the one hand to the ProMed Parties on the other hand if ProMed Pomona or any of the Company if Principal ProMed Shareholders breaches in any material respect any of its representations or warranties or defaults in any material respect in the Merger shall not have been consummated by August 15, 2007; provided, however, that observance or in the right to terminate this Agreement under this Section 9.1(b) due and timely performance of any of its covenants or agreements herein contained and such breach or default shall not be available cured prior to any party whose action or failure to act has been a principal cause the earlier of the failure Closing Date or 30 days of the Merger to occur on date of notice of breach or before such date and such action default served by Group or failure to act constitutes a breach of this Agreement;Group Subsidiary; or
(c) By written notice of the ProMed Parties on the one hand to Group and Group Subsidiary on the other hand if Group or Group Subsidiary breaches in any material respect any of its representations or warranties or defaults in any material respect in the observance or in the due and timely performance of any of its covenants or agreements herein contained and such breach or default shall not be cured prior to the earlier of the Closing Date or 30 days of the date of notice of breach or default served by either Parent the ProMed Parties; or
(d) By written notice of Group and Group Subsidiary to the ProMed Parties or by the Company ProMed Parties to Group and Group Subsidiary if a any court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable any order, decree or ruling, ruling or shall have taken any other action, having the effect of permanently action restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalcontemplated transactions; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) By written notice of Group and Group Subsidiary to the ProMed Parties, or by either Parent the ProMed Parties to Group and Group Subsidiary, if any court, legislative body or governmental or regulatory authority has taken, or is reasonably expected to take, any action that would make the consummation of the transactions contemplated hereby inadvisable or undesirable as determined by Group or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock ProMed Parties in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalits sole discretion; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(f) by the Company (at any time prior By written notice of Group and Group Subsidiary to the approval of the issuance of Parent Common Stock ProMed Parties if it shall become apparent in the Merger by judgment of Group and Group Subsidiary reasonably exercised that any condition to Group’s or Group Subsidiary’s obligation to close as set forth in Article 6 hereof will not be satisfied before the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;Closing Date; or
(g) by Parent (at By written notice of the ProMed Parties to Group and Group Subsidiary if it shall become apparent in the judgment of the ProMed Parties reasonably exercised that any time prior condition to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub ProMed Parties’ obligation to close as set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would Article 6 hereof will not be satisfied as of before the time of Closing Date Notwithstanding the foregoing, no party hereto may effect a termination hereof at such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy party is in Parent’s or Merger Sub’s representations and warranties material default or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Prospect Medical Holdings Inc)
Termination Events. This Agreement may be terminated prior Prior to the Effective Time (whether before or after adoption of Closing, this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Agreement:
(a) by mutual written consent duly authorized by shall automatically terminate upon the boards termination of directors of Parent and the CompanyPurchase Agreement pursuant to the terms therein;
(b) may be terminated by either Parent the Purchaser if any of Hardy's representations and warranties contained in this Agreement shall be or the Company shall have become materially inaccurate, or if the Merger any of Hardy's covenants contained in this Agreement shall not have been consummated by August 15, 2007breached in any material respect; provided, however, that if any inaccuracy in Hardy's representations and warranties or a breach of a covenant by Hardy, is curable by Hardy and Hardy is continuing to exercise all reasonable efforts to cure such inaccuracy or breach during the right 30-day period commencing upon delivery by the Purchaser of a written notice to Hardy, describing such inaccuracy or breach, then the Purchaser may not terminate this Agreement under this Section 9.1(b8.1(b) shall not be available to any party whose action on account of such inaccuracy or failure to act has been a principal cause breach until the end of the failure of the Merger to occur on such cure period (if such inaccuracy or before such date and such action or failure to act constitutes a breach of this Agreementthen remains uncured);
(c) may be terminated by Hardy if any of the Purchaser's representations and warranties contained in this Agreement shall be or shall have become materially inaccurate, or if any of the Purchaser's covenants contained in this Agreement shall have been breached in any material respect; provided, however, that if any inaccuracy in the Purchaser's representations and warranties or a breach of a covenant by the Purchaser is curable by the Purchaser and the Purchaser is continuing to exercise all reasonable efforts to cure such inaccuracy or breach during the 30-day period commencing upon delivery by Hardy of a written notice to the Purchaser describing such inaccuracy or breach, then Hardy may not terminate this Agreement under this Section 8.1(b) on account of such inaccuracy or breach until the end of such cure period (if such inaccuracy or breach then remains uncured);
(d) may be terminated by Purchaser if the Closing has not taken place on or before January 31, 2000 (other than as a result of any failure on the part of the Purchaser to comply with or perform any covenant or obligation of Purchaser set forth in this Agreement or in any other agreement or instrument delivered to Hardy or the Sellers);
(e) may be terminated by Hardy if the Closing has not taken place on or before January 31, 2000 (other than as a result of the failure on the part of the Sellers to comply with or perform any covenant or obligation of the Sellers set forth in this Agreement or in any other agreement or instrument delivered to Purchaser);
(f) may be terminated by either Parent Purchaser or the Company Hardy 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder ApprovalTransaction; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;or
(g) by Parent (at any time prior to the approval of the Merger may be terminated by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach mutual written consent of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations Purchaser and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Hardy.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by the boards of directors of Parent Purchaser and the CompanySellers’ Representative;
(b) by either Parent or the Company Purchaser if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such 5:00 p.m. (Pacific time) on the date and such action or that is 150 days following the date of this Agreement (the “Outside Date”), unless the failure to act constitutes a so close is the result of the willful and intentional breach by Purchaser of this Agreement or any other agreement or instrument delivered to the Sellers’ Representative in connection with the transactions contemplated by this Agreement;
(c) by either Parent the Sellers’ Representative if the Closing has not taken place on or before 5:00 p.m. (Pacific time) on the Outside Date, unless the failure to so close is the result of the willful and intentional breach by a Seller, the Company, Blocker or the Company if Sellers’ Representative of this Agreement or any other agreement or instrument delivered to Purchaser in connection with the transactions contemplated by this Agreement;
(d) by either Purchaser or the Sellers’ Representative if: (i) a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingOrder, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergertransactions contemplated by this Agreement; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the transactions contemplated by this Agreement by any Governmental Body that would make consummation of the transactions contemplated by this Agreement illegal;
(de) by either Parent Purchaser if: (i) any of the representations and warranties of the Sellers, Blocker or the Company 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 satisfied; (ii) any of the covenants of the Sellers, the Company or Blocker 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 (solely to the extent such Material Adverse Effect has not been cured prior to the Outside Date); provided, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the representations and warranties of the Sellers, the Company or Blocker as of a date subsequent to the date of this Agreement or a breach of a covenant by the Sellers, the Company or Blocker is curable by the Sellers, the Company or Blocker, as the case may be, through the use of reasonable efforts within five Business Days after Purchaser notifies the Sellers’ Representative in writing of the existence of such inaccuracy or breach (the “Sellers Cure Period”), then Purchaser 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 Sellers Cure Period, provided, that the Sellers, the Company and Blocker, during the Sellers Cure Period, continue to exercise reasonable efforts to cure such inaccuracy or breach (it being understood that Purchaser may not terminate this Agreement pursuant to this Section 10.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Sellers Cure Period); or
(f) by the Sellers’ Representative if: (i) any of Purchaser’s representations and warranties contained in this Agreement shall be inaccurate as of the Company Stockholders’ Meeting 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 9.1 would not be satisfied; or (including ii) if any adjournments and postponements thereof) of Purchaser’s covenants contained in this Agreement shall have been held and completed and breached such that the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall condition set forth in Section 9.2 would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of Purchaser’s representations and warranties as of a date subsequent to the right to date of this Agreement or a breach of a covenant by Purchaser is curable by Purchaser through the use of reasonable efforts within five Business Days after the Sellers’ Representative notifies Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Sellers’ Representative may not terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h10.1(f) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing Purchaser Cure Period, provided, that Purchaser, during the Purchaser Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Sellers’ Representative may not terminate this Agreement shall not terminate pursuant to this Section 9.1(h10.1(f) as a result of with respect to such particular inaccuracy or breach or inaccuracy if such inaccuracy or breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectivePurchaser Cure Period).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval Each of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events shall be a "Termination Event" hereunder:
(ai) Servicer (if API) shall fail to perform or observe any term, covenant or agreement hereunder in its capacity as Servicer (other than as referred to in clause (ii) next following) and such failure shall remain unremedied for three Business Days or (ii) either Servicer (if API) or Seller shall fail to make any payment or deposit to be made by mutual written consent duly authorized by the boards of directors of Parent and the Company;it hereunder when due; or
(b) Any representation or warranty made or deemed to be made by either Parent Seller, any Originator or Servicer (or any of their respective officers) under or in connection with this Agreement, any other Agreement Document or any Periodic Report or other information or report delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(c) Seller, API or any Originator shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or any other Agreement Document on its part to be performed or observed and any such failure shall remain unremedied for ten Business Days after written notice thereof shall have been given by the Agent to Seller or API; or
(d) A default shall have occurred and be continuing under or any instrument, contract, indenture or agreement evidencing, securing or providing for the issuance of indebtedness for borrowed money in excess of $2,000,000 of, or guaranteed by, API or any Affiliate of any thereof, which default if unremedied, uncured, or unwaived (with or without the passage of time or the Company if giving of notice) would permit acceleration of the Merger maturity of such indebtedness and such default shall have continued unremedied, uncured or unwaived for a period long enough to permit such acceleration and any notice of default required to permit acceleration shall have been given; or
(e) The average of the Delinquency Ratios for any three successive Month End Dates exceeds 15%; or
(f) An Event of Bankruptcy shall have occurred and remained continuing with respect to Seller, API, any Originator or any Affiliate of any thereof; or
(i) Any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings not disclosed in writing by Seller or API to the Agent and Purchasers prior to the date of execution and delivery of this Agreement is pending against Seller, API or any Originator or (ii) any material development not so disclosed has occurred in any litigation (including, without limitation, derivative actions), arbitration proceedings or governmental proceedings so disclosed, which, in the case of clause (i) or (ii), in the reasonable opinion of the Agent is likely to materially adversely affect the financial position or business of Seller, API or any Originator or impair the ability of Seller, API or any Originator to perform its obligations under this Agreement or any other Agreement Document; or
(h) The Aggregate Participation Amounts shall exceed the Participation Amounts Limit, or that portion of the Aggregate Purchasers' Investments that is funded in Approved Currencies other than U.S. Dollars exceeds the Foreign Currency Limit, or the aggregate Unpaid Balance of Receivables denominated in any Approved Currency is less than the sum of the Purchasers' Investments of each Undivided Interest funded in such Approved Currency; or
(i) The average of the Default Ratios for any three successive Month End Dates exceeds 7.25%; or
(j) There shall have occurred any event which materially
(i) (y) shall not be true at any time; or
(k) The Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Internal Revenue Code with regard to any of the assets of Seller or any Originator and such lien shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date released and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement lien shall not have been adopted at released within 8 Business Days, or the Company Stockholders’ Meeting (Pension Benefit Guaranty Corporation shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of the Employee Retirement Income Security Act of 1974 with regard to any of the assets of Seller or any Originator and such lien shall not have been adopted at any adjournment released within 8 Business Days; or
(l) One Person, or postponement thereof) by the Required Company Stockholder Approval; provided, however, a group of Persons acting in concert that the right to terminate this Agreement under this Section 9.1(d) shall not be available are unacceptable to the Company where Agent or the failure to obtain the Required Company Stockholder Approval shall have been caused by the action Majority Purchasers obtain, in one or failure to act more transactions, control of more than 50% of the Company issued and such action outstanding shares of capital stock of API having the power to elect a majority of directors of API; or failure Seller or any Originator other than API ceases to act constitutes be a material breach by wholly-owned Subsidiary of API; or
(m) The average of the Company of this AgreementDilution Ratios for any three successive Month End Dates exceeds 8%;
(en) by either Parent or The average of the Company if the Parent Stockholders’ Meeting (including Net Charge-Off Ratios for any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalthree successive Month End Dates exceeds 2%; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(fo) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;The Seller's Tangible Net Worth is less than $18,300,000; or
(gp) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering A Purchase and Sale Termination Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)occurs.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by of the boards of directors of Parent and the CompanyParties;
(b) by either the Purchaser if the Closing has not taken place on or before 5:00 p.m. (California time) on December 31, 2015 (the “End Date”) (other than as a result of any failure on the part of Parent or the Company if Purchaser to comply with or perform any covenant or obligation of Parent or the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of Purchaser set forth in this Agreement);
(c) by either Parent the Seller if the Closing has not taken place on or before 5:00 p.m. (California time) on the End Date (other than as a result of any failure on the part of the Seller to comply with or perform any covenant or obligation set forth in this Agreement or of any Stock Recipient Member to comply with or perform any covenant or obligation set forth in the Support Agreement entered into by such Stock Recipient Member);
(d) by the Purchaser or the Company if Seller if: (i) 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 the MergerAsset Purchase Transaction; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Asset Purchase Transaction by any Governmental Body that would make consummation of the Asset Purchase Transaction illegal;
(de) by either Parent or the Company if Purchaser if: (i) there shall have occurred a Material Adverse Effect, or any event, circumstance or other Effect shall have occurred or shall exist that, considered together with all other events, circumstance and other Effects, would reasonably be expected to have a Material Adverse Effect; (ii) any of the Company Stockholders’ Meeting representations and warranties of the Seller contained in this Agreement shall be inaccurate as of the Original Agreement Date, or shall have become inaccurate as of a date subsequent to the Original Agreement Date, such that, if such inaccuracy occurred or was continuing as of the Closing Date, the condition set forth in Section 7.1 would not be satisfied; or (including iii) any adjournments and postponements thereof) of the covenants or obligations of the Seller contained in this Agreement shall have been held and completed and breached such that, if such breach occurred or was continuing as of the Company’s stockholders shall have taken a final vote on a proposal to adopt this AgreementClosing Date, and (ii) this Agreement shall the condition set forth in Section 7.2 would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right to terminate this Agreement under this Section 9.1(d) shall not be available to representations and warranties of the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused Seller or a breach of a covenant or obligation by the action or failure to act Seller is curable by the Seller through the use of reasonable efforts within 20 days after Parent and/or the Purchaser notifies the Seller in writing of the Company and existence of such action inaccuracy or failure to act constitutes a material breach by (the Company of this Agreement;
(e) by either Parent or “Seller Cure Period”), then the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall Purchaser may not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall 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 reasonable efforts to cure such inaccuracy or breach (it being understood that the Purchaser may not be available terminate this Agreement pursuant to Parent where this Section 9.1(e) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the failure to obtain expiration of the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;Seller Cure Period); or
(f) by the Company Seller if: (at i) any time prior of the Purchaser’s representations and warranties contained in this Agreement shall be inaccurate as of the Original Agreement Date, or shall have become inaccurate as of a date subsequent to the approval Original Agreement Date, such that, if such inaccuracy occurred or was continuing as of the issuance of Parent Common Stock in Closing Date, the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub condition set forth in this Agreement, Section 8.1 would not be satisfied; or if (ii) any representation of Parent’s or warranty of Parent or Merger Sub set forth the Purchaser’s covenants contained in this Agreement shall have become inaccuratebeen breached such that, in either case if such that breach occurred or was continuing as of the conditions Closing Date, the condition set forth in Section 8.1 or Section 8.2 would not be satisfied as satisfied; provided, however, that if an inaccuracy in any of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger SubPurchaser’s representations and warranties or a breach of a covenant by Parent or Merger Sub the Purchaser is curable by Parent and/or the Purchaser through the use of reasonable efforts within 20 days after the Seller notifies Parent and/or the Purchaser in writing of the existence of such inaccuracy or Merger Subbreach (the “Purchaser Cure Period”), then the Seller may not terminate this Agreement shall not terminate pursuant to under this Section 9.1(h9.1(f) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Purchaser Cure Period, provided Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing and/or 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 shall not terminate pursuant to this Section 9.1(h9.1(f) as a result of with respect to such particular inaccuracy or breach or inaccuracy if such inaccuracy or breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectivePurchaser Cure Period).
Appears in 1 contract
Samples: Asset Purchase Agreement (Raptor Pharmaceutical Corp)
Termination Events. This Agreement may be terminated at any time prior to the Effective Time (Time, whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval receipt of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Requisite Purchaser Consent:
(a) by mutual written consent duly authorized by of the boards of directors of Parent Purchaser and the Company;
(b) by either Parent the Company or the Company Purchaser if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b(i) shall not be available to any party whose action or failure to act Governmental Authority of competent jurisdiction has been a principal cause of the failure denied approval of the Merger to occur on or before such date and such action denial has become final and nonappealable or failure to act constitutes a breach of this Agreement;
(cii) by either Parent any court or the Company if a court Governmental Authority of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, injunction or decree or ruling, other legal restraint or shall have taken any other action, having the effect of prohibition permanently restraining, enjoining or otherwise prohibiting preventing the consummation of the Merger, unless the issuance of such order, injunction, decree or other legal restraint, as applicable, shall be principally due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;
(c) by either the Company or the Purchaser if the Merger shall not have been consummated on or before September 30, 2023 (the “Termination Date”), unless the failure of the Closing to occur by such date shall be principally due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;
(d) by either Parent the Company or the Company Purchaser (provided, that the terminating party is not then in material breach of any obligation, covenant or other agreement contained herein) if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) there shall have been held and completed and a breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of the Purchaser or Merger Sub, in the case of a termination by the Company’s stockholders shall have taken , or the Company, in the case of a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) termination by the Required Company Stockholder Approval; providedPurchaser, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action which breach or failure to act be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Company and such action or Closing Date, the failure to act constitutes of a material breach condition set forth in Section 7.2, in the case of a termination by the Company Company, or Section 7.3, in the case of this Agreement;a termination by the Purchaser, and which is not cured within thirty (30) days (or such fewer days as remain prior to the Termination Date) following written notice to the Purchaser, in the case of a termination by the Company, or the Company, in the case of a termination by the Purchaser, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(e) by either Parent the Company or the Company Purchaser if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger Requisite Purchaser Consent shall not have been approved at delivered to the Parent Stockholders’ Meeting (Purchaser and shall not have been approved at any adjournment or postponement thereof) the Company by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Requisite Purchaser Consent Deadline in accordance with Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)6.9.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Creek Road Miners, Inc.)
Termination Events. This 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 Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent Parent, Seller, and the CompanyBuyer;
(b) by either Parent and Seller, on the one hand, or Buyer, on the Company other hand, by giving written notice to the other Parties if the Merger Closing shall not have been consummated occurred by August 15the Termination Date, 2007as extended; provided, however, provided that the right to terminate this Agreement under this Section 9.1(bclause (b) shall not be available to any party Party whose action or failure to act fulfill any obligation under this Agreement has been a principal the cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreementdate;
(c) by either Parent and Seller, on the one hand, or Buyer, on the Company other hand, by giving written notice to the other Parties if a court of competent jurisdiction or other any Governmental Body Authority shall have issued a final and nonappealable an order, decree or ruling, ruling or shall have taken any other action, having the effect of action permanently restraining, enjoining or otherwise prohibiting the Mergerconsummation 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;
(d) by either Parent Buyer (provided that Buyer is not then in material breach of any representation or the Company warranty, or material covenant contained herein), if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) there shall have been held and completed and a material breach of any of the Company’s stockholders shall have taken a final vote on a proposal to adopt representations or warranties, or material covenants of Parent or Seller set forth in this Agreement, which breach would constitute, either individually or in the aggregate, if occurring on the Closing Date, the failure of the conditions set forth in Sections 7.3(a) or 7.3(b) ( a “Seller Terminating Breach”); provided that if, (x) within ten (10) Business Days following receipt by Seller of written notice from Buyer specifying the nature of the Seller Terminating Breach in reasonable detail (the “Seller Breach Notice”), Seller delivers to Buyer a notice outlining the manner in which, and the time within which, such Seller Terminating Breach shall be, or is reasonably likely to be, cured such that a Seller Terminating Breach shall no longer be continuing (a “Seller Cure Plan”), and (iiy) this Agreement within 30 days following receipt by Seller of the Seller Breach Notice, Parent or Seller commences implementation of the actions described in such Seller Cure Plan and continues to exercise its reasonable best efforts to cure such Seller Terminating Breach such that a Seller Terminating Breach shall no longer be continuing, Buyer may not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d10.1(d) until the Termination Date; provided further that Buyer’s right to terminate pursuant to this Section 10.1(d) shall not be available lapse if and when such Seller Terminating Breach is cured such that the Seller Terminating Breach is no longer continuing and Parent and Seller are otherwise no longer in breach, which breach would give rise to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act a right of the Company and such action or failure to act constitutes a material breach by the Company of termination under this Agreement;Section 10.1(d); or
(e) by either Parent and Seller (provided that Parent and Seller are not then in material breach of any representation or the Company warranty, or material covenant contained herein), if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) there shall have been held and completed and Parent’s stockholders shall have taken a final vote material breach of any of the representations or warranties, or material covenants of Buyer set forth in this Agreement, which breach would constitute, either individually or in the aggregate, if occurring on the issuance Closing Date, the failure of shares the conditions set forth in Sections 7.2(a) or 7.2(b) ( a “Buyer Terminating Breach”); provided that if, (x) within ten (10) Business Days following receipt by Buyer of Parent Common Stock written notice from Seller specifying the nature of the Buyer Terminating Breach in reasonable detail (the Merger “Buyer Breach Notice”), Buyer delivers to Seller a notice outlining the manner in which, and the issuance time within which, such Buyer Terminating Breach shall be, or is reasonably likely to be, cured such that a Buyer Terminating Breach shall no longer be continuing (a “Buyer Cure Plan”), and (y) within 30 days following receipt by Buyer of the Buyer Breach Notice, Buyer commences implementation of the actions described in such Buyer Cure Plan and continues to exercise its reasonable best efforts to cure such Buyer Terminating Breach such that a Buyer Terminating Breach shall no longer be continuing, Parent Common Stock in the Merger shall and Seller may not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e10.1(e) shall not be available to Parent where until the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such Termination Date; provided further that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Suband Seller’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not right to terminate pursuant to this Section 9.1(h10.1(e) as a result of shall lapse if and when such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub Buyer Terminating Breach is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth Buyer Terminating Breach is no longer continuing and Buyer is otherwise no longer in Section 7.1 or Section 7.2 breach, which breach would not be satisfied as give rise to a right of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to termination under this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective10.1(e).
Appears in 1 contract
Termination Events. This Without prejudice to other remedies which may be available to the parties by law or this Agreement, this Agreement may be terminated prior to and the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):transactions contemplated herein may be abandoned:
(a) by mutual written consent duly authorized by of the boards of directors of Parent and the Companyparties hereto;
(b) by either Parent Purchaser or SALD by notice to the Company other if the Merger shall Closing has not have been consummated by August 15July 1, 2007; 2000, unless extended by written agreement of the Parties hereto, provided that the Party terminating this Agreement shall not be in material default or breach hereunder and provided, howeverfurther, that the right to terminate this Agreement under this Section 9.1(bclause (b) shall not be available (i) to any party Party whose action or failure to act fulfill any obligation under this Agreement has been a principal the cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date; or (ii) in the event that the Closing has not occurred as a result of a failure of any representation to be true and correct, the terminating party shall not have the right to terminate this Agreement if such party knew of such breach prior to the date and such action or failure to act constitutes a breach of this Agreement;; or
(c) by either Parent Purchaser or the Company SALD, if a court of competent jurisdiction or other any Governmental Body shall have Authority has issued a final and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, ruling enjoining or otherwise permanently prohibiting any of the Merger;
transactions contemplated by this Agreement (dunless such order, decree or ruling has been withdrawn, reversed or otherwise made inapplicable ); provided, that this clause (c) shall not apply in the case where all of the following apply: (x) to any such order, decree or ruling in any country (or by either Parent any Governmental Authority in any country) other than the U.S., France, the U.K. and Spain, (y) where the aggregate effect of all such orders, decrees or rulings on the Company if consummation of the transactions would not reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect following the Closing Date and (iz) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall order, decree or ruling wherever it may have been held and completed and issued, does not purport to restrict in their entirety or substantially in their entirety the Company’s stockholders shall have taken a final vote on a proposal to adopt transactions contemplated in this Agreement, in which case the Closing shall proceed in accordance with Article VII except that any of the transactions that are enjoined will not be closed until such time as it no longer is enjoined and (ii) there shall be an appropriate adjustment in the Purchase Price to reflect that such portion of the Business will not be transferred; and provided, further, that the party seeking to terminate this Agreement shall under this clause (c) is not have been adopted at the Company Stockholders’ Meeting (then in material breach of this Agreement; and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, howeverfurther, that the right to terminate this Agreement under this Section 9.1(dclause (c) shall not be available to the Company where the failure any Party who shall not have used best efforts to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on avoid the issuance of shares of Parent Common Stock in such order, decree or ruling. If the Merger enjoinder or prohibition by its terms would permit the Closing to occur before July 1, 2000, then the Closing shall occur promptly after the enjoinder or prohibition no longer is effective. If the Closing has occurred and any Transferred Subsidiary or Purchased Asset has not been sold, assigned, transferred, conveyed, delivered or acquired due to any enjoinder or prohibition, the issuance of Parent Common Stock in the Merger parties shall not have been approved at the Parent Stockholders’ Meeting (use their reasonable best efforts, and shall not have been approved at any adjournment cooperate with each other, to obtain promptly the removal of such enjoinder or postponement thereof) by the Required Parent Stockholder Approvalprohibition; provided, howeverthat neither Purchaser nor any of its respective Affiliates shall be required to pay any consideration therefor, that other than filing, recordation or similar fees payable to any Governmental Authority. Pending or in the right absence of the removal of such enjoinder or prohibition, the parties shall cooperate with each other in any reasonable and lawful arrangements designed to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior provide to the approval of Purchaser and any respective Designated Purchaser the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time benefits and liabilities of such breach Transferred Subsidiary or as of the time such representation Purchased Asset which are enjoined or warranty shall have become inaccurateprohibited from being sold, provided that if such inaccuracy in Parent’s assigned, transferred, conveyed, delivered or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)acquired.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Polo Ralph Lauren Corp)
Termination Events. This Agreement may be terminated prior and the Company may be dissolved, subject to Section 9.7, upon the Effective Time (whether before or after adoption occurrence of this Agreement by the Company’s stockholders and whether before or after approval any of the issuance of Parent Common Stock in the Merger by Parent’s stockholdersfollowing events (collectively, unless otherwise specified below"Termination Events"):
(a) by mutual written consent duly authorized by the boards Board unanimously votes for the termination of directors of Parent and the CompanyAgreement pursuant to Section 4.4;
(b) by either Parent or Shareholder in the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been event of a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement[***];
(c) by either Parent MSK, upon a material violation or breach by Sequana of a material provision of this Agreement, the Sequana License Agreement or the Company if Sequana Services Agreement and such violation or breach has not been waived by MSK and such breach remains uncorrected for a court period of competent jurisdiction or other Governmental Body shall have issued ninety (90) days after receipt by Sequana of a final written *** CONFIDENTIAL TREATMENT REQUESTED 31 notice specifying the provision that has been breached and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerdetails surrounding such breach;
(d) by either Parent Sequana, upon a material violation or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken breach by MSK of a final vote on a proposal to adopt material provision of this Agreement, and (ii) this the MSK License Agreement shall not have been adopted at or the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this MSK Services Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action violation or failure to act constitutes breach has not been waived by Sequana; and such breach remains uncorrected for a material breach period of ninety (90) days after receipt by MSK of a written notice specifying the Company of this Agreementprovision that has been breached and the details surrounding such breach;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;[***]
(f) by MSK upon the Company (at any time prior to the approval occurrence of the issuance an Insolvency Event of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredSequana;
(g) by Parent (at any time prior to Sequana upon the approval occurrence of the Merger by the Required Company Stockholder Approval) if a Company Triggering an Insolvency Event shall have occurredof MSK;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurateeither Shareholder, in either case such the event that (a) the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of Company has expended (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy Initial Contributions and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate any required investments by the Shareholders pursuant to this Section 9.1(h3.3(a) as a result of such particular breach or inaccuracy hereof and (iii) additional investments from each Shareholder, if such breach by Parent or Merger Sub is cured prior any, required pursuant to such termination becoming effective)Section 3.3(b) hereof and (b) the Scientific Advisory Committee has certified to the Board that no gene discovery has been made; and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on either Shareholder in the part event of the Company set forth in this Agreement, or if any representation or warranty termination of the Company set forth Sequana License Agreement or the MSK License Agreement in this Agreement shall have become inaccurate, in either case such that accordance with the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)terms thereof.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to ------------------- upon the Effective Time (whether before or after adoption occurrence of this Agreement by the Company’s stockholders and whether before or after approval any of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events:
(a) The Parties may terminate this Agreement by written mutual written consent duly authorized by of both Parties in each Party's sole discretion at any time prior to the boards of directors of Parent and the Company;Closing Date.
(b) by either Parent Either Purchaser or Seller may terminate this Agreement upon written notice to the Company other Party if the Merger shall Closing has not have been consummated by August 15occurred on or before July 21, 20072006 or such other date as the Parties may agree upon in writing; provided, however, provided that the right Party seeking to terminate this Agreement under this Section 9.1(b11.1(b) shall has not be available breached or defaulted hereunder and has performed or stands ready, willing, and able to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of perform, its obligations under this Agreement;.
(c) Either Purchaser or Seller may terminate this Agreement upon written notice to the other Party if there shall be any Governmental Law that makes consummation of the transactions contemplated by either Parent this Agreement illegal or the Company otherwise prohibited or if a any court of competent jurisdiction or other Governmental Body Authority shall have issued a final and nonappealable an order, decree or ruling, ruling or shall have taken any other action, having the effect of action permanently restraining, enjoining or otherwise prohibiting the Merger;consummation 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.
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to Purchaser may terminate this Agreement under if Seller has failed to comply with any material term or condition of this Section 9.1(d) shall not be available to the Company where the Agreement and such failure (other than any failure to obtain satisfy any condition set forth in Article VIII on the Required Company Stockholder Approval shall have been caused by the action or failure date such condition is required to act be satisfied) is not cured within ten (10) Business Days of the Company and written notice of such action or failure to act constitutes a material breach, as long as Purchaser is not in breach by the Company of this Agreement;Agreement at such time.
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to Seller may terminate this Agreement under if Purchaser has failed to comply with any material term or condition of this Section 9.1(e) shall not be available to Parent where the Agreement and such failure (other than any failure to obtain satisfy any condition set forth in Article IX on the Required Parent Stockholder Approval shall have been caused by the action or failure date such condition is required to act be satisfied) is not cured within ten (10) Business Days of Parent and written notice of such action or failure to act constitutes a material breach by Parent as long as Seller is not in breach of this Agreement;Agreement at such time.
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock Purchaser or Seller may terminate this Agreement in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration event of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Material Adverse Change.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards Purchaser or Purchaser Sub if (i) there is a material Breach of directors any covenant or obligation of Parent the Seller and such Breach shall not have been cured within fifteen days after the Companydelivery of notice thereof to the Seller, or (ii) the Purchaser or Purchaser Sub reasonably determines that the timely satisfaction of any condition set forth in Section 5 has become impossible or impractical (assuming the party responsible for the satisfaction of such condition were to use its Best Efforts to cause the condition to be satisfied) (other than as a result of any failure on the part of the Purchaser or Purchaser Sub to comply with or perform its covenants and obligations set forth in this Agreement);
(b) by either Parent the Seller if (i) there is a material Breach of any covenant or obligation of the Company if the Merger Purchaser or Purchaser Sub and such Breach shall not have been consummated by August 15cured within fifteen days after the delivery of notice thereof to the Purchaser and Purchaser Sub, 2007; provided, however, or (ii) the Seller reasonably determines that the right timely satisfaction of any condition set forth in Section 6 has become impossible or impractical (assuming the party responsible for the satisfaction of such condition were to terminate this Agreement under this Section 9.1(buse its Best Efforts to cause the condition to be satisfied) shall not be available to (other than as a result of any party whose action or failure to act has been a principal cause on the part of the failure of the Merger Seller to occur on comply with or before such date and such action perform any covenant or failure to act constitutes a breach of obligation set forth in this Agreement);
(c) by either Parent the Purchaser or Purchaser Sub if the Company if Closing has not taken place on or before December 31, 2006 (other than as a court result of competent jurisdiction any failure on the part of the Purchaser or other Governmental Body shall have issued a final Purchaser Sub to comply with or perform its covenants and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerobligations under this Agreement);
(d) by either Parent the Seller if the Closing has not taken place on or before December 31, 2006 (other than as a result of any failure on the Company if (i) part of the Company Stockholders’ Meeting (including Seller to comply with or perform any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt covenant or obligation set forth in this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement);
(e) by either Parent the Purchaser or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved Purchaser Sub at any adjournment time for any or postponement thereof) no reason prior to the acceptance of all Delayed Schedules by the Required Parent Stockholder ApprovalPurchaser and Purchaser Sub as set forth in Section 4.12; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(f) by the Company (at any time prior to the approval mutual written consent of the issuance of Parent Common Stock in Purchaser, Purchaser Sub and the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Esim LTD)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by By either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company Purchaser if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable an order, decree or ruling, ruling or shall have taken any other actionaction (which order, having decree or ruling the effect parties hereto shall use their best efforts to lift) and such was not at the request of the party seeking termination of the Agreement, in each case permanently restraining, enjoining or otherwise prohibiting the Merger;transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; or
(b) by Purchaser if the Closing has not taken place on or before September 27, 2011 (other than as a result of any failure on the part of Parent, Purchaser or Merger Sub to comply with or perform any covenant or obligation of Parent, Purchaser or Merger Sub set forth in this Agreement); or
(c) by the Company if the Closing has not taken place on or before September 27, 2011 (other than as a result of the failure on the part of the Company to comply with or perform any covenant or obligation set forth in this Agreement); or
(d) by either Parent or the Company mutual written consent of Purchaser and the Company; or
(e) by Purchaser, if (i) the Company Stockholders’ Meeting (including shall breach any adjournments representation, warranty, obligation or agreement hereunder such that the conditions referred to in Section 7.1 or Section 7.2 would not be satisfied and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement such breach shall not have been adopted at the Company Stockholders’ Meeting cured within seven (and shall not have been adopted at any adjournment or postponement thereof7) by the Required Company Stockholder Approval; providedBusiness Days following written notice of such breach, however, provided that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement Purchaser under this Section 9.1(e) shall not be available where Parent, Purchaser or Merger Sub is at that time in breach of this Agreement, (ii) the board of directors of the Company shall have withdrawn or modified its recommendation of this Agreement or the Merger in a manner adverse to Parent where or Purchaser or recommended, endorsed, accepted or agreed to an Acquisition Transaction (except with regard to Company Stock Options or pending Company Warrants set forth in Part 2.3 of the failure Disclosure Schedule) or shall have resolved to obtain do any of the Required Parent Stockholder Approval foregoing or the approval of the Shareholders of this Agreement or the Merger shall have been caused by rescinded or invalidated, (iii) the action Company or failure any of its respective officers, directors, employees or other agents, shall have failed to act comply with Section 5.2 or (iv) there shall have been an event such that any of Parent and such action or failure to act constitutes a material breach by Parent the conditions set forth in Section 7.1 would be incapable of this Agreement;being satisfied; or
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a if (i) Parent, Purchaser or Merger Sub shall breach of any representation, warranty, covenant obligation or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case hereunder such that the conditions set forth referred to in Section 8.1 or Section 8.2 would not be satisfied as of the time and such breach shall not have been cured within seven (7) Business Days following written notice of such breach or as of the time such representation or warranty shall have become inaccuratebreach, provided that if such inaccuracy the right to terminate this Agreement by the Company under this Section 9.1(f) shall not be available where the Company is at that time in breach of this Agreement; (ii) the board of directors of Parent’s or Merger Sub’s representations and warranties or breach by Parent , Purchaser or Merger Sub is curable by Parent shall have withdrawn or Merger Sub, then modified its recommendation of this Agreement shall not terminate pursuant to this Section 9.1(hor the Merger; or (iii) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement there shall have become inaccurate, in either case been an event such that any of the conditions set forth in Section 7.1 or Section 7.2 8.1 would not be satisfied as incapable of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)satisfied;.
Appears in 1 contract
Termination Events. This Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated prior to and the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):transactions contemplated herein may be abandoned:
(a) by mutual written consent duly authorized by of the boards of directors of Parent and the CompanyParties;
(b) after December 31, 2024 (the “Outside Date”), by either Parent or any Party by delivery of a written notice to the Company other Party in accordance with Section 11.1 if the Merger Closing shall not have been consummated by August 15, 2007on or prior to 5:00 pm Eastern Time on the Outside Date; provided, however, that the right to terminate this Agreement under this Section 9.1(b10.1(b) shall not be available to any party Party whose action failure or whose Affiliate’s failure to act perform any of its representations, warranties, covenants or other obligations under this Agreement has been a principal the primary cause of of, or otherwise primarily resulted in, the failure of the Merger Closing to occur on or before prior to such date and such action or failure to act constitutes a breach of this Agreementdate;
(c) by either Parent or the Company any Party, if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable final, non-appealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, ruling enjoining or otherwise prohibiting consummation of the MergerPurchase has been issued by any Governmental Authority (unless such order, decree or ruling has been withdrawn, reversed or otherwise made inapplicable) or any Law has been enacted that would make the Purchase illegal;
(d) by either Parent or the Company Seller (by delivery of a written notice to Purchaser in accordance with Section 11.1(b)) if (i) Seller is not in breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the Company Stockholders’ Meeting (including any adjournments and postponements thereofconditions set forth in Sections 7.2(a) shall have been held and completed and or 7.2(b) incapable of being satisfied on the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, Outside Date and (ii) this Agreement shall Purchaser is in breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the conditions set forth in Sections 7.3(a) or 7.3(b) incapable of being satisfied on the Outside Date, and such breach is either (A) not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available capable of being cured prior to the Company where Outside Date or (B) if curable, is not cured within the failure earlier of (x) twenty (20) Business Days after the giving of written notice by Seller to obtain Purchaser and (y) three (3) Business Days prior to the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;Outside Date; or
(e) by either Parent or the Company if the Parent Stockholders’ Meeting Purchaser (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken by delivery of a final vote on the issuance of shares of Parent Common Stock written notice to Seller in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this accordance with Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval11.1(a)) if a Parent Triggering Event shall have occurred;
(gi) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a Purchaser is not in breach of any representationof its representations, warrantywarranties, covenant covenants or agreement on the part of Parent other obligations hereunder that renders or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that would render the conditions set forth in Section 8.1 Sections 7.3(a) or Section 8.2 would not be 7.3(b) incapable of being satisfied as of on the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy Outside Date and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub Seller is cured prior to such termination becoming effective); and
(i) by Parent, upon a in breach of any representationof its representations, warrantywarranties, covenant covenants or agreement on the part of the Company set forth in this Agreement, other obligations hereunder that renders or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that would render the conditions set forth in Section 7.1 Sections 7.2(a) or Section 7.2 would not be 7.2(b) incapable of being satisfied as of on the time of Outside Date, and such breach is either (A) not capable of being cured prior to the Outside Date or as of the time such representation or warranty shall have become inaccurate(B) if curable, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until cured within the earlier of (ix) twenty (20) Business Days after the expiration of a 30 day period commencing upon delivery giving of written notice from Parent by Purchaser to Seller and (y) three (3) Business Days prior to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Outside Date.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval Each of the issuance following events or occurrences described in this Section 8.1 shall constitute a “Termination Event” (each event which with notice or the passage of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified belowtime or both would become a Termination Event being referred to herein as an “Unmatured Termination Event”):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the CompanyTermination Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Parent it under this Agreement or the Company if the Merger any other Transaction Document to which it is a party and such failure shall not remain unremedied for two (2) Business Days;
(c) any written representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement, any other Transaction Documents to which it is a party, or any other written information or report delivered pursuant hereto or thereto shall prove to have been consummated by August 15, 2007incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, that the right to terminate this Agreement under this Section 9.1(b) such breach shall not be available constitute an Termination Event pursuant to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
clause (c) by either Parent if such breach, solely to the extent capable of cure, is cured within ten (10) Business Days (or two (2) Business Days with respect to a breach in the information set forth in an Interim Report) following the date that a Financial Officer or other Responsible Officer has knowledge or has received notice of such breach provided, further that no breach of a representation or warranty set forth in Sections 5.1(p), (t), (x) or (y) shall constitute a Termination Event pursuant to this clause (c) if credit has been given for a reduction of the Purchase Price, the outstanding principal balance of the applicable Subordinated Note has been reduced or the Company if applicable Originator has made a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable ordercash payment to the Buyer, decree or rulingin any case, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergeras required pursuant to Section 3.4(c) with respect to such breach;
(d) by either Parent any Originator shall fail to perform or the Company if (i) the Company Stockholders’ Meeting (including observe any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreementother term, and (ii) covenant or agreement contained in this Agreement shall not have been adopted at the Company Stockholders’ Meeting (or any other Transaction Document to which it is a party on its part to be performed or observed and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; providedsuch failure, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available solely to the Company where the failure to obtain the Required Company Stockholder Approval extent capable of cure, shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;continue unremedied for ten (10) Business Days; or
(e) by either Parent any Insolvency Proceeding shall be instituted against any Originator and such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days or any of the actions sought in such proceeding (including the entry of an order for relief against, or the Company if the Parent Stockholders’ Meeting (including appointment of a receiver, trustee, custodian or other similar official for, it or for any adjournments and postponements thereofsubstantial part of its property) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)occur.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Agreement may be terminated prior to the Effective Time Closing (whether before or after the adoption and approval of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by the mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such date 5:00 p.m. (Eastern Standard Time) on December 31, 2013 (the “End Date”) and such action 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 Parent to act constitutes a breach comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement);
(c) by either Parent or the Company if the Closing has not taken place on or before 5:00 p.m. (Eastern Standard Time) on the End Date and any condition set forth in Section 7 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 the Company or any of the stockholders of the Company to comply with or perform any covenant or obligation set forth in this Agreement or in any other agreement or instrument delivered to Parent in connection with the transactions contemplated by this Agreement);
(d) by Parent if: (i) a court of competent jurisdiction or other Governmental Body Entity 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 the Merger;
(d) by either Parent ; or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement there shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at be any adjournment applicable Legal Requirement enacted, promulgated, issued or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available deemed applicable to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused Merger by the action or failure to act any Governmental Entity that would make consummation of the Company and such action or failure to act constitutes a material breach by the Company of this AgreementMerger illegal;
(e) by either Parent or the Company if if: (i) a court of competent jurisdiction in the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) United States or other federal or state Governmental Entity shall have been held issued a final and completed and Parent’s stockholders nonappealable order, decree or ruling, or shall have taken a final vote on any other action, having the issuance effect of shares of Parent Common Stock in permanently restraining, enjoining or otherwise prohibiting the Company from consummating the Merger; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger and the issuance by any federal or state Governmental Entity that would make consummation of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this AgreementCompany illegal;
(f) by Parent if: (i) any of the representations and warranties of the Company (at any time prior to the approval contained in this Agreement shall be inaccurate as of the issuance date of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty shall have become inaccurate as of Parent or Merger Sub a date subsequent to the date of this Agreement, such that the condition set forth in Section 6.1 would not be satisfied; (ii) any of the covenants of the Company contained in this Agreement shall have become inaccurate, in either case been breached such that the conditions condition set forth in Section 8.1 or Section 8.2 6.2 would not be satisfied as 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, however, that, in the case of clauses “(i)” and “(ii)” only, if an inaccuracy in any of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then of the Company as of a date subsequent to the date of this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, a covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company through the use of reasonable efforts within 10 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 shall not terminate pursuant to under this Section 9.1(i8.1(f) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) Cure Period, provided the Company, during the Company ceasing Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that Parent may not terminate this Agreement shall not terminate pursuant to this Section 9.1(i8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Company Cure Period); and
(g) 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 7.1 would not be 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 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts within 10 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 8.1(g) as a result of such particular 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 8.1(g) with respect to such inaccuracy or breach if such inaccuracy or breach by the Company is cured prior to such termination becoming effectivethe expiration of the Parent Cure Period).
Appears in 1 contract
Termination Events. This 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 Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent Parent, Seller, and the CompanyBuyer;
(b) by either Parent and Seller, on the one hand, or Buyer, on the Company other hand, by giving written notice to the other Parties if the Merger Closing shall not have been consummated occurred by August 15the Termination Date, 2007as extended; provided, however, provided that the right to terminate this Agreement under this Section 9.1(bclause (b) shall not be available to any party Party whose action or failure to act fulfill any obligation under this Agreement has been a principal the cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreementdate;
(c) by either Parent and Seller, on the one hand, or Buyer, on the Company other hand, by giving written notice to the other Parties if a court of competent jurisdiction or other any Governmental Body Authority shall have issued a final and nonappealable an order, decree or ruling, ruling or shall have taken any other action, having the effect of action permanently restraining, enjoining or otherwise prohibiting the Mergerconsummation 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;
(d) by either Parent Buyer (provided that Buyer is not then in material breach of any representation or the Company warranty, or material covenant contained herein), if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) there shall have been held and completed and a material breach of any of the Company’s stockholders shall have taken a final vote on a proposal to adopt representations or warranties, or material covenants of Parent or Seller set forth in this Agreement, which breach would constitute, either individually or in the aggregate, if occurring on the Closing Date, the failure of the conditions set forth in Sections 7.3(a) or 7.3(b) (a “Seller Terminating Breach”); provided that if, (x) within ten (10) Business Days following receipt by Seller of written notice from Buyer specifying the nature of the Seller Terminating Breach in reasonable detail (the “Seller Breach Notice”), Seller delivers to Buyer a notice outlining the manner in which, and the time within which, such Seller Terminating Breach shall be, or is reasonably likely to be, cured such that a Seller Terminating Breach shall no longer be continuing (a “Seller Cure Plan”), and (iiy) this Agreement within 30 days following receipt by Seller of the Seller Breach Notice, Parent or Seller commences implementation of the actions described in such Seller Cure Plan and continues to exercise its reasonable best efforts to cure such Seller Terminating Breach such that a Seller Terminating Breach shall no longer be continuing, Buyer may not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d10.1(d) until the Termination Date; provided further that Buyer’s right to terminate pursuant to this Section 10.1(d) shall not be available lapse if and when such Seller Terminating Breach is cured such that the Seller Terminating Breach is no longer continuing and Parent and Seller are otherwise no longer in breach, which breach would give rise to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act a right of the Company and such action or failure to act constitutes a material breach by the Company of termination under this Agreement;Section 10.1(d); or
(e) by either Parent and Seller (provided that Parent and Seller are not then in material breach of any representation or the Company warranty, or material covenant contained herein), if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) there shall have been held and completed and Parent’s stockholders shall have taken a final vote material breach of any of the representations or warranties, or material covenants of Buyer set forth in this Agreement, which breach would constitute, either individually or in the aggregate, if occurring on the issuance Closing Date, the failure of shares the conditions set forth in Sections 7.2(a) or 7.2(b) (a “Buyer Terminating Breach”); provided that if, (x) within ten (10) Business Days following receipt by Buyer of Parent Common Stock written notice from Seller specifying the nature of the Buyer Terminating Breach in reasonable detail (the Merger “Buyer Breach Notice”), Buyer delivers to Seller a notice outlining the manner in which, and the issuance time within which, such Buyer Terminating Breach shall be, or is reasonably likely to be, cured such that a Buyer Terminating Breach shall no longer be continuing (a “Buyer Cure Plan”), and (y) within 30 days following receipt by Buyer of the Buyer Breach Notice, Buyer commences implementation of the actions described in such Buyer Cure Plan and continues to exercise its reasonable best efforts to cure such Buyer Terminating Breach such that a Buyer Terminating Breach shall no longer be continuing, Parent Common Stock in the Merger shall and Seller may not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e10.1(e) shall not be available to Parent where until the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such Termination Date; provided further that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Suband Seller’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not right to terminate pursuant to this Section 9.1(h10.1(e) as a result of shall lapse if and when such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub Buyer Terminating Breach is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth Buyer Terminating Breach is no longer continuing and Buyer is otherwise no longer in Section 7.1 or Section 7.2 breach, which breach would not be satisfied as give rise to a right of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to termination under this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective10.1(e).
Appears in 1 contract
Samples: Share Purchase Agreement (SSI Southland Holdings, Inc.)
Termination Events. This Agreement may be terminated at any time prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing Date:
(a) by mutual written consent duly authorized by the boards of directors of Parent Network CN and the CompanySelling Shareholder (pursuant to a written instrument signed by Network CN and the Selling Shareholder);
(b) by either Parent Network CN or the Company Selling Shareholder if any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of the Merger Transactions shall have become final and nonappealable; provided, however, that (A) the Party or Parties seeking to terminate this Agreement pursuant to this Section 7.1(b) must have used all reasonable efforts to remove any such Order prior to the Termination Date and (B) no Party may terminate this Agreement pursuant to this Section 7.1(b) if its breach of its obligations under this Agreement proximately contributed to the occurrence of such Order;
(c) by Network CN if:
(i) the Selling Shareholder or the Operating Companies shall have breached any representation, warranty or covenant contained herein and (A) such breach shall not have been consummated cured within thirty (30) days after receipt by August 15the Selling Shareholder of written notice of such breach (provided, 2007however, that no such cure period shall be available or applicable to any such breach which by its nature cannot be cured); provided, however, that the termination right to terminate this Agreement under this Section 9.1(b7.1(c)(i) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a Network CN if Network NC is at that time in material breach of this Agreement;
(c) by either Parent or the Company 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 the Merger);
(d) by either Parent or the Company Selling Shareholder (pursuant to a written instrument signed by Selling Shareholder) if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) Network CN shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreementbreached any representation, warranty or covenant contained herein and (iiA) this Agreement such breach shall not have been adopted at the Company Stockholders’ Meeting cured within thirty (and 30) days after receipt by Network CN of written notice of such breach (provided, however, that no such cure period shall be available or applicable to any such breach which by its nature cannot have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe cured); provided, however, that the termination right to terminate this Agreement under this Section 9.1(d7.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a Selling Shareholder if Selling Shareholder is at that time in material breach by the Company of this Agreement);
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by the boards of directors of Parent Purchaser and the CompanySeller;
(b) by either Parent Purchaser or the Company Seller if the Merger Share Transfer shall not have been consummated by August April 15, 20072013 (the “Outside Date”); provided, however, that the right that, a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(b8.1(b) shall not be available to any party whose action or if the failure to act has been consummate the Share Transfer by the Outside Date is attributable to a principal cause failure on the part of such party to perform any covenant or obligation in this Agreement that is required to be performed by such party at or prior to the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementClosing Date;
(c) by either Parent Purchaser or the Company 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 the MergerShare Transfer; provided, however, that the party seeking to terminate this Agreement pursuant to this Section 8.1(c) shall have used its commercially reasonable efforts to contest, appeal and remove such order, decree, ruling or other action;
(d) by either Parent Purchaser if Seller or the Company breaches any of its representations, warranties, or covenants hereunder and such breach would cause any of the conditions set forth in Section 7.2(a) or Section 7.2(b) not to be satisfied;
(e) by Seller if Purchaser breaches any of its representations, warranties, or covenants hereunder and such breach would cause any of the conditions set forth in Section 7.3(a) or Section 7.3(b) not to be satisfied;
(f) by either Purchaser or Seller if: (i) the Company Stockholders’ Shareholder Meeting (including any adjournments and postponements thereof) shall have been held and completed and the CompanySeller’s stockholders shareholders shall have taken a final vote on a proposal to adopt and approve this Agreement, ; and (ii) this Agreement shall not have been adopted and approved at the Company Stockholders’ Shareholder Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder required Shareholder Approval;
(g) by Purchaser if: (i) Seller or the Company shall have materially breached or failed to perform, in any material respect, any of its obligations set forth in Section 4.3, 4.4 or 4.6 in a manner adverse to Purchaser; (ii) an Adverse Recommendation Change occurs; (iii) Seller or the Seller Board (or any committee thereof) shall publicly approve or publicly recommend, or cause or permit Seller or the Company to enter into, an Alternative Acquisition Agreement relating to an Acquisition Proposal; or (iv) Seller or the Seller Board (or any committee thereof) fails publicly to reaffirm its recommendation of the Transaction within 10 business days after the date any Acquisition Proposal or any material modification thereto is first publicly announced to Seller’s shareholders upon a request to do so by Purchaser (it being agreed that Purchaser may make only one such request with respect to any single Acquisition Proposal or modification thereof);
(h) by Seller, at any time prior to obtaining the Shareholder Approval, in order to accept a Superior Offer in accordance with Section 4.4(a); provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval Seller shall have been caused by (i) simultaneously with such termination entered into the action or failure associated Alternative Acquisition Agreement, (ii) otherwise complied with all provisions of Section 4.4(a), including the notice provision, and (iii) paid any amounts due pursuant to act of Parent and such action or failure to act constitutes a material breach by Parent of this AgreementSection 8.5;
(fi) by the Company (Seller, at any time prior to the approval of the issuance of Parent Common Stock Closing Date, in the Merger by event that Purchaser notifies Seller that it no longer believes in good faith that it will be able to obtain the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;Financing; and
(gj) by Parent (Purchaser, at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurateClosing Date, in either case such the event that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall Tax Conditions are not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective)satisfied; and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Tax Deficit as set forth in the Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company 382 Study is cured prior to such termination becoming effective)greater than $5,000,000.00.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before The occurrence of any one or after adoption of this Agreement by the Company’s stockholders and whether before or after approval more of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events shall constitute a “Termination Event”:
(a) by mutual Such Originator shall fail to make any payment or deposit required hereunder when due, or to perform or observe any term, covenant or agreement hereunder or under any other Transaction Document to which it is a party and such failure shall continue for 30 days after written consent duly authorized by the boards notice of directors of Parent and the Company;such failure is given.
(b) Any representation, warranty, certification or written statement made by either Parent such Originator in this Agreement, any other Transaction Document to which it is a party, or the Company if the Merger in any other document delivered pursuant hereto or thereto shall not prove to have been consummated by August 15, 2007materially incorrect when made or deemed made; provided, however, provided that the right to terminate this Agreement under this Section 9.1(b) materiality threshold in the preceding clause shall not be available applicable with respect to any party whose action representation or failure to act has been warranty which itself contains a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;materiality threshold.
(c) An Originator fails to (A) make any payment when due (whether by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable orderscheduled maturity, decree or rulingrequired prepayment, acceleration, demand, or shall have taken otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000,000, or (B) observe or perform any other actionagreement or condition relating to such Indebtedness or Guarantee referred to in the immediately preceding clause (A) or contained in any instrument or agreement evidencing, having securing or relating thereto, or any other event occurs, the effect of permanently restrainingwhich default or other event is to cause, enjoining or otherwise prohibiting to permit the Merger;holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded.
(d) There occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which an Originator is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which an Originator is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken such Originator as a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act result thereof is greater than $50,000,000. Table of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;Contents
(e) by either Parent An Originator institutes or consents to the Company if institution of any proceeding under any Debtor Relief Law, or makes an assignment for the Parent Stockholders’ Meeting benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, examiner, rehabilitator or similar officer for it or for all or any material part of its property; or (including ii) any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the issuance application or consent of shares of Parent Common Stock in the Merger such Originator and the issuance appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to an Originator or to all or any material part of Parent Common Stock its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;proceeding.
(f) by the Company (at any time prior to the approval A Change of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event Control shall have occurred;occur.
(g) by Parent There is entered against an Originator (at any time prior i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the $50,000,000 (to the approval of extent not covered by independent, third-party insurance as to which the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Companyapplicable insurer has not disputed, upon a breach of any representation, warranty, covenant denied or agreement on the part of Parent or Merger Sub set forth in this Agreementfailed to acknowledge coverage), or if (ii) any representation one or warranty of Parent more nonmonetary final judgments that have, or Merger Sub set forth could reasonably be expected to have, individually or in this Agreement shall have become inaccuratethe aggregate, a Material Adverse Effect and, in either case case, (A) enforcement proceedings are commenced by any creditor upon such that the conditions set forth in Section 8.1 judgment or Section 8.2 would not be satisfied as order, or (B) there is a period of the time 30 consecutive days during which a stay of enforcement of such breach or as of the time such representation or warranty shall have become inaccuratejudgment, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration reason of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach pending appeal or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall otherwise, is not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)effect.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Mohawk Industries Inc)
Termination Events. This Subject to the provisions of Section 9.2, this Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by of the boards of directors of Parent Sellers and the CompanyBuyer;
(b) by either Parent the Sellers or the Company Buyer by giving written notice to the other if the Merger Closing shall not have been consummated occurred by August 15the Drop Dead Date, 2007unless extended by written agreement of the Sellers and the Buyer; provided, however, provided that the right to terminate this Agreement under this Section 9.1(bsubsection (b) shall not be available to any party Party whose action or failure to act fulfill any obligation under this Agreement in all material respects has been a principal the cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreementthe Drop Dead Date;
(c) by either Parent the Sellers or the Company Buyer by giving written notice to the other Party if a court of competent jurisdiction or other (i) any Governmental Body Authority shall have issued a final and nonappealable an order, decree or ruling, ruling or shall have taken any other action, having the effect of Action permanently restraining, enjoining or otherwise prohibiting the Mergerconsummation 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 Party seeking to terminate this Agreement shall have used its commercially reasonable efforts to remove or lift such order, decree, ruling or other Action, if it has standing to do so, before it became final and unappealable, and, provided, further, that the right to terminate pursuant to this Section 9.1(c) is not available to any Party whose breach of any provision of this Agreement results in or causes such order, decree, ruling or other Action, or (ii) there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited;
(d) by either Parent or the Company Buyer by written notice to the Sellers if (i) the Company Stockholders’ Meeting (including Buyer is not then in material breach of any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) provision of this Agreement shall not have and there has been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provideda breach, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action inaccuracy in or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of perform any representation, warranty, covenant or agreement on made by the part of Parent Company or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in the Sellers pursuant to this Agreement shall have become inaccurate, in either case such that would give rise to the failure of any of the conditions set forth in Section 8.1 Sections 7.1 or Section 8.2 would 7.3 and such breach, inaccuracy or failure is not be satisfied curable or, if curable, it has not been cured by the Company or the Sellers, as the case may be, on or before the Drop Dead Date; or
(e) by the Sellers by written notice to the Buyer if the Sellers and the Company are not then in material breach of the time any provision of such breach or as of the time such representation or warranty shall have become inaccuratethis Agreement and there has been a breach, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant failure to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of perform any representation, warranty, covenant or agreement on made by the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in Buyer pursuant to this Agreement shall have become inaccurate, in either case such that would give rise to the failure of any of the conditions set forth in Section 7.1 7.2 and such breach, inaccuracy or Section 7.2 would failure is not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccuratecurable or, provided that if such inaccuracy in the Company’s representations and warranties or breach curable, it has not been cured by the Company is curable by Buyer on or before the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Drop Dead Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kapstone Paper & Packaging Corp)
Termination Events. This Agreement may be terminated at any time prior to Closing upon prior written notice by the Effective Time (whether before or after adoption of party electing to terminate this Agreement by to the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):other party:
(a) by mutual written consent duly authorized by the boards agreement of directors of Parent HCA and the CompanyPurchaser (expressed in writing);
(b) by either Parent HCA or Purchaser if any permanent injunction, Court Order or other order, decree or ruling of any court or other Governmental Authority of competent jurisdiction permanently restraining, enjoining or otherwise preventing the consummation of the transactions contemplated hereby shall have been issued and become final and non-appealable; provided, however, that any such injunction, Court Order or other order, decree or ruling that affects only a portion of the Acquired Entities (or the Company transactions contemplated hereby with respect to only a portion of the Acquired Entities) will not enable HCA or Purchaser to terminate this Agreement with respect to the other Acquired Entities if and to the extent a Closing on a portion of the Acquired Entities would still be possible under Section 2.6;
(c) by either HCA or Purchaser if the Merger Closing shall not have been consummated occurred by August 15, 2007the Optional Termination Date; provided, however, that the right to terminate this Agreement under this Section 9.1(b10.1(c) shall not be available to any party whose action breach of its representations and warranties in this Agreement or whose failure to act has perform any of its covenants and agreements under this Agreement shall have been a principal contributing cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date the Optional Termination Date; and such action provided further that the Optional Termination Date shall be extended through March 31, 2006 for any party who has complied with or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingperformed, or shall who is in a position to comply with or perform, all conditions to the other party’s obligations other than receipt of the certificates of need required for the consummation of the transaction and if the required certificates of need have taken any other actionnot been received by March 31, having 2006 the effect of permanently restraining, enjoining or otherwise prohibiting parties will work together in good faith to determine whether to further extend the Merger;Optional Termination Date to a later time.
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, HCA upon a breach in any material respect of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company Purchaser set forth in this Agreement, or if any representation or warranty of the Company Purchaser shall have been breached or shall have become untrue, in any such case that the conditions set forth in Sections 8.1 and 8.2 would be incapable of being satisfied by the Optional Termination Date (or any later termination date specified in this Agreement or as may be otherwise extended by mutual agreement of the parties).
(e) by Purchaser upon a breach in any material respect of any covenant or agreement on the part of any Seller set forth in this Agreement Agreement, or if any representation or warranty of any Seller shall have been breached or shall have become inaccurate, untrue in either any such case such that the conditions set forth in Section Sections 7.1 or Section and 7.2 would not be incapable of being satisfied by the Optional Termination Date (or any later termination date specified in this Agreement or as may be otherwise extended by mutual agreement of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectiveparties).
Appears in 1 contract
Samples: Stock Purchase Agreement (Lifepoint Hospitals, Inc.)
Termination Events. This If any of the following (each, a "Termination Event") shall occur:
(i) the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement may and, except as otherwise provided herein, such failure shall continue for 30 days after knowledge or notice thereof, (ii) the Servicer shall fail to make when due any payment or deposit to be terminated prior made by it under this Agreement and such failure shall continue unremedied for two Business Days or (iii) Werner shall resign as Servicer in contravention of Section 2.1(c) hereof and no successor Servicer reasonably acceptable to the Effective Time (whether before or after adoption of this Agreement Agent shall have been appointed by the Company’s stockholders and whether before Agent or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
Werner (aor any affiliate thereof) by mutual written consent duly authorized by the boards of directors of Parent and the Companyshall fail to transfer to xxx xuccessor Servicer when required any rights pursuant to this Agreement;
(b) any representation or warranty made or deemed made by either Parent the Servicer under or in connection with this Agreement or any other Transaction Document to which it is a party, or any information or report delivered by the Company if the Merger Servicer pursuant to this Agreement or any other Transaction Document to which it is a party, shall not prove to have been consummated by August 15incorrect or untrue in any material respect when made or deemed made or delivered, 2007; provided, however, that and shall remain incorrect or untrue for 30 days after notice to the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause Servicer of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreementinaccuracy;
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body Servicer shall have issued a final and nonappealable order, decree or rulinggenerally not pay its debts as such debts become due, or shall have taken admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Servicer seeking to adjudicate it a 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, custodian or other actionsimilar official for it or for any substantial part of its property and, having in the effect case of permanently restrainingany such proceeding instituted against it (but not instituted by it), enjoining either such proceeding shall remain undismissed or otherwise prohibiting unstayed for a period of 60 days, or any of the Mergeractions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or the Servicer shall take any corporate action to authorize any of the actions set forth above in this paragraph;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) a Change in Control shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvaloccur; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) by either Parent or an Event of Default under the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) Financing Agreement shall have been held occurred and completed and Parent’s stockholders be continuing; then, in each case, the Agent shall have taken a final vote on the issuance right, by notice to the Servicer, to terminate the rights of shares of Parent Common Stock in the Merger and Servicer to collect the issuance of Parent Common Stock in Accounts hereunder. Following such termination, the Merger Agent shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach appoint itself or inaccuracy and another entity as successor Servicer hereunder in accordance with Section 2.1, (ii) Parent direct the Customers to remit all amounts payable in respect of the Accounts directly to the Agent or Merger Sub its designee or into a Depository Account and (as applicableiii) ceasing take any and all steps in the name of the Purchaser and on behalf of the Purchaser necessary or desirable, in the determination of the Agent and in accordance with Section 8.3 of the Financing Agreement, to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach collect any and all amounts or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach portions thereof due in respect of any representationand all Accounts, warranty, covenant or agreement on Related Rights and the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)related Contracts.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption The occurrence of this Agreement by the Company’s stockholders and whether before or after approval any of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events or conditions shall constitute a Termination Event hereunder:
(a) by mutual written consent duly authorized by A party shall fail for any reason to make any payment to the boards other party when required pursuant to the provisions of directors Article V and such failure shall not have been cured within three business days of Parent and receipt of notice from the Companyother to such effect;
(b) by either Parent Except as otherwise provided in Section 9.2(a), a party shall fail to perform or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate breach or default in any of its obligations under this Agreement under this Section 9.1(b) shall not be available to any party whose action or and such failure to act has been a principal cause perform, breach or default is not cured within sixty days after receipt of notice from the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreementanother party thereof;
(c) by either Parent or the Company if A party shall (i) admit in writing its inability to pay its debts generally as they become due, (ii) file a court of competent jurisdiction voluntary petition under any bankruptcy, insolvency or other Governmental Body shall have issued a final and nonappealable orderlaw for the relief or aid of debtors, decree including without limitation the Bankruptcy Code of 1978, as amended, (iii) make any assignment for the benefit of its creditors or ruling, or shall have taken (iv) enter into any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergercomposition agreement;
(d) by either Parent An involuntary petition shall be filed against a party under any bankruptcy, insolvency or other law for the Company if (i) relief or aid of debtors, including without limitation the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Bankruptcy Code of 1978, as amended, which involuntary petition is not dismissed within sixty days after the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act date of the Company and such action or failure to act constitutes a material breach by the Company of this Agreementfiling thereof;
(e) by either Parent Any court of competent jurisdiction shall find that a party is insolvent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreementbankrupt;
(f) by the Company (at any time prior to the approval A receiver or trustee shall be appointed for a party or for all or a substantial portion of the issuance assets and properties of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredparty;
(g) by Parent (at any time prior to A final judgment shall be entered against a party which is not satisfied or bonded in full within thirty days after the approval date of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurredentry thereof;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as Any of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations assets and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration properties of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach party shall be levied upon, seized or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); andattached;
(i) by Parent, upon All or a breach of any representation, warranty, covenant or agreement on the part substantial portion of the Company set forth in this Agreementassets and properties of a party shall be lost, stolen, damaged or destroyed; or
(j) A party shall enter into, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurateconsummate, in either case an Extraordinary Transaction (as such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company term is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectivehereinafter defined).
Appears in 1 contract
Termination Events. This Agreement may be terminated and the Transaction abandoned at any time prior to the Effective Time (whether before or after adoption of this Agreement by Closing Date, provided however that upon any such termination the Company’s stockholders and whether before or after approval obligations of the issuance Parties under the Non-Disclosure Agreement dated January 31, 2003, shall continue in full force and effect in accordance with the terms of Parent Common Stock the Letter of Intent and Non-Disclosure Agreement, as if set forth in the Merger by Parent’s stockholders, unless otherwise specified below):full in this Agreement:
(a) by mutual written consent duly authorized by the boards of directors of Parent and the CompanyATS;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act there has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of ATS or any Stockholder and such breach has not been cured within ten business days after written notice to ATS (provided, that neither Parent or Merger Sub set forth nor Federal is in material breach of the terms of this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement and provided further, that no cure period shall have become inaccurate, in either case be required for a breach which by its nature cannot be cured) such that the conditions set forth in Section 8.1 7.2.1 or Section 8.2 would 7.2.2 hereof, as the case may be, will not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); andsatisfied;
(ic) by Parent, upon if ATS, its board of directors or any Stockholder shall have (i) withdrawn, modified or amended in any material respect the approval of this Agreement or the transactions contemplated herein, or (ii) taken any public position inconsistent with its approval or recommendation, including, without limitation, having failed (without the consent of Parent) after a reasonable period of time to reject or disapprove any Acquisition Proposal (or after a reasonable period of time to recommend to its shareholders such rejection or disapproval), and in that event ATS shall pay to Parent the amount specified in Section 6.1.2, provided that neither Parent nor Federal is in material breach of the terms of this Agreement;
(d) by ATS, if there has been a breach of any representation, warranty, covenant or agreement contained in this Agreement on the part of Parent or Federal and such breach has not been cured within ten business days after written notice to Parent (provided, that ATS is not in material breach of the Company set forth in terms of this Agreement, or if any representation or warranty of the Company set forth in this Agreement and provided further, that no cure period shall have become inaccurate, in either case be required for a breach which by its nature cannot be cured) such that the conditions set forth in Section 7.1 7.3.1 or Section 7.2 would 7.3.2 hereof, as the case may be, will not be satisfied as of satisfied, and in that event Parent shall pay to ATS the time of such breach or as of the time such representation or warranty shall have become inaccurateamount specified in Section 6.1.3, provided that neither ATS nor any Stockholder is in material breach of the terms of this Agreement;
(e) by ATS, if such inaccuracy ATS accepts an Acquisition Proposal for any reason, including pursuant to a good-faith determination by its board of directors, after consulting with counsel, that not to accept the Acquisition Proposal would constitute a breach of the directors’ fiduciary duty under the law of the Commonwealth of Virginia; provided, however, that in that event ATS shall, providing that neither Parent nor Federal is in material breach of the Company’s representations terms of this Agreement, pay to Parent the amount pursuant to Section 6.1.2;
(f) by ATS, if Parent (i) notifies ATS pursuant to Section 6.8.2 that Parent and warranties or breach by Federal are no longer interested in purchasing all of the Company is curable by Shares upon the Company then terms and conditions set forth in this Agreement shall not terminate or (ii) fails to confirm in writing pursuant to this Section 9.1(i6.8.2 that Parent then has no reason to conclude that the condition to Closing set forth in Section 7.2.6 will not be fulfilled at or prior to the Closing;
(g) by any party hereto if: (i) there shall be a final, non-appealable order of a federal or state court in effect preventing consummation of the Transaction; 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 Transaction by any Governmental Entity which would make consummation of the Transaction illegal or which would prohibit Parent’s or Federal’s ownership or operation of all or a material portion of the stock or assets of ATS, or compel Parent or Federal to dispose of or hold separate all or a material portion of the business or assets of ATS or Parent or Federal as a result of such particular breach or inaccuracy until the earlier of Transaction; or
(ih) by any party hereto if the expiration of a 30 day period commencing upon delivery of written notice from Parent Transaction shall not have been consummated by March 31, 2003 , provided that the right to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that terminate this Agreement under this Section 9.1(h) shall not terminate pursuant be available to any party whose failure to fulfill any material obligation under this Section 9.1(i) as a result Agreement has been the cause of, or resulted in, the failure of the Closing Date to occur on or before such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Caci International Inc /De/)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before The occurrence of any one or after adoption of this Agreement by the Company’s stockholders and whether before or after approval more of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events shall constitute a “Termination Event:”
(a) Customer shall fail to make any payment or deposit to be made by mutual written consent duly authorized by the boards of directors of Parent it hereunder when due (including pursuant to Sections 2.2(h), 2.4(d) and the Company;2.9(c) hereof) or under any Transaction Document when due; or
(b) (i) Customer shall waive any Servicer Default without the prior consent of Buyer, or (ii) no replacement Servicer has been appointed by either Parent or Customer (with the Company if the Merger prior consent of Buyer, which consent shall not have been consummated be unreasonably withheld or delayed) using good faith efforts within thirty (30) days of Customer obtaining knowledge of a Servicer Default that is not waived (with Buyer’s prior consent); or
(c) [Intentionally Omitted]
(d) Any representation, warranty, certification or statement made by August 15Customer or any of its Subsidiaries in this Agreement or in any other Transaction Document or in statement or certificate at any time given by Customer or any of its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect on the date as of which made provided, 2007; that if such default referred to in this Section 7.1(d) is susceptible of being cured, no Termination Event shall arise under this Section 7.1(d) unless such default shall remain uncured for a thirty (30) day period after such occurrence, provided, further, however, that if the right default is susceptible of cure (and is not susceptible to terminate this Agreement cure solely by the payment of money) but cannot reasonably be cured with such thirty (30) day period and Customer shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, Customer shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of sixty (60) days from the original occurrence, whereupon a Termination Event shall arise under this Section 9.1(b7.1(d); or any other document delivered pursuant hereto shall prove to have been incorrect, when made or deemed made; or
(e) (i) Customer or any of its Subsidiaries shall fail to pay when due (A) any principal of or interest on any Indebtedness (other than Indebtedness referred to in Section 7.1(a) above) or (B) any Contingent Obligation, in each case beyond the end of any grace period provided therefor; or (ii) a breach or default by Customer or any of its Subsidiaries with respect to any other material term of (a) any evidence of any Indebtedness or any Contingent Obligation, or (b) any loan agreement, mortgage, indenture or other agreement relating to such Indebtedness or Contingent Obligation(s), if the effect of such breach or default is to cause that Indebtedness or Contingent Obligation(s) to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be (upon the giving or receiving of notice, lapse of time, both, or otherwise); or
(f) Customer shall default in the performance of any other covenant or undertaking hereunder or under any Transaction Document, other than any such term referred to in any other paragraph of this Section 7.1; provided, that if such default referred to in this
Section 7.1 (f) is susceptible of being cured, no Termination Event shall arise under this Section 7.1(f) unless such default shall remain uncured for a thirty (30) day period after such occurrence, provided, further, however, that if the default is susceptible of cure (and is not susceptible to cure solely by the payment of money) but cannot reasonably be cured with such thirty (30) day period and Customer shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, Customer shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of sixty (60) days from the original occurrence, whereupon a Termination Event shall arise under this Section 7.1(f); or
(i) A court having jurisdiction shall enter a decree or order for relief in respect of Customer or any of its Subsidiaries in an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against Customer or any of its Subsidiaries under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Customer or any of its Subsidiaries, or over all or a substantial part of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee or other custodian of Customer or any of its Subsidiaries for all or a substantial part of its property; or a warrant of attachment, execution or similar process shall have been issued against any substantial part of the property of Customer or any of its Subsidiaries, and any such event described in this clause (ii) shall not continue for sixty (60) days unless dismissed, bonded or discharged; or
(i) Customer or any of its Subsidiaries shall have an order for relief entered with respect to it or commence a voluntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent 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 shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or Customer or any of its Subsidiaries shall make any assignment for the benefit of creditors; or (ii) Customer or any of its Subsidiaries shall be available unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the managers or directors or trustees of Customer or of any party whose of its Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action or failure to act has been a principal cause approve any of the failure actions referred to in clause (i) above or this clause (ii); or
(i) Any money judgment, writ or warrant of attachment or similar process involving (i) in any individual case an amount in excess of $250,000 or (ii) in the Merger aggregate at any time an amount in excess of $1,000,000 (in either case not adequately covered by insurance as to occur on which a solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or before such filed against Customer or any of its Subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days (or in any event later than five (5) days prior to the date of any proposed sale thereunder); or
(j) Any order, judgment or decree shall be entered against Customer or any of its Subsidiaries decreeing the dissolution or split up of Customer or that Subsidiary and such action order shall remain undischarged or failure unstayed for a period in excess of thirty (30) days; or
(k) There shall occur one or more ERISA Events which individually or in the aggregate results in or might reasonably be expected to act constitutes a breach result in liability of Customer or any of its ERISA Affiliates in excess of $250,000 during the term of this Agreement;; or there shall exist an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which assets exceed benefit liabilities), which exceeds $1,000,000; provided, that if such default referred to in this Section 7.1(k) is susceptible of being cured, no Termination Event shall arise under this Section 7.1(k) unless such default shall remain uncured for a thirty (30) day period after such occurrence, provided, further, however, that if the default is susceptible of cure but cannot reasonably be cured with such thirty (30) day period and Customer shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, Customer shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of sixty (60) days from the original occurrence, whereupon an Termination Event shall arise under this Section 7.1(k); or
(cl) by either Parent Customer or the Company if a court any Subsidiary of competent jurisdiction or other Governmental Body Customer shall have issued a final and nonappealable order, decree or rulingbe convicted of, or shall have taken indicted for, any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;crime; or
(dm) any material deficiency or qualification in any audit performed in connection with the Warehouse Assets is not, in the opinion of Buyer, satisfactorily cured within thirty (30) days (which cure may be accomplished by either Parent or making voluntary Partial Prepayments of Invested Principal with respect to the Company if Warehouse Assets that are the subject of such audit);or
(in) the Company Stockholders’ Meeting a Change of Control shall occur; or
(including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (iio) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at for any adjournment reason cease to create a valid, first priority ownership or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act security interest in any of the Company Receivables and such action other Warehouse Assets, or failure to act constitutes a material breach the validity or enforceability thereof shall be contested by the Company Customer or any Subsidiary or Affiliate of this Agreement;Customer; or
(ep) by either Parent or Customer fails to comply with any of the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock Financial Condition Covenants in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalaccordance with Section 5.1(n); provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(fq) by the Company (Customer shall cease at any time prior to qualify as a REIT under the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;Code; or
(gr) by Parent (at any time prior Customer shall cease to the approval of the Merger by the Required Company Stockholder Approval) if be a Company Triggering Event shall have occurred;
(h) by the Companypublicly traded company listed, upon a breach of any representation, warranty, covenant quoted or agreement traded on the part of Parent New York Stock Exchange, the American Stock Exchange or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)NASDAQ.
Appears in 1 contract
Samples: Revolving Warehouse Financing Agreement (Falcon Financial Investment Trust)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards By either of directors of Parent and the Company;
(b) by either Parent Seller or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company Aprion if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable an order, decree or ruling, ruling or shall have taken any other actionaction (which order, having decree or ruling the effect parties hereto shall use their best efforts to lift) and such was not at the request of the party seeking termination of the Agreement, in each case permanently restraining, enjoining or otherwise prohibiting the Merger;transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable; or
(b) by Seller if the Closing has not taken place on or before December 31, 2002 (other than as a result of the failure on the part of Seller or Scitex Vision to comply with or perform any covenant or obligation set forth in this Agreement); or
(c) by the mutual written consent of Aprion and Seller; or
(d) by either Parent or the Company Aprion, if (i) Scitex Vision or Seller shall breach any representation, warranty, obligation or agreement hereunder, including Seller’s obligations under Section 6.8 hereunder, such that the Company Stockholders’ Meeting (including any adjournments conditions referred to in Section 7.1 or Section 7.2 would not be satisfied and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement such breach shall not have been adopted at the Company Stockholders’ Meeting cured within seven (and shall not have been adopted at any adjournment or postponement thereof7) by the Required Company Stockholder Approval; providedbusiness days following written notice of such breach, however, provided that the right to terminate this Agreement by Aprion under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material Aprion is at that time in breach by the Company of this Agreement;, or (ii) the Board of Directors of Scitex Vision or Seller shall have withdrawn or modified its recommendation of this Agreement or the Transactions in a manner adverse to Aprion or recommended, endorsed, accepted or agreed to an Acquisition Transaction or shall have resolved to do any of the foregoing; and
(e) by either Parent or the Company Seller, if the Parent Stockholders’ Meeting (including any adjournments and postponements thereofi) Aprion shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant obligation or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case hereunder such that the conditions set forth referred to in Section 8.1 or Section 8.2 would not be satisfied as of the time and such breach shall not have been cured within seven (7) business days following written notice of such breach or as of the time such representation or warranty shall have become inaccuratebreach, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then the right to terminate this Agreement by Seller under this Section 9.1(e) shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach be available where Seller or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood Scitex Vision is at that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a time in breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, ; or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that Board of Directors of Aprion shall have withdrawn or modified its recommendation of this Agreement or the Transactions in a manner adverse to Aprion or recommended, endorsed, accepted or agreed to an Acquisition Transaction or shall not terminate pursuant have resolved to this Section 9.1(i) as a result do any of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)foregoing.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval Each of the issuance following events or occurrences described in this Section 8.1 shall constitute a “Termination Event” (each event which with notice or the passage of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified belowtime or both would become a Termination Event being referred to herein as an “Unmatured Termination Event”):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the CompanyTermination Date shall have occurred;
(b) any Originator shall fail to make when due any payment or deposit to be made by either Parent it under this Agreement or the Company if the Merger any other UK Transaction Document to which it is a party and such failure shall not remain unremedied for two (2) Business Days;
(c) any written representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement, any other UK Transaction Documents or Transaction Documents to which it is a party, or any other written information or report delivered pursuant hereto or thereto shall prove to have been consummated by August 15, 2007incorrect or untrue in any material respect when made or deemed made or delivered; provided, however, that the right to terminate this Agreement under this Section 9.1(b) such breach shall not be available constitute a Termination Event pursuant to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
clause (c) by either Parent if such breach, solely to the extent capable of cure, is cured within ten (10) Business Days (or two (2) Business Days with respect to a breach in the information set forth in an Interim Report) following the date that a Financial Officer or other Responsible Officer has knowledge or has received notice of such breach provided, further that no breach of a representation or warranty set forth in Sections 5.1(p), (t), (x) or (y) shall constitute a Termination Event pursuant to this clause (c) if credit has been given for a reduction of the Purchase Price, the outstanding principal balance of the applicable Subordinated Note has been reduced or the Company if applicable Originator has made a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable ordercash payment to the Buyer, decree or rulingin any case, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergeras required pursuant to Section 3.3(c) with respect to such breach;
(d) by either Parent any Originator shall fail to perform or the Company if (i) the Company Stockholders’ Meeting (including observe any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreementother term, and (ii) covenant or agreement contained in this Agreement shall not have been adopted at the Company Stockholders’ Meeting (or any other UK Transaction Document to which it is a party on its part to be performed or observed and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; providedsuch failure, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available solely to the Company where the failure to obtain the Required Company Stockholder Approval extent capable of cure, shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;continue unremedied for ten (10) Business Days; or
(e) by either Parent any Insolvency Proceeding shall be instituted against any Originator and such proceeding shall remain undismissed or unstayed for a period of sixty (60) consecutive days or any of the actions sought in such proceeding (including the entry of an order for relief against, or the Company if the Parent Stockholders’ Meeting (including appointment of a receiver, trustee, custodian or other similar official for, it or for any adjournments and postponements thereofsubstantial part of its property) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)occur.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by of Parent, the boards of directors of Parent Purchaser and the CompanySeller;
(b) by either Parent and the Purchaser or the Company Seller if the Merger Transactions shall not have been consummated by August May 15, 20072001 (the "Termination Date"); provided, however, that the right (i) a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(b8.1(b) if the failure to consummate the Transactions by the Termination Date is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Closing Date, and (ii) the Seller shall not be available permitted to terminate this Agreement pursuant to this Section 8.1(b) unless the Seller shall have made any party whose action or failure payment required to act has been a principal cause of be made to the failure of Purchaser pursuant to Section 8.4(a) and shall have paid to the Merger Purchaser any fee required to occur on or before such date and such action or failure be paid to act constitutes a breach of this Agreementthe Purchaser pursuant to Section 8.4(c);
(c) by either Parent and the Purchaser or the Company 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 the MergerTransactions;
(d) by either Parent and the Purchaser or the Company Seller if (i) the Company Stockholders’ Shareholders' Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders Seller's shareholders shall have taken a final vote on a proposal to adopt this Agreementapprove the Acquisition and the Plan of Dissolution, and (ii) this Agreement the Acquisition and the Plan of Dissolution shall not both have been adopted approved at the Company Stockholders’ Shareholders' Meeting (and shall not have been adopted or at any adjournment or postponement thereof) by the Required Company Stockholder ApprovalShareholder Vote; provided, however, that the right (A) a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(d8.1(d) if the failure to have the Acquisition and the Plan of Dissolution approved by the Required Shareholder Vote is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Closing Date, and (B) the Seller shall not be available 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 Company where the failure Purchaser pursuant to obtain the Required Company Stockholder Approval Section 8.4(a) and shall have been caused by paid to the action or failure Purchaser the fee required to act of be paid to the Company and such action or failure Purchaser pursuant to act constitutes a material breach by the Company of this AgreementSection 8.4(c);
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company Purchaser (at any time prior to the approval of the issuance Acquisition and the Plan of Parent Common Stock in the Merger Dissolution by the Required Parent Stockholder ApprovalShareholder Vote) if a Parent Triggering Event shall have occurred;
(gf) by Parent and the Purchaser if (at i) any time prior to the approval of the Merger by Seller's representations and warranties contained in this Agreement shall be inaccurate as of the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach date of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if any representation or warranty of Parent or Merger Sub made on such subsequent date), such that the condition set forth in Section 6.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, any update of or modification to the Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), or (ii) any of the Seller's covenants contained in this Agreement shall have become inaccurate, in either case been breached such that the conditions condition set forth in Section 8.1 or Section 8.2 6.2 would not be satisfied satisfied; provided, however, that if an inaccuracy in any of the Seller's representations and warranties 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 and the Seller is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent and the Purchaser may not terminate this Agreement under this Section 8.1(f) on account of such inaccuracy or breach; or
(g) by the Seller if (i) any of the representations and warranties of Parent and the Purchaser contained in this Agreement shall be inaccurate as of the time date of such breach this Agreement, or as of the time such representation or warranty shall have become inaccurateinaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), provided such that the condition set forth in Section 7.1 would not be satisfied, or (ii) if any of the covenants of Parent and the Purchaser 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 such an inaccuracy in Parent’s or Merger Sub’s any of the representations and warranties of Parent and the Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent or Merger Sub the Purchaser is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy Purchaser and (ii) Parent or Merger Sub (as applicable) ceasing the Purchaser is continuing to exercise commercially all reasonable efforts to cure such breach (it being understood that inaccuracy or breach, then the Seller may not terminate this Agreement shall not terminate pursuant to under this Section 9.1(h8.1(g) as a result on account of such particular breach inaccuracy or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)breach.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
Closing: (a) by the mutual written consent duly authorized by the boards of directors of Parent Purchaser and the Company;
Selling Shareholders; (b) by either Parent or the Company Purchaser if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such date and such action the End Date (other than as a result of any failure on the part of Purchaser to comply with or failure perform any covenant or obligation of Purchaser set forth in this Agreement or in any other agreement or instrument delivered to act constitutes a breach of the Company in connection with the transactions contemplated by this Agreement;
); (c) by either Parent Selling Shareholders if the Closing has not taken place on or before the End Date (other than as a result of any failure on the part of the Company or the Selling Shareholders to comply with or perform any covenant or obligation of the Company if or the Selling Shareholders set forth in this Agreement or in any other agreement or instrument delivered to Purchaser in connection with the transactions contemplated by this Agreement); (d) by either Purchaser or the Selling Shareholders if: (i) 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 the Merger;
transactions contemplated by this Agreement; or (dii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the transactions contemplated by this Agreement by any Governmental Body that would make consummation of such transactions illegal; (e) by either Parent or the Company if Purchaser if: (i) any of the representations and warranties of the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and or the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) Selling Shareholders contained in this Agreement shall not be true and correct as of the date of this Agreement, or shall have been adopted at become inaccurate 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 Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate Selling Shareholders contained in this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by breached such that the action condition set forth in Section 7.2 would not be satisfied; or failure to act of the Company and such action or failure to act constitutes (iii) a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) Material Adverse Effect shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger occurred and the issuance of Parent Common Stock change or effect resulting therefrom continues in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, effect such that the right to terminate this Agreement under this condition set forth in Section 9.1(e) shall 7.4 would not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action satisfied; or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
- 37 - (f) by the Company Selling Shareholders if: (at i) any time prior to the approval of Purchaser’s representations and warranties contained in this Agreement shall be inaccurate as of the issuance date of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in 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 satisfied; or (ii) if any representation or warranty of Parent or Merger Sub set forth Purchaser’s covenants contained in this Agreement shall have become inaccurate, in either case been breached such that the conditions condition set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)satisfied.
Appears in 1 contract
Samples: Share Purchase Agreement
Termination Events. This Agreement may be terminated at any time prior to the Effective Time (Time, whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval receipt of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Requisite Purchaser Consent:
(a) by mutual written consent duly authorized by of the boards of directors of Parent Purchaser and the Company;
(b) by either Parent the Company or the Company Purchaser if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b(i) shall not be available to any party whose action or failure to act Governmental Authority of competent jurisdiction has been a principal cause of the failure denied approval of the Merger to occur on or before such date and such action denial has become final and nonappealable or failure to act constitutes a breach of this Agreement;
(cii) by either Parent any court or the Company if a court Governmental Authority of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, injunction or decree or ruling, other legal restraint or shall have taken any other action, having the effect of prohibition permanently restraining, enjoining or otherwise prohibiting preventing the consummation of the Merger, unless the issuance of such order, injunction, decree or other legal restraint, as applicable, shall be principally due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;
(c) by either the Company or the Purchaser if the Merger shall not have been consummated on or before the date that is one hundred and eighty (180) days after the date of this Agreement (the “Termination Date”), unless the failure of the Closing to occur by such date shall be principally due to the failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;
(d) by either Parent the Company or the Company Purchaser (provided, that the terminating party is not then in material breach of any obligation, covenant or other agreement contained herein) if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) there shall have been held and completed and a breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of the Purchaser or Merger Sub, in the case of a termination by the Company’s stockholders shall have taken , or the Company, in the case of a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) termination by the Required Company Stockholder Approval; providedPurchaser, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action which breach or failure to act be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Company and such action or Closing Date, the failure to act constitutes of a material breach condition set forth in Section 7.2, in the case of a termination by the Company Company, or Section 7.3, in the case of this Agreement;a termination by the Purchaser, and which is not cured within thirty (30) days (or such fewer days as remain prior to the Termination Date) following written notice to the Purchaser, in the case of a termination by the Company, or the Company, in the case of a termination by the Purchaser, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(e) by either Parent the Company or the Company Purchaser if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger Requisite Purchaser Consent shall not have been approved at delivered to the Parent Stockholders’ Meeting (Purchaser and shall not have been approved at any adjournment or postponement thereof) the Company by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Requisite Purchaser Consent Deadline in accordance with Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)6.9.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to before the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
Closing: (a) by the mutual written consent duly authorized by the boards of directors of Parent Purchaser and the Company;
; (b) by either Parent Purchaser if the Closing has not taken place on or before 5:00 p.m. (Central time) on the date that is 10 months after the Agreement Date (the “End Date”) and any condition set forth in Section 6 has not been satisfied or waived as of the time of termination (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 or in the Share Purchase Agreement); (c) by the Company if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such date 5:00 p.m. (Central time) on the End Date and such action any condition set forth in Section 7 has not been satisfied or waived as of the time of termination (other than as a result of any failure on the part of the Company to act constitutes a breach of comply with or perform any covenant or obligation set forth in this Agreement;
Agreement or any other Transaction Document); (cd) by either Parent or the Company if Purchaser if: (i) a court of competent jurisdiction or other Governmental Body Entity in India, Singapore or the United States shall have issued a final and nonappealable order, decree or ruling, Order or shall have taken any other action, action having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent Share Issuance or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this AgreementSecondary Share Purchase, and in whole or in part; or (ii) this Agreement there shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at be any adjournment applicable Legal Requirement enacted, promulgated, issued or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available deemed applicable to the Company where Share Issuance or the failure to obtain Secondary Share Purchase by any Governmental Entity in India, Singapore or the Required Company Stockholder Approval shall have been caused by the action or failure to act United States that would make consummation of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent Share Issuance or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurateSecondary Share Purchase illegal, in either case such that the conditions set forth whole or in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective)part; and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).51
Appears in 1 contract
Samples: Share Issuance and Acquisition Agreement (Walmart Inc.)
Termination Events. This Agreement may be terminated may, by written notice given to Culligan Parent or Primo Parent, as applicable, prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholdersClosing, unless otherwise specified below):be terminated:
(a) by mutual written consent duly authorized (i) Primo Parent, if any representation or warranty made by the boards any Culligan Party is inaccurate in any material respect or any Culligan Party has breached any covenant or agreement in this Agreement in any material respect and such inaccuracy or breach is not cured within 10 days following receipt of directors notice of Parent such inaccuracy or breach, or (ii) Culligan Parent, if any representation or warranty made by any Primo Party is inaccurate in any material respect or any Primo Party has breached any covenant or agreement in this Agreement in any material respect and the Companysuch inaccuracy or breach is not cured within 10 days following receipt of notice of such inaccuracy or breach;
(b) by (i) Primo Parent, if any condition in Section 6.1 has not been satisfied or waived in writing by December 31, 2010, or if satisfaction of any such condition is or becomes impossible (in either case, for reasons other than the failure of any Primo Party to comply with its obligations under this Agreement) or (ii) Culligan Parent, if any condition in Section 6.2 has not been satisfied or waived in writing by December 31, 2010 or if satisfaction of any such condition is or becomes impossible (in either case, for reasons other than the failure of any Culligan Party to comply with such Party’s obligations under this Agreement);
(c) by mutual consent of Primo Parent or and Culligan Parent; or
(d) by Culligan Parent, if Primo Parent has not filed the Company if amended Form S-1 contemplated by Section 5.11 by 30 days after the Merger shall not have been consummated by August 15, 2007date set forth in Section 5.11; provided, however, that the right to terminate this Agreement Culligan Parent may not exercise its rights under this Section 9.1(b7.1(d) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and representation or warranty made by any Culligan Party is inaccurate in any material respect or (ii) any Culligan Party has not complied (A) in all respects with its obligations under Section 5.9 or (B) in all material respects with its other obligations and covenants under this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalto be performed as of such date; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) by either Parent or Primo Parent, within 3 Business Days of the Company Delivery Date, if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall Sellers have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock not complied in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this all respects with Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)5.12.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time Closing (whether before or after the adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by the mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent if the Closing has not taken place on or before 5:00 p.m. (Pacific time) on May 20, 2009 (other than as a result of any failure on the part of Parent to comply with or perform any covenant or obligation of Parent or Merger Sub set forth in this Agreement or in any other agreement or instrument delivered to the Company in connection with the transactions contemplated by this Agreement);
(c) by the Company if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before such date and such action 5:00 p.m. (Pacific time) on May 20, 2009 (other than as a result of any failure on the part of the Company or failure any of the stockholders of the Company to act constitutes a breach of comply with or perform any covenant or obligation set forth in this Agreement or in any other agreement or instrument delivered to Parent in connection with the transactions contemplated by this Agreement);
(cd) by either Parent or the Company if if: (i) 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 the Merger; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Merger by any Governmental Body that would make consummation of the Merger illegal;
(de) by either Parent or the Company if if: (i) any of the representations and warranties of the Company Stockholders’ Meeting 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 6.1 would not be satisfied; or (including ii) any adjournments and postponements thereof) of the covenants of the Company contained in this Agreement shall have been held and completed and breached such that the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall condition set forth in Section 6.2 would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right 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 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 9.1(d8.1(e) shall not be available as a result of such inaccuracy or breach prior to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act expiration of the Company and such action or failure to act constitutes a material breach by Cure Period, provided the Company, during the Company of this Agreement;
Cure Period, continues to exercise reasonable efforts to cure such inaccuracy or breach (e) by either it being understood that Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall may not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under pursuant to this Section 9.1(e8.1(e) shall not be available with respect to Parent where such inaccuracy or breach if such inaccuracy or breach is cured prior to the failure to obtain expiration of the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this AgreementCompany Cure Period);
(f) by the Company if: (at i) any time 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 7.1 would not be 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 7.2 would not be satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts within 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 8.1(f) as a result of such inaccuracy or breach prior to the approval expiration of the issuance 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 8.1(f) with respect to such inaccuracy or breach if such inaccuracy or breach is cured prior to the expiration of the Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;Cure Period); or
(g) by Parent (at any time prior to the approval of the Merger by if the Required Company Merger Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by Votes or the Company, upon a breach Required Amendment Stockholder Votes are not obtained within one day after the date of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Termination Events. 18.1 This Agreement may be terminated prior to the Effective Time (whether before or after adoption end of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock its natural term as provided in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) Article XVII at any time by mutual written consent duly authorized by the boards agreement of directors of Parent and the Company;both parties.
(b) by either Parent or the Company if the Merger 18.2 A party hereto shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement by giving prior written notice upon the occurrence of any of the following events involving the other party hereto:
(i) A material breach of this Agreement by the other party, including without limitation the representations and warranties contained in Article XIX, which if capable of remedy, has not been remedied by such breaching party within thirty (30) calendar days of written notice by the non-breaching party;
(ii) The filing of any petition under this Section 9.1(b) shall the United States Bankruptcy Code, in effect from time to time, or any similar Federal or state statute by or against the other party if such petition is not be available to any party whose action dismissed within 120 days after service upon the other party, or failure to act has been a principal cause of the failure of the Merger other party generally to occur on pay its debts as such debts become due;
(iii) The filing of an application for the appointment of a receiver for, the making of a general assignment for the benefit of creditors by, or before such date and such action the insolvency of, the other party; or
(iv) The other party's liquidation, dissolution, termination of existence or failure to act constitutes a breach cessation of the conduct of its business operations.
18.3 The following provisions shall survive termination of this Agreement;:
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section SECTION 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).ARTICLE IX - PROPRIETARY AND CONFIDENTIAL INFORMATION ARTICLE X - INTELLECTUAL PROPERTY RIGHTS ARTICLE XII - PROVIDING TECHNOLOGY TO JOINT PROJECTS ARTICLE XVI - BNFL REPRESENTATION ON GTSD BOARD OF DIRECTORS ARTICLE XX - PUBLIC DISCLOSURE ARTICLE XXIII - RESPONSIBILITY FOR COSTS INCURRED ARTICLE XXIV - COMPLIANCE WITH LAWS ARTICLE XXX - ARBITRATION -18-
Appears in 1 contract
Samples: Teaming Agreement (BNFL Inc)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval If any of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events (each an "Termination Event") shall occur and be continuing:
(a) any Transaction Party shall fail to make any payment or deposit required to be made by mutual written consent duly authorized by it hereunder or under any of the boards of directors of Parent Transaction Documents when due hereunder or thereunder and the Company;such failure remains unremedied for one Business Day; or
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant certification or agreement on the part of Parent or Merger Sub set forth statement made by any Transaction Party in this Agreement, any other Transaction Document to which it is a party or if in any other document delivered pursuant hereto or thereto (excluding any representation or warranty made pursuant to Section 4.01(s) of Parent this Agreement or Merger Sub set forth Section 3.1(i) of the Servicing Agreement) shall prove to have been incorrect in any material respect when made or deemed made, other than any breach of a representation relating to a Receivable that has been repurchased pursuant to Section 2.03 of the Originator Purchase Agreement; or
(c) any Transaction Party shall fail to perform or observe (i) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only), 5.01(d) or 5.01(n) of this Agreement or (ii) any other term, covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, solely in the case of this clause (ii), such failure shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time remain unremedied for ten days after a Responsible Officer of such breach Transaction Party has actual knowledge or as receives written notice thereof; or
(d) any event or condition occurs that (i) results in any Material Indebtedness becoming due prior to its scheduled maturity or (ii) enables or permits (with all applicable grace periods having expired) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the time such representation prepayment, repurchase, redemption or warranty shall have become inaccuratedefeasance thereof, prior to its scheduled maturity; provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement clause (d) shall not terminate pursuant apply to this Section 9.1(h) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such particular breach Indebtedness if such sale or inaccuracy until transfer is permitted hereunder and under the earlier documents providing for such Indebtedness; or
(e) any Event of Bankruptcy shall occur with respect to any Transaction Party; or
(if) the expiration Administrative Agent, on behalf of the Conduit Lenders and the Committed Lenders, shall, for any reason, fail or cease to have a 30 day period commencing upon delivery valid and perfected first priority security interest in the Collateral; or
(g) a Collection Agent Default shall occur; or
(h) any Change of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement Control shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective)occur; andor
(i) by Parentthere shall have occurred since December 31, upon 2003 any event or condition which has had or could reasonably be expected to have a breach material adverse effect on (A) the validity, enforceability or collectibility of the Receivables taken as a whole or (B) the ability of any representationTransaction Party to perform its obligations under the Transaction Documents; or
(j) the Percentage Factor exceeds the Maximum Percentage Factor, warrantyas determined by reference to the most recent Portfolio Report delivered under the Servicing Agreement, covenant and such circumstance remains unremedied for three consecutive Business Days; or
(k) the average Dilution Ratio for any three consecutive Calculation Periods exceeds (i) in the case of any such period that includes sales from the month of July (for the avoidance of doubt such periods include the August, September and October Calculation Periods) or agreement December (for the avoidance of doubt such periods include January, February and March Calculation Periods), 5.0% or (ii) in the case of any other period, 4.80%; provided that the existence of such circumstance shall not constitute a "Termination Event" hereunder if (x) the last such Calculation Period ends on or before the part date on which the initial public offering of the Company set forth in this Agreement, or if any representation or warranty shares of the Company set forth in this Agreement common stock of TRW Automotive Holdings Corp. is consummated and (y) no Loans shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied been outstanding as of the time last day of such breach Calculation Period or as at any time thereafter until the first Monthly Reporting Date on which the Funding Agents receive a Monthly Report demonstrating that such circumstance no longer exists; or
(l) the average Default Ratio for any three consecutive Calculation Periods exceeds 1.30%; or
(m) the average Delinquency Ratio for any three consecutive Calculation Periods exceeds 4.30%; or
(n) any Transaction Party receives notice or becomes aware that a notice of lien has been filed against any Transaction Party under Section 412(n) of the time such representation IRC or warranty shall have become inaccurate, provided that if such inaccuracy in 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 Company’s representations and warranties IRC or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i302(f) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).ERISA applies; or
Appears in 1 contract
Samples: Receivables Loan Agreement (TRW Automotive Holdings Corp)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by of Parent, the boards of directors of Parent Purchaser and the CompanySeller;
(b) by either Parent and the Purchaser or the Company Seller if the Merger Transactions shall not have been consummated by August 15June 30, 20072003 (the “Termination Date”); provided, however, that the right a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(b) shall not be available to any party whose action or if the failure to act has been consummate the Transactions by the Termination Date is attributable to a principal cause failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementClosing Date;
(c) by either Parent and the Purchaser or the Company Seller if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable non-appealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the MergerTransactions;
(d) by either Parent or and the Company Purchaser if a Triggering Event shall have occurred;
(e) by Parent and the Purchaser if (i) any of the Company Stockholders’ Meeting Seller’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 (including as if made on such subsequent date), such that the condition set forth in Section 7.1 hereof would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any adjournments and postponements thereofsubsequent date, any update of or modification to the Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), or (ii) any of the Seller’s covenants contained in this Agreement shall have been held and completed and breached in any material respect such that the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall condition set forth in Section 7.2 hereof would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right Seller’s representations and warranties as of a date subsequent to terminate the date of this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused or a breach of a covenant by the action or failure to act of the Company and such action or failure to act constitutes a material breach Seller is curable by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger Seller and the issuance of Seller is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent Common Stock in and the Merger shall Purchaser may not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action on account of such inaccuracy or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;breach; or
(f) by the Company Seller if (at i) any time prior to the approval of the issuance representations and warranties of Parent Common Stock and the Purchaser contained in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event this Agreement shall have occurred;
(g) by Parent (at any time prior to the approval be inaccurate as of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach date of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 8.1 hereof would not be satisfied, or (ii) if any representation or warranty of the covenants of Parent or Merger Sub set forth and the Purchaser contained in this Agreement shall have become inaccurate, in either case been breached such that the conditions condition set forth in Section 8.1 or Section 8.2 hereof would not be satisfied as satisfied; provided, however, that if an inaccuracy in any of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties of Parent and the Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent or Merger Sub the Purchaser is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy Purchaser and (ii) Parent or Merger Sub (as applicable) ceasing the Purchaser is continuing to exercise commercially all reasonable efforts to cure such breach (it being understood that inaccuracy or breach, then the Seller may not terminate this Agreement shall not terminate pursuant to under this Section 9.1(h9.1(f) as a result on account of such particular breach inaccuracy or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)breach.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company Company, if any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of the Merger shall not have been consummated by August 15, 2007become final and nonappealable; provided, however, that the right party seeking to terminate this Agreement under pursuant to this Section 9.1(b) shall not be available must have used all reasonable efforts to remove any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementOrder;
(c) by either Parent or if, within ten business days of the date of execution of this Agreement the Required Company if a court of competent jurisdiction or other Governmental Body Shareholder Approval shall not 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 the Mergerbeen obtained;
(d) by either Parent or if any of the Company if (i) the Company Stockholders’ Meeting (including any adjournments Company’s representations and postponements thereof) warranties contained in this Agreement shall have been held and completed and materially inaccurate as of the date of this Agreement or shall have become materially inaccurate as of any subsequent date (as if made on such subsequent date), or if any of the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) covenants contained in this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at breached in any adjournment or postponement thereof) by the Required Company Stockholder Approvalmaterial respect; provided, however, that the right to Parent may not terminate this Agreement under this Section 9.1(d) shall not be available to on account of an inaccuracy in the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action Company’s representations and warranties or failure to act on account of the Company and such action or failure to act constitutes a material breach of a covenant by the Company if such inaccuracy or breach is curable by the Company unless the Company fails to cure such inaccuracy or breach within 5 days after receiving written notice from Parent of this Agreementsuch inaccuracy or breach;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments of Parent’s or Merger Sub’s representations and postponements thereof) warranties contained in this Agreement shall have been held and completed and materially inaccurate as of the date of this Agreement or shall have become materially inaccurate as of any subsequent date (as if made on such subsequent date), or if any of Parent’s stockholders or Merger Sub’s covenants contained in this Agreement shall have taken a final vote on the issuance of shares of Parent Common Stock been breached in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalmaterial respect; provided, however, that the right to Company may not terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act on account of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such an inaccuracy in Parent’s or Merger Sub’s representations and warranties or on account of a breach of a covenant by Parent or Merger Sub if such inaccuracy or breach is curable by unless Parent or Merger Sub, then this Agreement shall not terminate pursuant Sub fails to this Section 9.1(h) as a result of cure such particular inaccuracy or breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of within 5 days after receiving written notice from the Company to Parent of such breach inaccuracy or inaccuracy and breach; or
(iif) by Parent or Merger Sub the Company if the Closing has not taken place on or before January 31, 2008 (as applicablethe “Termination Date”) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) other than as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement failure on the part of the Company party attempting to terminate this Agreement (or, if Parent is attempting to terminate this Agreement, any failure on the part of Merger Sub) to comply with or perform any of its covenant or obligation set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Merger Agreement (Volcano CORP)
Termination Events. This Agreement may be terminated prior and the Company may be dissolved, subject to Section 9.7, upon the Effective Time (whether before or after adoption occurrence of this Agreement by the Company’s stockholders and whether before or after approval any of the issuance of Parent Common Stock in the Merger by Parent’s stockholdersfollowing events (collectively, unless otherwise specified below"Termination Events"):
(a) by mutual written consent duly authorized by the boards Board unanimously votes for the termination of directors of Parent and the CompanyAgreement pursuant to Section 4.4;
(b) by either Parent or Shareholder in the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right event of a Deadlock pursuant to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement4.5;
(c) by either Parent MSK, upon a material violation or breach by Sequana of a material provision of this Agreement, the Sequana License Agreement or the Company if Sequana Services Agreement and such violation or breach has not been waived by MSK and such breach remains uncorrected for a court period of competent jurisdiction or other Governmental Body shall have issued ninety (90) days after receipt by Sequana of a final written 31 notice specifying the provision that has been breached and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerdetails surrounding such breach;
(d) by either Parent Sequana, upon a material violation or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken breach by MSK of a final vote on a proposal to adopt material provision of this Agreement, and (ii) this the MSK License Agreement shall not have been adopted at or the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this MSK Services Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action violation or failure to act constitutes breach has not been waived by Sequana; and such breach remains uncorrected for a material breach period of ninety (90) days after receipt by MSK of a written notice specifying the Company of this Agreementprovision that has been breached and the details surrounding such breach;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock MSK, in the Merger and the issuance event of Parent Common Stock a Sequana Change of Control which results in the Merger a Person controlling Sequana that has not been approved by MSK; provided that MSK's approval of such Person shall not have been approved at the Parent Stockholders’ Meeting (be unreasonably withheld or delayed and provided further that MSK shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right be entitled to terminate this Agreement under pursuant to this Section 9.1(eclause (e) shall not be available to Parent where in the failure to obtain event that the Required Parent Stockholder Approval shall have been caused Person controlling Sequana following a Sequana Change of Control is engaged in the health care or pharmaceutical business unless MSK, in its reasonable judgment believes that an affiliation by the action MSK with such Person would jeopardize MSK's scientific or failure to act of Parent and such action ethical principles, MSK's not-for-profit charter or failure to act constitutes a material breach by Parent of this AgreementMSK's relationships with regulatory agencies;
(f) by MSK upon the Company (at any time prior to the approval occurrence of the issuance an Insolvency Event of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredSequana;
(g) by Parent (at any time prior to Sequana upon the approval occurrence of the Merger by the Required Company Stockholder Approval) if a Company Triggering an Insolvency Event shall have occurredof MSK;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurateeither Shareholder, in either case such the event that (a) the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of Company has expended (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy Initial Contributions and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate any required investments by the Shareholders pursuant to this Section 9.1(h3.3(a) as a result of such particular breach or inaccuracy hereof and (iii) additional investments from each Shareholder, if such breach by Parent or Merger Sub is cured prior any, required pursuant to such termination becoming effective)Section 3.3(b) hereof and (b) the Scientific Advisory Committee has certified to the Board that no gene discovery has been made; and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on either Shareholder in the part event of the Company set forth in this Agreement, or if any representation or warranty termination of the Company set forth Sequana License Agreement or the MSK License Agreement in this Agreement shall have become inaccurate, in either case such that accordance with the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)terms thereof.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company Company, if any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of the Merger shall not have been consummated by August 15, 2007become final and nonappealable; provided, however, that the right party seeking to terminate this Agreement under pursuant to this Section 9.1(b8.1(b) shall not be available must have used all reasonable efforts to remove any party whose action or failure such Order without agreeing to act has been a principal cause the imposition of any Burdensome Condition prior to the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementTermination Date;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Shareholders Meeting (including any adjournments and postponements adjournment or postponement thereof) shall have been duly held and completed and the Company’s stockholders Company shareholders shall have taken a final vote on a proposal to approve and adopt the Merger, this Agreement, Agreement and the Escrow Agreement and (ii) the Merger, this Agreement and the Escrow Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) approved by the Required Company Stockholder ApprovalShareholder Vote; provided, however, that the right Company shall not be permitted to terminate this Agreement pursuant to this Section 8.1(c) if the failure of the Company shareholders to adopt and approve the Merger, this Agreement and the Escrow Agreement is attributable to a failure on the part of the Company to perform its obligations under this Agreement;
(d) by Parent if any of the Company'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) such that the condition set forth in Section 6.1 would not be satisfied, or if any of the Company's covenants contained in this Agreement shall have been breached in any material respect; provided, however, that Parent may not terminate this Agreement under this Section 9.1(d8.1(d) shall not be available to on account of an inaccuracy in the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action Company's representations and warranties or failure to act on account of the Company and such action or failure to act constitutes a material breach of a covenant by the Company if such inaccuracy or breach is curable by the Company unless the Company fails to cure such inaccuracy or breach within 15 days after receiving written notice from Parent of this Agreementsuch inaccuracy or breach;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments of Parent's representations and postponements thereof) warranties contained in this Agreement shall have been held and completed and Parent’s stockholders inaccurate as of the date of this Agreement or shall have taken a final vote become inaccurate as of any subsequent date (as if made on such subsequent date) such that the issuance condition set forth in Section 7.1 would not be satisfied, or if any of shares of Parent Common Stock Parent's covenants contained in the Merger and the issuance of Parent Common Stock in the Merger this Agreement shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at breached in any adjournment or postponement thereof) by the Required Parent Stockholder Approvalmaterial respect; provided, however, that the right to Company may not terminate this Agreement under this Section 9.1(e8.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action on account of an inaccuracy in Parent's representations and warranties or failure to act on account of Parent and such action or failure to act constitutes a material breach of a covenant by Parent if such inaccuracy or breach is curable unless Parent fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Company of this Agreementsuch inaccuracy or breach;
(f) by Parent or the Company if the Closing has not taken place on or before July 31, 2002 (at the "Termination Date") (other than as a result of any time prior to failure on the approval part of the issuance terminating party to comply with or perform any of Parent Common Stock its covenant or obligation set forth in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredthis Agreement);
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;; or
(h) by Parent if the Company, upon a breach of any representation, warranty, covenant or agreement average closing sales price for Parent Common Stock on the part of Parent or Merger Sub set forth New York Stock Exchange Composite Transaction Tape (as reported in this AgreementThe Wall Street Journal, or, if not reported therein, any other authoritative source) for any (5) trading-day period ending on, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurateimmediately after, in either case such that the conditions date on which the condition set forth in Section 8.1 or Section 8.2 would not be 6.3 has been satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)below $18.
Appears in 1 contract
Samples: Merger Agreement (Titan Corp)
Termination Events. This Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated prior to and the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):transactions contemplated herein may be abandoned:
(a) by mutual written consent duly authorized by of the boards of directors of Parent and the CompanyParties;
(b) after the date that is three (3) months following the date hereof (the “Outside Date”), by either Parent or Party by notice to the Company other Party if the Merger Closing shall not have been consummated by August 15, 2007on or prior to the Outside Date; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party either Party whose action failure or whose Affiliate’s failure to act perform in all material respects any of its obligations under this Agreement has been a principal the cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreementdate;
(c) by either Parent or Party by notice to the Company other Party, if (i) a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable final, non-appealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, ruling enjoining or otherwise prohibiting consummation of the Mergertransactions contemplated by this Agreement to occur on the Closing Date has been issued by any federal or state court in the United States having jurisdiction (unless such order, decree or ruling has been withdrawn, reversed or otherwise made inapplicable) or (ii) any U.S. federal or state Law has been enacted that would make the consummation of the transactions contemplated by this Agreement to occur on the Closing Date illegal;
(d) by either Parent or the Company Buyer, if (i) any representation or warranty of Seller contained in this Agreement shall be inaccurate such that the Company Stockholders’ Meeting condition set forth in Section 7.3(a) would not be satisfied, or (including any adjournments and postponements thereofii) the covenants or obligations of Seller contained in this Agreement shall have been held and completed and breached in any material respect such that the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (iicondition set forth in Section 7.3(c) this Agreement shall would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy or breach is curable by Seller during the right 15-day period after Buyer notifies Seller in writing of the existence of such inaccuracy or breach (the “Seller Cure Period”) relating to such inaccuracy or breach, then Buyer may not terminate this Agreement under this Section 9.1(d) shall not be available as a result of such inaccuracy or breach prior to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act expiration of the Company and Seller Cure Period unless Seller is no longer continuing to exercise commercially reasonable efforts to cure such action inaccuracy or failure to act constitutes a material breach by the Company of this Agreement;breach; or
(e) by either Parent Seller, if (i) any representation or warranty of Buyer contained in this Agreement shall be inaccurate such that the Company if condition set forth in Section 7.2(a) would not be satisfied, or (ii) the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) covenants or obligations of Buyer contained in this Agreement shall have been held and completed and Parent’s stockholders shall have taken a final vote on breached in any material respect such that the issuance of shares of Parent Common Stock condition set forth in the Merger and the issuance of Parent Common Stock in the Merger shall Section 7.2(b) would not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy or breach is curable by Buyer during the right to 15-day period after Seller notifies Buyer in writing of the existence of such inaccuracy or breach (the “Buyer Cure Period”), then Seller may not terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing Buyer Cure Period unless Buyer is no longer continuing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach inaccuracy or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)breach.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval If any of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events (each a “Termination Event”) shall occur and be continuing:
(a) any Transaction Party shall fail to make any payment or deposit required to be made by mutual written consent duly authorized it hereunder in respect of Capital when due; or any Transaction Party shall fail to make any other payment or deposit required to be made by it hereunder or under any of the boards of directors of Parent Transaction Documents when due hereunder or thereunder and the Company;such failure shall remain unremedied for one Business Day; or
(b) any representation, warranty, certification or statement made by either Parent any Transaction Party 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 (or, to the extent any such representation or warranty is qualified by materiality or Material Adverse Effect, such representation or warranty shall prove to have been incorrect in any respect subject only to the materiality or Material Adverse Effect qualification set forth therein) when made or deemed made; or
(c) any Transaction Party shall fail to perform or observe (A) any term, covenant or agreement contained in Section 5.01(a) (as to maintenance of existence only), 5.01(d), 5.01(j)(iv), 5.01(n) or 5.01(v) of this Agreement or Section 5.01(a) (as to maintenance of existence only), 5.01(d) or 5.01(l)(iv) of the Originator Purchase Agreement or (B) any other term, covenant or agreement contained in this Agreement or any other Transaction Document on its part to be performed or observed and, solely in the case of this clause (B), such failure shall remain unremedied for ten (10) days after such Transaction Party has knowledge or receives notice thereof; or
(d) (i) any Transaction Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable; or (ii) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity, other than at the election of the Originator or any Subsidiary, or that, subject to any applicable grace period, enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided, however, that this clause (d)(ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or
(e) any Event of Bankruptcy shall occur with respect to any Transaction Party; or
(f) the Administrative Agent, on behalf of the Purchasers, shall, for any reason, fail or cease to have a valid and perfected first priority security interest in the Receivables and Related Security and Collections with respect thereto or there shall exist any Adverse Claims (except as created in favor of the Seller pursuant to the Originator Purchase Agreement or in favor of the Administrative Agent and the Purchasers pursuant to this Agreement) on the Receivables or the Company if Related Security or Collections with respect thereto; or
(g) any Change of Control shall occur or the Merger Originator shall cease to own directly 100% of the issued and outstanding Equity Interests of the Seller; or
(h) there shall have occurred since the Initial Closing Date any event or condition which has had or could reasonably be expected to have a material adverse effect on (A) the ability of any Transaction Party to perform its obligations under the Transaction Documents or (B) the collectibility of the Receivables; or
(i) the Receivable Interest Percentage exceeds the Maximum Receivable Interest Percentage unless, within two Business Days of obtaining notice or knowledge thereof, the Seller reduces the Capital from previously received Collections or other funds available to the Seller so as to reduce the Receivable Interest Percentage to less than or equal to the Maximum Receivable Interest Percentage; or
(j) the average of the Dilution Ratios for any three consecutive Calculation Periods exceeds 4.50%; or
(k) the average of the Default Ratios for any three consecutive Calculation Periods exceeds 3.25%; or
(l) the average of the Delinquency Ratios for any three consecutive Calculation Periods exceeds 3.00%; or
(m) the average of the Loss-to-Liquidation Ratios for any twelve consecutive Calculation Periods exceeds 1.00%; or
(n) the average of the Portfolio Turnover Rates for any three consecutive Calculation Periods exceeds 8; or
(o) any Transaction Party receives notice or becomes aware that (i) a notice of federal tax lien has been filed against any Transaction Party or (ii) a notice of lien has been filed against any Transaction Party under Section 412(n) of the IRC 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 IRC or Section 302(f) of ERISA applies; or
(p) a “Termination Event” shall occur under (and as defined in) the Originator Purchase Agreement; or
(q) one or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 or, in the case of the Seller, in an aggregate amount in excess of $25,000 (except in each case to the extent covered by insurance or other right of reimbursement or indemnification), or which have or would reasonably be expected to have a Material Adverse Effect, shall be rendered against the Originator, the Seller, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed or bonded pending appeal; or
(r) any of this Agreement or the Originator Purchase Agreement shall cease, for any reason, to be in full force and effect, or any Transaction Party shall so assert in writing or any Transaction Party shall otherwise seek to terminate or disaffirm its obligations under any such Transaction Document; or
(s) any Financial Covenant Default shall occur; or
(t) an ERISA Event shall have been consummated by August 15occurred and shall be outstanding that, 2007when taken together with all other ERISA Events that have occurred and are then outstanding, would reasonably be expected to result in liability of the Originator and its Subsidiaries in an aggregate amount exceeding $25,000,000, individually or in the aggregate; then, and in any such event, the Administrative Agent may, in its discretion, and shall, at the direction of any Managing Agent or the Majority Committed Purchasers, declare the Termination Date to have occurred upon notice to the Seller (in which case the Termination Date shall be deemed to have occurred); provided, however, that the right to terminate this Agreement under this Section 9.1(b) Termination Date shall not be available occur automatically upon the occurrence of any Event of Bankruptcy with respect to any party whose action Transaction Party without any requirement for the giving of notice. Upon any such declaration or failure to act has been a principal cause of upon such automatic occurrence, the failure of Purchasers, the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed Managing Agents and the Company’s stockholders Administrative Agent shall have, in addition to the rights and remedies which they may have taken a final vote on a proposal to adopt under this Agreement, all other rights and (ii) this Agreement remedies provided after default under the UCC and under other applicable law, which rights and remedies shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)cumulative.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Medco Health Solutions Inc)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company Company, if any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of the Merger shall not have been consummated by August 15, 2007become final and nonappealable; provided, however, that the right party seeking to terminate this Agreement under pursuant to this Section 9.1(b) shall not be available must have used all reasonable efforts to remove any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementOrder;
(c) by either Parent or if (i) any of the Company if a court Company's representations and warranties contained in Section 2 shall be inaccurate as of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingthe date of this Agreement, or shall have taken any other action, having become inaccurate as of a date subsequent to the effect date of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; providedas if made on such subsequent date), however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions condition set forth in Section 8.1 6.1 would not be satisfied as of the time such representation or warranty shall have become inaccurate (assuming the Closing Date were as of such time), or (ii) any of the Company's covenants contained in Sections 4 or 5 shall have been breached such that the condition set forth in Section 8.2 6.2 would not be satisfied as of the time of such breach (assuming the Closing Date were as of such time); provided, however, that if an inaccuracy in any of the Company's representations and warranties 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 and the Company is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement under this Section 9.1(c) on account of such inaccuracy or breach until thirty (30) days subsequent to the date of such inaccuracy or breach;
(d) by the Company if (i) any of Parent's representations and warranties contained in Section 3 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 (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) inaccurate (assuming the Closing Date were as a result of such particular breach time), or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure if any of Parent's covenants contained in Section 5 shall have been breached such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company condition set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as (assuming the Closing Date were of the time such representation or warranty shall have become inaccuratetime); provided, provided however, that if such an inaccuracy in the Company’s any of Parent's representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company Parent is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing Parent is continuing to exercise commercially all reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach inaccuracy or inaccuracy if such breach by breach, then the Company is cured prior to such termination becoming effective).may not
Appears in 1 contract
Samples: Merger Agreement (Microtune Inc)
Termination Events. This Subject to the provisions of Section 10.2, this Agreement may be terminated may, by written notice given at or prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock Closing in the Merger by Parent’s stockholdersmanner hereinafter provided, unless otherwise specified below):be terminated and abandoned:
(a) by mutual written consent duly authorized By either Seller or Purchaser if a material default or breach shall be made by the boards other party with respect to the due and timely performance of directors any of Parent its covenants and agreements contained herein, or with respect to the Companydue compliance with any of the representations and warranties contained in Article V or VI, as the case may be, and such default cannot be cured and has not been waived;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause By written mutual consent of the failure of the Merger to occur on or before such date Seller and such action or failure to act constitutes a breach of this AgreementPurchaser;
(c) By either Seller or Purchaser if the Closing shall not have occurred, other than through failure of such party to fulfill its obligations hereunder, on or before November 30, 1996 or such later date as may be agreed upon by either Parent or the Company 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 the Mergerparties;
(d) by either Parent or By Purchaser, if the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement conditions set forth in Article III hereof shall not have been adopted at met (or shall not, in the Company Stockholders’ Meeting (reasonable judgment of Purchaser, be capable of being met), and Seller, if the conditions set forth in Article IV hereof shall not have been adopted at any adjournment met (or postponement thereof) shall not, in the reasonable judgment of Seller, be capable of being met), in each case by the Required Company Stockholder Approval; providedNovember 30, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement1996;
(e) by either Parent By Purchaser if (i) Seller gives notice to Purchaser that it will not or cannot remove any Title Exception and (ii) within ten (10) business days after the Company if date such notice is given Purchaser does not waive the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalrequirement that Seller remove such Title Exception; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(f) by By Purchaser if Seller amends or supplements any Schedule hereto in accordance with Section 7.5 hereof and such amendment or supplement constitutes, individually or in the Company (at any time prior aggregate with other amendments or supplements to the approval Schedules, a material adverse change in the condition or operations of the issuance of Parent Common Stock in Assets or the Merger by Business after the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)date hereof.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time Closing (whether before or after the adoption and approval of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by the mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company Company, if the Merger shall Closing has not have been consummated by August 15taken place on or before 5:00 p.m. (Pacific time) on the date that is [***] months following the Agreement Date (as such date may be extended in accordance with the provisos of this Section 9.1(b), 2007the “End Date”); provided, however, that (i) neither Parent nor the right Company shall be permitted to terminate this Agreement under pursuant to this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal if the proximate cause of the failure to consummate the Mergers by the End Date (as the same may be extended) is a breach by such party of any of its representations, warranties, covenants or agreements contained herein, (ii) the End Date shall automatically be extended commensurate with any extension of the Merger Closing Date pursuant to occur the proviso in Section 1.3(a), and (iii) if on the date that is [***] months following the Agreement Date, all of the conditions to Closing set forth in Articles 7 and 8 have been satisfied or before such waived in writing, other than (x) conditions that by their nature are only to be satisfied as of the Closing, which are capable of being satisfied, and (y) any of the conditions to Closing set forth in Sections 7.3, 7.8 (solely if the Order, Legal Requirement or other restraint arises under Legal Requirements pertaining to antitrust), 7.9 (solely if the Legal Proceeding arises under Legal Requirements pertaining to antitrust), 8.3 or 8.6 (solely if the Order, Legal Requirement or other restraint arises under Legal Requirements pertaining to antitrust), then the End Date shall be automatically extended to the date and such action or failure to act constitutes a breach of this Agreementthat is [***] months following the Agreement Date;
(c) by either Parent or the Company if if: (i) a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingOrder, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the MergerMergers; or (ii) there shall be any applicable Legal Requirement enacted, promulgated, issued or deemed applicable to the Mergers by any Governmental Body that would make consummation of the Mergers illegal;
(d) by either Parent or the Company if if: (i) any of the representations and warranties of the Company Stockholders’ Meeting contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 7.1 would not be satisfied; (including ii) any adjournments and postponements thereof) of the covenants of the Company contained in this Agreement shall have been held and completed and breached such that the Company’s stockholders condition set forth in Section 7.2 would not be satisfied; or (iii) any Material Adverse Effect shall have taken 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 final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder ApprovalMaterial Adverse Effect; provided, however, that 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 Agreement Date or a breach of a covenant by the Company is curable by the Company through the use of reasonable efforts within [***] Business 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 9.1(d) shall not be available as a result of such inaccuracy or breach prior to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act expiration of the Company and such action or failure to act constitutes a material breach by 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 this Agreementthe Company Cure Period);
(e) by either Parent or the Company if: (i) any of Parent’s representations and warranties contained in this Agreement shall be inaccurate as of the Agreement Date, or shall have become inaccurate as of a date subsequent to the Agreement Date, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) of Parent’s covenants contained in this Agreement shall have been held and completed and Parent’s stockholders shall have taken a final vote on breached such that the issuance of shares of Parent Common Stock condition set forth in the Merger and the issuance of Parent Common Stock in the Merger shall Section 8.2 would not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of Parent’s representations and warranties as of a date subsequent to the right to Agreement Date or a breach of a covenant by Parent is curable by Parent through the use of reasonable efforts within [***] Business 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) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Cure Period, provided Parent, during the Parent or Merger Sub (as applicable) ceasing Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement shall not terminate pursuant to this Section 9.1(h9.1(e) as a result of with respect to such particular inaccuracy or breach or inaccuracy if such inaccuracy or breach by Parent or Merger Sub is cured prior to such termination becoming effectivethe expiration of the Parent Cure Period); andor
(f) by Parent if (i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, Required Merger Stockholder Votes are not obtained or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) this Agreement and the Mergers have not been duly adopted and approved by at least [***]% of the outstanding shares of Company Capital Stock (with the Company ceasing Preferred Stock voting on an as-converted to exercise commercially reasonable efforts to cure such breach (it being understood that Company Common Stock basis), in each case within three hours after the execution of this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Agreement.
Appears in 1 contract
Samples: Merger Agreement (Splunk Inc)
Termination Events. This Agreement may be terminated prior to the Effective Time Closing (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
Required Company Stockholder Vote): (a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
; (b) by either Parent or the Company if the Merger I shall not have been consummated by August 15February 28, 2007; provided, however, that 2003 (the right “Termination Date”) (unless the failure to consummate Merger I is primarily caused by a failure on the part of the party seeking to terminate this Agreement under this Section 9.1(b) shall not to perform any material obligation required to be available performed by such party at or prior to any party whose action or failure to act has been a principal cause the Effective Time of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
I); (c) by either Parent or the Company 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 the either Merger;
; (d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, Agreement and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder ApprovalVote; provided, however, that the right a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(d) shall not be available to the Company where if the failure to obtain have this Agreement adopted by the Required Company Stockholder Approval shall have been caused by the action or Vote is attributable to a failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance part of shares of Parent Common Stock such party to perform any covenant in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not required to be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused performed by the action such party at or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval Effective Time of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
I; (ge) by Parent (at any time prior to the approval adoption of the Merger this Agreement by the Required Company Stockholder ApprovalVote) if a Company Triggering Event shall have occurred;
; (hf) by Parent if (i) any of the Company, upon a breach ’s representations and warranties contained in this Agreement shall be inaccurate as of any representation, warranty, covenant or agreement on the part date of Parent or Merger Sub set forth in this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if any representation or warranty made on such subsequent date) except for those representations and warranties that address matters only as of Parent or Merger Sub a particular date (which representations and warranties shall have been accurate as of such date), such that the condition set forth in Section 7.1 would not be satisfied or (ii) any of the Company’s covenants contained in this Agreement shall have become inaccurate, in either case been breached such that the conditions condition set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccuratesatisfied; provided, provided however, that if such inaccuracy in the Company’s representations and warranties or a breach of a covenant by the Company is curable by the Company through the exercise of commercially reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement shall not terminate pursuant to under this Section 9.1(i9.1(f) as a result on account of such particular inaccuracy or breach or inaccuracy until the earlier of (iA) the expiration of a 30 fourteen (14) day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (iiB) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i9.1(f) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).; or
Appears in 1 contract
Samples: Merger Agreement
Termination Events. (a) For purposes of this Article X, T-Mobile and Purchaser will be treated as a single Party and Cingular and SBCW will be treated as a single Party. This Agreement may be terminated by any Party ("TERMINATING PARTY") hereto at any time prior to Closing, upon written notice to the Effective Time other Party hereto (whether before "OTHER PARTY"), upon the occurrence of any of the following events:
(i) the Bankruptcy of T-Mobile or after adoption of any entity that, directly or indirectly Controls T-Mobile or Purchaser (in which case this Agreement may be terminated by Cingular or SBCW) or the Company’s stockholders and whether before Bankruptcy of Cingular or after approval of the issuance of Parent Common Stock any entity that directly or indirectly Controls Cingular or SBCW (in the Merger which case this Agreement may be terminated by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the CompanyT-Mobile or Purchaser);
(bii) the Other Party shall materially breach any of its representations, warranties or covenants contained in this Agreement and (i) such breach shall not be capable of being remedied within sixty (60) days after the occurrence of such breach or (ii) a written notice specifying the nature of such breach and requesting that it be remedied is given by either Parent or the Company if Terminating Party to the Merger Other Party and such breach shall not have been consummated by August 15remedied within sixty (60) days after the occurrence of such breach, 2007; provided, however, except that the T-Mobile shall have no right of termination with regard to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementCingular's or SBCW's representations, warranties and covenants where such breach(es) can be cured or satisfied by a claim for damages or other action to be reasonably taken by SBCW or Cingular following the Closing, pursuant to Section 7.2 or 7.6 hereof;
(ciii) by either Parent or the Company if a court any consent of competent jurisdiction or other any Governmental Body required for consummation of the transactions contemplated hereby shall have issued a been denied by final action of such Governmental Body that is either nonappealable or which has not been appealed within the time limit for appeal; CINGULAR WIRELESS LLC EXHIBITS - Interest Purchase Agreement by and nonappealable orderamong T-Mobile USA, decree Inc., Omnipoint Communications, Inc., Cingular Wireless LLC and SBC Wireless LLC dated as of May 24, 2004. EXHIBIT 10.66
(iv) any Law or ruling, or shall have taken any other action, having the effect of Order permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) consummation of the transactions contemplated by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at or any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement Ancillary Agreements shall have become inaccurate, in either case such that final and nonappealable; or
(v) the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as termination of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or AWE Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Interest Purchase Agreement (Cingular Wireless LLC)
Termination Events. This Agreement may be terminated by (i) the mutual consent of the Plan Proponents and each of the Requisite Consenting Noteholders or (ii) either of the Plan Proponents or either of the Requisite Consenting Noteholders upon two (2) business days prior written notice delivered to the Effective Time (whether before or after adoption other Parties upon the occurrence of this Agreement by the Company’s stockholders and whether before or after approval any of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
following events (a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007each a “Termination Event”); provided, however, that the right to terminate this Agreement under this Section 9.1(bmay be terminated solely (i) shall not be available to any party whose action by the Committee or failure to act has been a principal cause either of the failure Requisite Consenting Noteholders upon the occurrence of the Merger Termination Events set forth in clauses (a), (e), (h)-(m) below and (ii) by either of the Requisite Consenting Noteholders upon the occurrence of the Termination Event set forth in clause (f) below:
(a) the public announcement by the Company of its intention not to occur on pursue the Restructuring or before such date and such action the Company’s acceptance of an Alternative Transaction;
(b) following the delivery of written notice thereof by a non-breaching Party, the occurrence of a material breach by any of the Parties of any of its obligations, representations, warranties, covenants or failure to act constitutes a breach of commitments set forth in this Agreement, any agreement relating to the Rights Offering, including but not limited to, the Backstop Commitment Agreement, that is either unable to be cured or is not cured within five (5) business days following the delivery of such notice;
(c) the issuance by either Parent or the Company if a any court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree competent governmental or ruling, or shall have taken any other action, having the effect regulatory authority of permanently restraining, enjoining an order making illegal or otherwise restricting, preventing or prohibiting the MergerRestructuring or causing a material adverse effect on the economics terms of the Restructuring, taken as a whole, in each case, in a manner that cannot reasonably be remedied by the Company;
(d) the appointment in the Bankruptcy Cases of a trustee or receiver (but not the Independent Director), the conversion of the Bankruptcy Cases to cases under chapter 7 of the Bankruptcy Code, or the dismissal of the Bankruptcy Cases by order of the Bankruptcy Court;
(e) the Debtors’ entry into any postpetition financing agreement or exit financing agreement in form and substance not reasonably acceptable to the Committee and each of the Requisite Consenting Noteholders;
(f) the entry into any agreement relating to the financing of the Debtor’s operating subsidiaries, including, without limitation, amendments to local financing agreements, including the Local Credit Agreements and any Subsequent CDB Amendments (if applicable), in form and substance not reasonably acceptable to each of the Requisite Consenting Noteholders; provided that the CDB Amendments shall be deemed reasonably acceptable to each of the Requisite Consenting Noteholders as of December 18, 2014 in the absence of the prior delivery to the Company by either Parent or of the Company if Requisite Consenting Noteholders of any written objection thereto;
(g) the issuance by the Bankruptcy Court of an order terminating the Debtors’ exclusive right to file a plan of reorganization pursuant to Bankruptcy Code section 1121;
(h) the failure of the Plan Proponents to have filed the PSA Motion, the Disclosure Statement, the Plan and the motion(s) to approve the Disclosure Statement and the Backstop Commitment Agreement with the Bankruptcy Court by December 18, 2014;
(i) the Company Stockholders’ Meeting failure of the Bankruptcy Court to have entered the PSA Order, an order approving the Disclosure Statement and an order approving the Backstop Commitment Agreement by January 30, 2015;
(including j) the failure of the Bankruptcy Court to have convened a hearing on the confirmation of the Plan on or before March 26, 2015;
(k) the failure of the Bankruptcy Court to have entered the Confirmation Order on or before April 8, 2015;
(l) the failure of the Plan Effective Date to have occurred by April 22, 2015;
(m) the Plan or Disclosure Statement is amended or modified in any adjournments manner that is materially adverse to either of the Requisite Consenting Noteholders and postponements thereofis not otherwise reasonably acceptable to the Committee and each of the Requisite Consenting Noteholders;
(n) shall have been held any of the orders approving this Agreement, the Backstop Commitment Agreement, the Disclosure Statement, the Rights Offering Procedures, or the Confirmation Order is reversed, stayed, dismissed, vacated, reconsidered or is materially modified or materially amended after entry in a manner that is not reasonably acceptable to the Plan Proponents and completed each of the Required Consenting Noteholders;
(o) the determination by either of the Plan Proponents or either of the Requisite Consenting Noteholders to terminate this Agreement and the Plan Term Sheet, if the Independent Director determines not to join or approve the Settlement (to the extent the appointment of the Independent Director is deemed necessary); or
(p) the determination by the Company’s stockholders shall have taken a final vote on board of directors (the “Board”) that (i) proceeding with the transactions contemplated by this Agreement would be inconsistent with the continued exercise of its fiduciary duties, or (ii) having received a proposal or offer for an Alternative Transaction, that such Alternative Transaction is likely to adopt be more favorable than the Plan and that continued support of the Plan pursuant to this Agreement would be inconsistent with its fiduciary obligations. The Committee may withdraw from and no longer remain bound by this Agreement, and it being understood that the Agreement shall remain binding among the remaining Parties, in the event the Committee (i) determines that proceeding with the transactions contemplated by this Agreement would be inconsistent with the continued exercise of its fiduciary duties, or (ii) determines no later than the Settlement Date, having received a proposal or offer for an Alternative Transaction, that such Alternative Transaction is likely to be more favorable than the Plan for unsecured creditors and that continued support of the Plan pursuant to this Agreement would be inconsistent with its fiduciary obligations. No Party may terminate this Agreement if such Party failed to perform or comply in any material respect with the terms and conditions of this Agreement, with such failure to perform or comply causing, or resulting in, the occurrence of one or more termination events specified herein. Nothing in this Section 7 shall not have been adopted at relieve any Party of liability for any breach or non-performance of this Agreement occurring prior to the Company Stockholders’ Meeting Termination Date The date on which this Agreement is terminated in accordance with the provisions of this Section 7 shall be referred to as the “Termination Date”. On the Termination Date, the provisions of this Agreement and the Plan Term Sheet shall terminate, except as otherwise provided in this Agreement, unless, within three (3) business days of such Termination Date, the Plan Proponents and each of the Requisite Consenting Noteholders waive, in writing, the occurrence of the Termination Event giving rise to the occurrence of such Termination Date. For the avoidance of doubt, each of the Parties hereby waives any requirement under section 362 of the Bankruptcy Code to lift the automatic stay thereunder for purposes of providing notice under this Agreement (and shall agrees not have been adopted at to object to any adjournment or postponement thereof) by non-breaching Party seeking, if necessary, to lift such automatic stay in connection with the Required Company Stockholder Approvalprovision of any such notice); provided, however, that nothing in this paragraph shall prejudice any Party’s rights to argue that the right to terminate this Agreement termination was not proper under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company terms of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Termination Events. This Agreement may If any of the following events (each a “Termination Event”) shall have occurred:
(i) Seller shall fail to pay any amount due pursuant to Section 9.1 hereof in accordance with the provisions thereof or to pay any other amount required to be terminated prior paid by Seller and such failure shall continue unremedied for a period of five (5) Business Days; or
(ii) Seller shall fail to the Effective Time observe or perform any covenant or agreement applicable to it contained herein (whether before or after adoption other than as specified in paragraph (i) of this Agreement by the Company’s stockholders and whether before or after approval Section 11.1); provided that, no such failure shall constitute a Termination Event under this paragraph (ii) unless such failure shall continue unremedied for a period of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):30 consecutive days; or
(aiii) any representation, warranty, certification or statement made or deemed made by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent Seller in this Agreement or the Company if the Merger in any statement, record, certificate, financial statement or other document delivered pursuant to this Agreement shall not prove to have been consummated by August 15incorrect in any material respect when made or deemed made, 2007; provided, however, provided that the right to terminate this Agreement under this Section 9.1(b) a Termination Event shall not be available deemed to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement occurred under this Section 9.1(dparagraph (iii) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, based upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 5.1919 hereof if Seller shall have complied with the provisions of Section 9.1 hereof in respect thereof; or
(A) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of Seller in an involuntary case under federal or state bankruptcy, insolvency or similar law , which decree or order is not stayed or any other similar relief shall be granted under any applicable federal or state law now or hereafter in effect and shall not be stayed; (B) (I) any involuntary case is commenced against Seller under any federal or state bankruptcy, insolvency or similar law now or hereafter in effect, a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Seller, or over all or a substantial part of the property of Seller, shall have been entered, an interim receiver, trustee or other custodian of Seller for all or a substantial part of the property of Seller is involuntarily appointed, a warrant of attachment, execution or similar process is issued against any substantial part of the property of Seller, and (II) any event referred to in clause (B)(I) above continues for 60 days unless dismissed, bonded or disclosed; (C) Seller shall at its request have a decree or an order for relief entered with respect to it or commence a voluntary case under any federal or state bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of a decree or an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such Insolvency Law, consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; (D) the making by Seller of any general assignment for the benefit of creditors; (E) the inability or failure of Seller generally to pay its debts as such debts become due; or (F) the board of directors of Seller authorizes action to approve any of the foregoing; or
(v) there shall have occurred an Event of Default set forth in Section 4.01 of the Indenture; or
(vi) a notice of Encumbrance shall have been filed by the Pension Benefit Guaranty Corporation against Seller under Section 412(n) of the Code or Section 8.2 would not be satisfied as 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 time Code or Section 302(f) of ERISA applies unless there shall have been delivered to the Indenture Trustee proof of release of such breach Encumbrance; or
(vii) any Encumbrance in an amount equal to or as greater than $500,000 has been asserted against or imposed on, any real or personal property of Seller pursuant to the time such representation Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(1), or warranty any equivalent or comparable state law, relating to or arising from the costs of, response to, or investigation, remediation or monitoring of, any environmental contamination resulting from the current or past operations of Seller; or
(viii) a Federal tax notice of Encumbrance, in an amount equal to or greater than $500,000, shall have become inaccuratebeen filed against Seller unless there shall have been delivered to the Indenture Trustee proof of release of such Encumbrance then, provided that if in the case of any Termination Event described in paragraph (iv), (v), (vi), (vii) or (viii) above the obligation of Buyer to purchase Mortgage Loans from Seller shall thereupon automatically terminate without further notice of any kind, which is hereby waived by Seller, and (B) in the case of any other Termination Event, so long as such inaccuracy in ParentTermination Event shall be continuing, Buyer or the Indenture Trustee may terminate Buyer’s or Merger Sub’s representations and warranties or breach obligation to purchase Mortgage Loans from Seller by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate written notice to Seller (any termination pursuant to this Section 9.1(h11.1 is herein called an “Early Termination”); provided that in the event of any involuntary petition or proceeding as described in paragraph (iv) as a result above, Buyer shall not purchase Mortgage Loans from Seller unless such involuntary petition or proceeding is dismissed, bonded or discharged within 60 days of the filing of such particular breach petition or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent commencement of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)proceeding.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by By the mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either By Parent if (i) any representation or warranty of the Company or the Company if the Merger Equityholders’ Representative contained in this Agreement shall not be inaccurate or shall have been consummated by August 15breached as of the date of this Agreement, 2007or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 8.02(a) would not be satisfied or (ii) any of the covenants or obligations of the Company or Equityholders contained in this Agreement shall have been breached in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of the right Company or the Equityholders’ Representative as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company or the Equityholders’ Representative is curable by the same through the use of commercially reasonable efforts during the 30-day period 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 9.1(b11.01(b) shall not be available as a result of such inaccuracy or breach prior to any party whose action or failure to act has been a principal cause the expiration of the failure of Company Cure Period, provided the Merger Company, during the Company Cure Period, continues to occur on exercise commercially reasonable efforts to cure such inaccuracy or before such date and such action or failure breach (it being understood that Parent may not terminate this Agreement pursuant to act constitutes a this Section 11.01(b) if Parent is in material breach of this AgreementAgreement or if such breach by the Company or the Equityholders’ Representative is cured such that such conditions would then be satisfied);
(c) by the Company if: (i) any representation or warranty of either Parent or the Company if a court of competent jurisdiction Merger Sub contained in this Agreement shall be inaccurate or other Governmental Body shall have issued a final and nonappealable order, decree or rulingbeen breached as of the date of this Agreement, or shall have taken become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 8.01(a) would not be satisfied; or (ii) if any other action, having the effect of permanently restraining, enjoining Parent’s or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) Merger Sub’s covenants contained in this Agreement shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at breached in any adjournment or postponement thereof) by the Required Company Stockholder Approvalmaterial respect; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action if an inaccuracy in or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in as of a date subsequent to the date of this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as a breach of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach a covenant by Parent or Merger Sub is curable by the same through the use of commercially reasonable efforts during the 30-day period after the Company notifies Parent in writing of the existence of such inaccuracy or Merger Subbreach (the “Parent Cure Period”), then the Company may not terminate this Agreement shall not terminate pursuant to under this Section 9.1(h11.01(c) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Cure Period, provided Parent or Merger Sub (as applicable) ceasing Sub, during the Parent Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach (it being understood that the Company may not terminate this Agreement shall not terminate pursuant to this Section 9.1(h11.01(c) as a result if the Company is in material breach of such particular breach this Agreement or inaccuracy if such breach by the Parent or Merger Sub is cured such that such conditions would then be satisfied);
(d) by Parent if there shall have occurred any Material Adverse Effect with respect to the Company or 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 with respect to the Company; or
(e) by either the Company, on the one hand, or Parent and Merger Sub, on the other hand, by written notice to the other Party, if the Merger shall not have been consummated on or prior to January 31, 2013, unless the failure to consummate the Merger on or prior to such termination becoming effectivedate is the result of (i) any breach of this Agreement by the Party seeking to terminate the Agreement pursuant to the terms of this Section 11.01(e); andor (ii) any objections asserted with respect to the Transactions under the HSR Act, or the institution of any suit (or the threat to institute any suit) by the FTC, the antitrust division of the DOJ or any other Governmental Authority or any third-party challenging any of the Transactions.
(if) by Parent, upon a breach if any condition contained in Section 8.02 shall become incapable of fulfillment;
(g) by the Company, if any representationcondition contained in Section 8.01 shall become incapable of fulfillment; or
(h) by Parent, warranty, covenant or agreement on if the part Requisite Stockholder Approval is not obtained and the Stockholders’ Written Consent is not delivered to Parent within one (1) Business Day after the date of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Merger Agreement (Allergan Inc)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval Any of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger following shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement constitute a "Termination Event" under this Section 9.1(b) shall not be available to Contract and any party whose action or failure to act has been Party responsible for a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Termination Event shall have occurred;
(g) by Parent (at any time prior to be a "Terminating Party" while the approval of the Merger by the Required Company Stockholder Approval) if other Party will be a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and"Non-Terminating Party"):
(i) by ParentA Party commences any case, upon proceeding or other action with respect to such Party or its property in any jurisdiction relating to bankruptcy, insolvency, reorganization, dissolution, liquidation, winding-up, or relief from, or with respect to, or readjustment of, debts or obligations; or
(ii) A Party seeks the appointment of a breach receiver, trustee, custodian or other similar official for such Party for all or substantially all of its assets, or such Party makes a general assignment for the benefit of its creditors; or
(iii) A Party otherwise becomes the object of any representationcase, warranty, covenant proceeding or agreement on the part action of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy type referred to in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of preceding clauses (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) which remains unstayed, undismissed or undischarged for a period of [***] days; or
(iv) An action is commenced against a Party seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which remains unstayed, undismissed or undischarged for a period of [***] days; or
(v) A continuing event of default (taking into account any applicable grace period) by a Party on any payment of principal or interest on any indebtedness hereunder or in the Company ceasing payment of any guarantee obligation hereunder or an acceleration of all of a Party's obligations under any IAE financing agreement with ACA for the Aircraft, and such default or acceleration is (x) in an aggregate amount exceeding [***] and (y) not the subject of a good faith dispute between the parties. In the event of the occurrence of a Termination Event, the Terminating Party shall be deemed to exercise commercially reasonable efforts be in material breach of this Contract, and the Non-Terminating Party shall at its option have the right to cure resort to any remedy under applicable law, including, without limitation, the right by written notice, effective immediately, to terminate this Contract; provided that, no such breach notice need be delivered, and this Contract shall automatically terminate upon the occurrence of a Termination Event specified in sub-Clause (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(ii), (ii) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective(iii).
Appears in 1 contract
Samples: General Terms of Sale (Flyi Inc)
Termination Events. This Agreement Upon the occurrence of any of the following events (each, a "Termination Event") and whether any such Termination Event shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, the non-defaulting party (as the case may be terminated prior be, the "Aggrieved Party") may elect to the Effective Time (whether before or after adoption of terminate this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):accordance with Section 24 hereof:
(a) by mutual written consent duly authorized a party (the "Defaulting Party") fails to comply with the applicable Standard of Conduct and such failure continues unremedied for a period of twenty (20) days (or such longer period as determined by the boards Aggrieved Party) after the date on which written notice of directors such failure describing the nature of Parent such failure and requesting the Company;same to be remedied shall have been given to the Defaulting Party by the Aggrieved Party; or
(b) by either Parent or the Company if Defaulting Party fails to meet the Merger shall not have been consummated by August 15, 2007Targeted Service Levels for two (2) consecutive fiscal quarters; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;or
(c) the Defaulting Party fails to observe or to perform in any material respect any of its other covenants or agreements set forth herein, which failure shall (i) materially and adversely, in the reasonable judgment of the Aggrieved Party, affect the rights of the Aggrieved Party hereunder or under any Lease and (ii) continue unremedied for a period of thirty (30) days (or such longer period as determined by either Parent the Aggrieved Party) after the date on which written notice of such failure requesting the same to be remedied shall have been given to the Defaulting Party by the Aggrieved Party; or
(d) the Defaulting Party fails generally to pay its debts as they become due; or its dissolution, termination of existence, or discontinuance of business; or the Company if insolvency, business failure or appointment of a receiver of any part of such party's property, or an assignment by such party for the benefit of creditors, or the commencement by or against it of any proceedings under any bankruptcy, reorganization or arrangement laws and, in the case of any involuntary proceedings, the continuance of such proceedings unstayed and in effect for sixty (60) days, or the assumption of custody or control by any court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable orderover any substantial portion of the Defaulting Party's property, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and same remaining in force unstayed or unterminated for sixty (ii60) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvaldays; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) by either Parent the Defaulting Party (i) enters into any transaction of merger or consolidation or any commitment with respect thereto, unless it is the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment surviving corporation, after giving effect to such merger or postponement thereof) by the Required Parent Stockholder Approval; providedconsolidation, however, its tangible net worth is equal to or greater than that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time which existed immediately prior to the approval merger or consolidation and the ratio of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time its debt to tangible net worth is not greater than that which existed immediately prior to the approval merger or consolidation and the person with whom it merges or consolidates is not a competitor of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and other party; (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parentsells, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreementtransfers, or if otherwise disposes of all or substantially all of its assets; (iii) permits any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy substantial change in the Company’s representations and warranties ownership or breach by control of its capital stock; or (iv) changes the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result form of such particular breach or inaccuracy until the earlier organization of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)its business.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):terminated:
(a) at any time by mutual written consent duly authorized by the boards of directors of Parent Gevo Development and the CompanyRedfield;
(b) by either Parent Gevo Development or Redfield, if there shall be any Law enacted that makes consummation of the Company Contemplated Transactions illegal, or if the Merger any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of such transactions shall not have been consummated by August 15, 2007become final and nonappealable; provided, however, that the right party seeking to terminate this Agreement pursuant to this Section 7.1(b) must have used all reasonable efforts to remove any such Order;
(c) by Gevo Development, if any of Redfield’s representations and warranties contained in this Agreement shall have been materially inaccurate as of the date of this Agreement or as of the first day of the Retrofit Phase, or if any of Redfield’s covenants contained in this Agreement shall have been breached in any material respect; provided, however, that Gevo Development may not terminate this Agreement under this Section 9.1(b7.1(c) shall not be available to any party whose action on account of an inaccuracy in Redfield’s representations and warranties or failure to act has been a principal cause on account of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) a covenant by either Parent Redfield if such inaccuracy or the Company if breach is curable by Redfield unless Redfield fails to cure such inaccuracy or breach within a court reasonable period of competent jurisdiction time after receiving written notice from Gevo Development of such inaccuracy 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 the Mergerbreach;
(d) by either Parent or the Company Redfield, if (i) the Company Stockholders’ Meeting (including any adjournments representations and postponements thereof) warranties of Gevo Development contained in this Agreement shall have been held and completed and materially inaccurate as of the Company’s stockholders shall have taken a final vote on a proposal to adopt date of this AgreementAgreement or as of the first day of the Retrofit Phase, and (ii) or if any covenants of Gevo Development contained in this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at breached in any adjournment or postponement thereof) by the Required Company Stockholder Approvalmaterial respect; provided, however, that the right to Redfield may not terminate this Agreement under this Section 9.1(d7.1(d) shall not be available on account of an inaccuracy in the representations and warranties of Gevo Development or on account of a breach of a covenant by Gevo Development if such inaccuracy or breach is curable unless Gevo Development fails to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action cure such inaccuracy or failure to act breach within a reasonable period of the Company and time after receiving written notice from Redfield of such action inaccuracy or failure to act constitutes a material breach by the Company of this Agreementbreach;
(e) by either Parent or Gevo Development if, since the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent date of this Agreement, there shall have occurred any Material Adverse Effect on Redfield or there shall have occurred any event or circumstance that, in combination with any other events or circumstances, could reasonably be expected to have a Material Adverse Effect on Redfield;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) Gevo Development, if a Parent Triggering Redfield Termination Event shall have occurred;; and
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) Redfield, if a Company Triggering Gevo Development Termination Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Joint Venture Agreement (Gevo, Inc.)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger Closing has not taken place on or before the End Date (as defined below), other than as a result of any failure on the part of such terminating party to comply with or perform any covenant or obligation of such terminating party set forth in this Agreement;
(c) by Parent if (i) any representation or warranty of the Company or any Key Stockholder contained in this Agreement shall not be inaccurate or shall have been consummated by August 15breached as of the date of this Agreement, 2007or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, (A) all “Material Adverse Effect” and other materiality qualifications (other than those set forth in Sections 2.4(c), 2.8, 2.9(c)(iii), 2.10(a)(vii), 2.10(a)(xviii), 2.10(c), 2.10(d) and 2.26) and all “Knowledge” qualifications contained in such representations and warranties shall be disregarded, and (B) any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded), or (ii) any of the covenants or obligations of the Company or any Key Stockholder contained in this Agreement shall have been breached in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of the right Company or any Key Stockholder as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company or any Key Stockholder is curable by the Company or such Key Stockholder through the use of commercially reasonable efforts during the 30-day period 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 9.1(b9.1(c) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company or such Key Stockholder, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(d) by the Company if (i) any representation or warranty of Parent contained in this Agreement shall be inaccurate or shall have been breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 8.1 would not be available satisfied, or (ii) any of Parent’s covenants contained in this Agreement shall have been breached in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of Parent as of a date subsequent to any party whose action the date of this Agreement or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of a covenant by Parent is curable by Parent through the use of commercially reasonable efforts during the 30-day period 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 AgreementAgreement under this Section 9.1(d) 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 commercially reasonable efforts to cure such inaccuracy or breach;
(ce) by Parent if (i) there shall have occurred any Material Adverse Effect, or (ii) 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;
(f) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingOrder, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at Parent, if any time prior to the approval condition contained in Section 7 shall become incapable of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurredfulfillment;
(h) by the Company, upon a breach if any condition contained in Section 8 shall become incapable of any representation, warranty, covenant or agreement on fulfillment; or
(i) by Parent if the part Required Merger Stockholder Votes are not obtained within one day after the date of Parent or Merger Sub set forth in this Agreement. The “End Date” shall be April 15, or if any representation or warranty 2004; provided, however, that (i) if, on April 15, 2004, each of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not Sections 7 and 8 (other than those conditions that by their nature are to be satisfied as at the Closing) is satisfied or has been waived, other than either or both of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not Sections 7.6 and 7.12, then the End Date shall be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurateautomatically extended until June 15, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy 2004, and (ii) if the Company ceasing End Date shall have been extended until June 15, 2004 and if, on June 15, 2004, each of the conditions set forth in Sections 7 and 8 (other than those conditions that by their nature are to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement be satisfied at the Closing) is satisfied or has been waived, other than either or both of the conditions set forth in Sections 7.6 and 7.12, then the End Date shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)be automatically further extended until August 15, 2004.
Appears in 1 contract
Termination Events. 10.01. Consenting First Lien Creditor Termination Events. This Agreement may be terminated prior by the Required Consenting First Lien Creditors by the delivery to the Effective Time (whether before or after adoption Company and the other Parties of this Agreement by a written notice in accordance with Section 13.10 hereof upon the Company’s stockholders occurrence and whether before or after approval continuation of any of the issuance of Parent Common Stock in the Merger by Parent’s stockholdersfollowing events (each, unless otherwise specified belowa “First Lien Creditor Termination Event”):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
’s failure to meet, satisfy or achieve a Milestone, which Milestone remains unsatisfied for three (b3) by either Parent Business Days (unless such Milestone has been waived or the Company if the Merger shall not have been consummated by August 15, 2007extended in a manner consistent with this Agreement); provided, however, that the right to terminate this Agreement under this Section 9.1(b10.01(a) shall on account of a failure by the Company to meet, satisfy or achieve a Milestone may not be available to any party whose action or asserted by a Consenting First Lien Creditor if the Company’s failure to act has been a principal cause comply with such Milestone is caused by, or results from, the breach by such Consenting First Lien Creditor of the failure of the Merger to occur on its covenants, agreements or before such date and such action or failure to act constitutes a breach of obligations under this Agreement;
(b) the breach in any material respect by a Company Party of any of the representations, warranties, or covenants of such Party set forth in this Agreement that (i) is adverse to the Consenting First Lien Creditor seeking termination pursuant to this provision and (ii) remains uncured (if susceptible to cure) for three (3) Business Days after such terminating Consenting First Lien Creditor transmits a written notice in accordance with Section 13.10 hereof identifying any such breach;
(c) the issuance by either Parent any Governmental Entity, including any regulatory authority or the Company if a court of competent jurisdiction jurisdiction, of any ruling or other Governmental Body shall have issued order that (i) would reasonably be expected to prevent the consummation of or materially alter the Restructuring Transactions and (ii) remains in effect for fifteen (15) Business Days after such terminating Consenting First Lien Creditors transmit a final and nonappealable orderwritten notice in accordance with Section 13.10 identifying any such issuance; provided, decree that this termination right may not be exercised by any Consenting First Lien Creditor that sought or ruling, requested such ruling or shall have taken order in contravention of any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerobligation set out in this Agreement;
(d) by either Parent or the Company if (i) Bankruptcy Court enters an order denying confirmation of the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder ApprovalPlan; provided, however, that if the right denial of confirmation of the Plan is (i) due to a technical infirmity (e.g., classification issue) that does not require re-solicitation of the Plan and Disclosure Statement to cure such infirmity and (ii) does not impact the expected economic recovery or terms provided to holders of First Lien Claims under the Plan, the Required Consenting First Lien Creditors and the Company Parties shall use commercially reasonable efforts to cure the technical infirmity causing the basis for the denial and, if the Required Consenting First Lien Creditors have agreed to such cure (evidenced in writing, which may be by email) within five (5) Business Days of such denial, then no Party may terminate this Agreement under pursuant to this Section 9.1(d10.01(d); provided, further, that nothing contained in this Section 10.01(d) shall be deemed to modify or extend any applicable Milestones;
(e) the entry of an order by the Bankruptcy Court, or the filing of a motion or application by any Company Party seeking an order (without the prior written consent of the Required Consenting First Lien Creditors), (i) dismissing any of the Chapter 11 Cases, (ii) converting one or more of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code, (iii) appointing, in one or more of the Chapter 11 Cases, a trustee or examiner with expanded powers beyond those set forth in Sections 1106(a)(3) and (4) of the Bankruptcy Code; provided that an examiner appointed solely to review fees and expenses of professionals retained in the Chapter 11 Cases shall not be available constitute a Termination Event under Section 10 hereof; or (iv) terminating the Company’s exclusivity under Bankruptcy Code Section 1121;
(f) the entry into, implementation, modification, amendment, filing of or making public any of the Definitive Documents without the consent of the applicable Required Consenting First Lien Creditors to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of extent required in accordance with this Agreement;
(eg) entry of an order by either Parent the Bankruptcy Court granting relief from the automatic stay imposed by Section 362 of the Bankruptcy Code authorizing any party to proceed against any asset of any Company Party that would materially and adversely affect the Company Party’s operational or financial performance;
(h) any of the Company Parties (i) withdraws the Plan, (ii) publicly announces their intention not to support the Restructuring Transactions or (iii) files, publicly announces, or executes a definitive written agreement with respect to an Alternative Proposal;
(i) upon (i) a filing by any of the Company Parties of any motion, objection, application or adversary proceeding challenging the validity, enforceability, perfection or priority of, or seeking avoidance, subordination or characterization of the First Lien Notes Claims or the Company Second Lien Notes Claims, and/or the liens securing any such Claims or asserting any other claim or cause of action against and/or with respect to any such Claims, liens, any Consenting Creditor or any Agent or Indenture Trustee under any of the relevant debt documents (or if the Parent Stockholders’ Meeting Company Parties support any such motion, application or adversary proceeding commenced by any third party) or (including any adjournments and postponements thereofii) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance entry of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) an order by the Required Parent Stockholder Approval; providedBankruptcy Court providing relief adverse to the interests of any Consenting Creditor or any Agent or Indenture Trustee with respect to any of the foregoing claims, howevercauses of action or proceedings, including an order granting standing to any other party to prosecute such claims, causes of action or proceedings;
(j) the Company files any motion or pleading with the Bankruptcy Court that the right to terminate is inconsistent in any material respect with this Agreement under this Section 9.1(eand such motion or pleading has not been withdrawn within two (2) shall not be available to Parent where Business Days of receipt by the failure to obtain Company of written notice from the Required Parent Stockholder Approval shall have been caused by the action Consenting First Lien Creditors that such motion or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of pleading is inconsistent with this Agreement;
(fk) upon the delivery of an Alternative Proposal Termination Notice by the Company Parties, or upon a failure to provide an Alternative Proposal Termination Notice when required pursuant to Section 6.03(b) (at any time prior delivery of an Alternative Proposal pursuant to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder ApprovalSection 6.03(a) if or Section 6.03(c) shall not constitute a Parent Triggering Event shall have occurredtermination event hereunder);
(gl) by Parent (at any time prior to the approval upon termination of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurredBCA;
(hm) failure by the Company, upon a breach of any representation, warranty, covenant or agreement on Company Parties to pay the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions Consenting First Lien Creditor Fees and Expenses set forth in Section 8.1 or Section 8.2 would 13.12 of this Agreement as and when required under the Fee Letters; or
(n) the Bankruptcy Court enters a judgment (including an order granting partial summary judgment) that is not be satisfied as subject to a stay at any time following the tenth (10th) calendar day after the entry thereof against the Company on any of the time of such breach counts asserted against it (currently or as of in the time such representation future), which judgment adversely affects (or warranty shall have become inaccurate, provided that would adversely affect if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (ienforced) the expiration of a 30 day period commencing upon delivery of written notice from Consenting First Lien Creditors’ ability to obtain the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parentrecoveries contemplated in the Restructuring Term Sheet, upon a breach including the value of any representationequity, warranty, covenant or agreement on the part guaranties of the Company set forth in this Agreementindebtedness, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not other obligations to be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and thereunder, and/or (ii) the Company ceasing enters into a settlement or other agreement in respect of any of the counts asserted against it that materially and adversely affects (or would adversely affect if consummated) the Consenting First Lien Creditors’ ability to exercise commercially reasonable efforts obtain the recoveries contemplated by the Restructuring Term Sheet, including the value of any equity, guaranties of indebtedness, or other obligations to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach be provided by the Company is cured prior to such termination becoming effective)thereunder.
Appears in 1 contract
Samples: Restructuring Support Agreement
Termination Events. This 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 Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent Xxxxxxx and the CompanyXxxxx;
(b) by either Parent Sellers or Buyer by giving written notice to the Company other Party if the Merger Closing shall not have occurred by the date that is one hundred eighty (180) days after the date of this Agreement (the “Termination Date”), unless extended by written agreement of Sellers and Buyer; provided, however, that if the only conditions that have not been satisfied or waived as of the Termination Date are the obtaining of any Consents from any Governmental Authority, the Termination Date shall be automatically extended for an additional sixty (60) days; and provided, further, however, that the right to terminate this Agreement under this subsection (b) shall not be available to any Party whose breach of its obligations under this Agreement has been a cause of, or resulted in, the failure of the transactions contemplated hereby to be consummated by August 15such time;
(c) by either Sellers or Buyer by giving written notice to the other Party if such other Party has breached its representations, 2007warranties, covenants, agreements or other obligations hereunder in a manner that renders impossible the satisfaction of any condition of such Party giving notice set forth in Article VII not to be satisfied and such breach is incapable of being cured; provided, however, that the right to terminate this Agreement under this Section 9.1(bsubsection (c) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a Party who is then in material breach of this Agreementany of its representations, warranties, covenants, agreements or other obligations hereunder;
(cd) by either Parent Sellers or Buyer by giving written notice to the Company other Party if a court of competent jurisdiction or other any Governmental Body Authority shall have issued a final and nonappealable order, decree Governmental Order or ruling, or shall have taken any other action, having the effect of action permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) consummation of any of the transactions contemplated by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement such Governmental Order or other action shall not be subject to appeal or shall have been adopted at the Company Stockholders’ Meeting (become final and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalunappealable; provided, however, that the right to terminate this Agreement under this Section 9.1(dsubsection (d) shall not be available to the Company where any Party whose breach of its obligations under this Agreement has been a cause of, or resulted in, the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and transactions contemplated hereby to be consummated by such action or failure to act constitutes a material breach by the Company of this Agreementtime;
(e) by either Parent or the Company Sellers if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that all the conditions set forth in Section 7.1 and Section 7.3 have been satisfied (and continue to be satisfied) or Section 7.2 would irrevocably waived (other than any such conditions which by their terms are not be capable of being satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (iClosing Date) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) Buyer does not consummate the Company ceasing transactions contemplated hereby within five (5) Business Days following the day the Closing is required to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate occur pursuant to this Section 9.1(i2.2;
(f) as a result by Buyer if (i) all the conditions set forth in Section 7.2 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 such particular breach or inaccuracy if such breach being satisfied until the Closing Date) and (ii) Sellers do not consummate the transactions contemplated hereby within five (5) Business Days of the day the Closing is required to occur pursuant to Section 2.2; or
(g) by the Company is cured prior to such termination becoming effective)Buyer in accordance with Section 6.11.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to Closing and the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):transactions contemplated hereby may be abandoned:
(a) by mutual written consent duly authorized by either Comcast Subsidiary or TWE, at any time after the boards later of directors (i) the six-month anniversary of Parent the Adelphia Closing and (ii) the CompanyExtended Outside Date (as defined in the TWC Adelphia Agreement and as such date may be amended under Section 5.15 of the TWC Adelphia Agreement) (the later of (i) and (ii), the “Outside Closing Date”);
(b) at any time, by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause mutual agreement of the failure of the Merger to occur on or before such date Comcast Subsidiary and such action or failure to act constitutes a breach of this AgreementTWE;
(c) by either Parent Comcast Subsidiary or TWE, at any time upon written notice to the Company other, if a court the other is in material breach or default of competent jurisdiction its respective covenants, agreements, representations, or other Governmental Body 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 have issued 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 Date; provided, that if any covenant, agreement, representation or other obligation in this Agreement is qualified by a final and nonappealable orderreference to materiality or Material Adverse Effect, decree or ruling, or such qualifier shall have be taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerinto account without duplication;
(d) by either Parent Comcast Subsidiary or TWE prior to the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted Closing at any adjournment or postponement thereof) by the Required Company Stockholder Approvaltime following termination of either Adelphia Agreement in accordance with its terms; provided, howeverthat if the TWC Adelphia Agreement is amended pursuant to Section 5.15 of the TWC Adelphia Agreement, that the right to terminate this Agreement under then this Section 9.1(d11.1(d) shall not be available deemed to apply only to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act termination of the Company and such action or failure to act constitutes a material breach by the Company of this TWC Adelphia Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock Comcast Subsidiary as provided in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder ApprovalSection 13.16; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant Comcast Subsidiary on or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until after the earlier of June 1, 2007 and the date that is nine months following delivery of a Termination Notice pursuant to Section 2.3; provided, that Comcast Subsidiary shall have (i) the expiration of a 30 day period commencing upon delivery of given TWE at least 60 days prior written notice from the Company of its non-binding good faith intention to Parent of such breach or inaccuracy and so terminate under this clause (f), (ii) Parent or Merger Sub delivered an Appraisal Notice (as applicabledefined in the Partnership Interest Sale Agreement) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach on or inaccuracy if such breach by Parent or Merger Sub is cured before the 120th day prior to such termination becoming effective); and
and (iiii) by Parentcomplied in all material respects with its obligations herein, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth including in Section 7.1 or Section 7.2 would not be satisfied as of 7.12, to consummate the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)transactions contemplated hereby.
Appears in 1 contract
Samples: Redemption Agreement (Comcast Corp)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by of the boards of directors of Parent Purchaser and the CompanySelling Shareholders;
(b) by either Parent the Purchaser or the Company Selling Shareholders if the Merger shall Closing has not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur taken place on or before 5:00 p.m. (U.S. Pacific time) on March 15, 2008 (other than as a result of any failure on the part of the Party wishing to terminate to comply with or perform any covenant or obligation set forth in this Agreement (or in any other agreement or instrument entered into by such date and such action or failure to act constitutes a breach of this AgreementParty in connection with the Contemplated Transactions);
(c) by either Parent the Purchaser or the Company if Selling Shareholders if: (i) 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 the MergerContemplated Transactions; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to the Contemplated Transactions by any Governmental Body that would make consummation of such transactions illegal;
(d) by either Parent or the Company if Purchaser if: (i) any of the Company Stockholders’ Meeting representations and warranties of any of the Selling Shareholders contained in this Agreement shall be inaccurate as at the date of this Agreement, or shall have become inaccurate as at a date subsequent to the date of this Agreement, such that any of the conditions set forth in Section 7.1 would not be satisfied; or (including ii) any adjournments and postponements thereof) of the covenants of any of the Selling Shareholders contained in this Agreement shall have been held and completed and breached such that the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall condition set forth in Section 7.2 would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right representations and warranties of any of the Selling Shareholders as at a date subsequent to the date of this Agreement or a breach of a covenant by any of the Selling Shareholders is curable by a Selling Shareholder through the use of commercially reasonable efforts within 30 days after the Purchaser notifies the Selling Shareholder in writing of the existence of such inaccuracy or breach (the “Selling Shareholders Cure Period”), then the Purchaser may not terminate this Agreement under this Section 9.1(d) shall not be available as a result of such inaccuracy or breach prior to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act expiration of the Company and Selling Shareholders Cure Period, provided the Selling Shareholders, during the Selling Shareholders Cure Period, continue to exercise commercially reasonable efforts to cure such action inaccuracy or failure breach (it being understood that the Purchaser may not terminate this Agreement pursuant to act constitutes a material this Section 9.1(d) with respect to such inaccuracy or breach by if such inaccuracy or breach is cured prior to the Company expiration of this Agreement;the Selling Shareholders Cure Period); or
(e) by either Parent the Selling Shareholders if: (i) any of the Purchaser’s representations and warranties contained in this Agreement shall be inaccurate as at the date of this Agreement, or shall have become inaccurate as at a date subsequent to the Company date of this Agreement, such that the condition set forth in Section 8.1 would not be satisfied; or (ii) if any of the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) Purchaser’s covenants contained in this Agreement shall have been held and completed and Parent’s stockholders shall have taken a final vote on breached such that the issuance of shares of Parent Common Stock condition set forth in the Merger and the issuance of Parent Common Stock in the Merger shall Section 8.2 would not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right Purchaser’s representations and warranties as at a date subsequent to the date of 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 days after the Selling Shareholders notify the Purchaser in writing of the existence of such inaccuracy or breach (the “Purchaser Cure Period”), then the Selling Shareholders may not terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing 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 Selling Shareholders may not terminate this Agreement shall not terminate pursuant to this Section 9.1(h9.1(e) as a result of with respect to such particular inaccuracy or breach or inaccuracy if such inaccuracy or breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectivePurchaser Cure Period).
Appears in 1 contract
Samples: Share Purchase Agreement (Applied Materials Inc /De)
Termination Events. This The Agreement may, by notice given prior to or at the Closing, be terminated as follows:
(a) Upon the mutual written consent of the Prospect Parties and the Northwest Parties, this Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders on such terms and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;conditions as agreed; or
(b) by either Parent By written notice of the Prospect Parties to the Northwest Parties if any Northwest Party breaches in any material respect any of its representations or warranties or defaults in any material respect in the Company if observance or in the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) due and timely performance of any of its covenants or agreements herein contained and such breach or default shall not be available to any party whose action or failure to act has been a principal cause cured within 30 days of the failure date of notice of breach or default served by the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;Prospect Parties; or
(c) By written notice of the Northwest Parties to the Prospect Parties, if any Prospect Party breaches in any material respect any of its representations or warranties or defaults in any material respect in the observance or in the due and timely performance of any of its covenants or agreements herein contained and such breach or default shall not be cured within 30 days of the date of notice of breach or default served by either Parent the Northwest Parties; or
(d) By written notice of the Prospect Parties to the Northwest Parties, or by the Company Northwest Parties to the Prospect Parties if a any court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable any order, decree or ruling, ruling or shall have taken any other action, having the effect of permanently action restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalcontemplated transactions; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) by either Parent By written notice of the Prospect Parties to the Northwest Parties if any court, legislative body or governmental or regulatory authority has taken, or is reasonably expected to take, any action that would make the Company if consummation of the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment transactions contemplated hereby inadvisable or postponement thereof) undesirable as determined by the Required Parent Stockholder ApprovalProspect Parties in their sole discretion; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(f) by By written notice of the Company (at any time prior Prospect Parties to the approval Northwest Parties if it shall become apparent in the judgment of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at Prospect Parties reasonably exercised that any time prior condition to the approval obligation of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the CompanyProspect Parties to close, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions to which Northwest is obligated to perform as set forth in Section 8.1 or Section 8.2 would 6 will in fact not be satisfied as of prior to the time Closing Date (following prior notification of such breach or as of judgment by the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations Prospect Parties and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day cure period commencing upon delivery in favor of written notice from the Company Northwest Parties and the failure thereafter to Parent of provide reasonable assurance to the Prospect Parties that such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured condition will in fact be satisfied prior to the Closing Date). Notwithstanding the foregoing, no party hereto may effect a termination hereof at such termination becoming effective); and
(i) by Parent, upon a time such party is in material default or breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Termination Events. This Agreement may be terminated may, by notice given prior to or at the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholdersClosing, unless otherwise specified below):be terminated:
(a) by mutual written consent duly authorized by of the boards of directors of Parent Belfrics Entities and the CompanyLCLP (acting jointly);
(b) by the Belfrics Entities, if any of the conditions 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 the Belfrics Entities to comply with its obligations under this Agreement) and the Belfrics Entities has not waived such condition on or before the Closing Date; or (ii) by LCLP, if any of the conditions 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 LCLP to comply with its obligations under this Agreement) and LCLP has not waived such condition on or before the Closing Date;
(c) by either Parent the Belfrics Entities or LCLP (acting jointly), if there shall have been entered a final, non-appealable order or injunction of any Governmental Authority restraining or prohibiting the Company if consummation of the Merger transactions contemplated hereby;
(d) by LCLP, if, prior to the Closing Date, the Belfrics Entities or The Belfrics Entities is in material breach of any representation, warranty, covenant or agreement herein contained and such breach shall not have been consummated be cured within 10 days of the date of notice of default served by August 15, 2007LCLP claiming such breach; provided, however, that the right to terminate this Agreement under pursuant to this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a LCLP if LCLP is in material breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act time notice of the Company and such action or failure to act constitutes a material breach by the Company of this Agreementtermination is delivered;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to The Executive's employment and the Effective Time (whether before or after adoption of this Agreement by Employment Term shall terminate on the Company’s stockholders and whether before or after approval first of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following to occur:
(a) by mutual upon thirty (30) days written consent duly authorized notice by the boards Company to the Executive of directors of Parent and the Company;termination due to Disability.
(b) automatically on the date of death of the Executive.
(c) upon written notice by either Parent the Company of a termination with or without Cause. "Cause" shall mean (i) the willful and continuing failure by the Executive to perform his material obligations with the Company that has a material adverse effect on the Company or to follow the written, legal and ethical instructions of the Board (other than any such failure resulting from his incapacity due to Disability) that has a material adverse effect on the Company, unless any such failure is corrected within thirty (30) days following written notice by the Company specifying the details thereof; (ii) the commission of any act of gross negligence, willful misconduct, fraud or theft by the Executive (other than good faith expense account disputes) that has a material adverse affect on the Company; (iii) the conviction of the Executive of (or the pleading by the Executive of nolo contendere to) any felony that has a material adverse effect on the Company; or (iv) any willful material breach by the Executive of the terms of this Agreement, unless any such breach is corrected within thirty (30) days following written notice by the Company if specifying the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action details thereof. No act or failure to act has been a principal cause on the Executive's part shall be deemed "willful" unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive's action or omission was in the best interest of the failure of the Merger Company. The Executive shall not be deemed to occur on or before such date have been terminated for Cause unless and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-fourths of the entire membership of the Board, exclusive of the Executive, at a meeting of the Board called and held for such purpose (after reasonable written notice to the Executive and completed and an opportunity for the Company’s stockholders shall have taken a final vote on a proposal Executive, together with his counsel, to adopt this Agreementbe heard before the Board), and finding that in the good faith opinion of the Board, the Executive was guilty of the conduct described in (i), (ii), (iii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting or (and shall not have been adopted at any adjournment or postponement thereofiv) by the Required Company Stockholder Approval; provided, however, above that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes has a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote adverse effect on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior after giving the Executive the ability to correct such conduct as described above) and specifying the approval of the issuance of Parent Common Stock particulars thereof in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)detail.
Appears in 1 contract
Samples: Executive Employment Agreement (Repap Enterprises Inc)
Termination Events. This 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 Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent Xxxxxx and the CompanyXxxxx;
(b) by either Parent or the Company if the Merger shall Buyer by written notice to Seller if:
(i) Buyer is not have been consummated by August 15, 2007; provided, however, that the right to terminate then in material breach of any provision of this Agreement under this Section 9.1(b) shall not be available to any party whose action and there has been a breach, inaccuracy in or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of perform any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in made by Seller pursuant to this Agreement shall have become inaccuratethat would give rise to the failure of any of the conditions specified in ARTICLE VII and such breach, in either case such that the conditions set forth in Section 8.1 accuracy or Section 8.2 would failure has not be satisfied as been cured by Seller within ten (10) days of the time Seller’s receipt of written notice of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and Buyer; or
(ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result Any of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would 7.3 shall not have been, or if it becomes apparent that any such condition will not be, fulfilled by February 29, 2024 (the “Termination Date”), unless such failure shall be due to the failure of Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; provided, however, that if the only conditions that have not been satisfied or waived as of the time Termination Date are the obtaining of any Consents from any Governmental Authority, the Termination Date shall be automatically extended for an additional sixty (60) days;
(c) by Seller by written notice to Buyer if:
(i) Seller is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ARTICLE VII and such breach, in accuracy or failure has not been cured by Buyer within ten (10) days of Buyer’s receipt of written notice of such breach from Seller; or
(ii) Any of the conditions set forth in Section 7.2 or Section 7.3 shall not have been, or if it becomes apparent that any such condition will not be, fulfilled by the Termination Date, unless such failure shall be due to the failure of Seller to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; provided, however, that if the only conditions that have not been satisfied or waived as of the time Termination Date are the obtaining of any Consents from any Governmental Authority, the Termination Date shall be automatically extended for an additional sixty (60) days; or
(d) by Buyer or Seller in the event that (i) there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited or (ii) any Governmental Authority shall have issued a Governmental Order restraining or enjoining the transactions contemplated by this Agreement, and such representation or warranty Governmental Order shall have become inaccurate, provided that if such inaccuracy in the Company’s representations final and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)non-appealable.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Altus Power, Inc.)
Termination Events. This Agreement may be terminated prior to the Effective Time Following any Termination Event (whether before as defined below) or after adoption any other material breach of this Agreement by the Company’s stockholders Cinram, irrespective of whether any notice has been provided to WEA and whether before even where WEA did not discover that such Termination Event or breach occurred until after approval a filing of bankruptcy or a similar proceeding by a particular member of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if Cinram Group: (i) the Company Stockholders’ Meeting Permitted Exclusion Percentages set forth in Exhibit A (including M&P Terms) and Exhibit B (PP&S Terms) hereto shall automatically (and without the requirement of any adjournments and postponements thereofnotice or action of any kind) be amended to **, which amended Permitted Exclusion Percentages shall have been held and completed apply for the then-current calendar year and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, remainder of the Term; and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted WEA may by written notice to Cinram at any adjournment time (as long as such notice is provided to Cinram no later than six (6) months after Cinram notifies WEA in writing of such Termination Event or postponement thereofbreach) by terminate the Required Company Stockholder Approval; providedTerm in whole or in part. Cinram shall provide WEA with written notice immediately upon, howeverand in any event no later than two (2) business days after, that it knows or becomes aware of (or should have known or become aware of) the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the occurrence of any Termination Event, and failure to obtain the Required Company Stockholder Approval provide such notice to WEA shall have been caused by the action or failure itself be deemed to act of the Company and such action or failure be a Termination Event. Each Termination Event shall be deemed to act constitutes be a material breach by of this Agreement that is incapable of cure, and any material breach of this Agreement that is not a Termination Event shall (except as otherwise provided in this Agreement) be subject to a cure period of forty-five (45) days following written notice to Cinram of such breach. Each of the Company following shall be deemed to be a “Termination Event” for purposes of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).:
Appears in 1 contract
Samples: Manufacturing Agreements (Warner Music Group Corp.)
Termination Events. This Agreement may be terminated at any time prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing Date as follows:
(a) by mutual written consent duly authorized by agreement of the boards of directors of Parent Purchaser and the CompanySeller;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, Seller (provided that the right to terminate this Agreement under this Section 9.1(b) shall Seller is not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a then in material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or other agreement on contained herein for which the part Purchaser shall have previously notified the Seller), if there has been a breach by the Purchaser of Parent any of its representations, warranties, covenants or Merger Sub set forth agreements contained in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or and warranty shall have become inaccurateuntrue, provided in any such case that if Section 6.2 will not be satisfied and such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until condition has not been promptly cured within 30 days following receipt by the earlier of (i) the expiration of a 30 day period commencing upon delivery Purchaser of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); andbreach;
(ic) by Parent, upon a the Purchaser (provided that the Purchaser is not then in material breach of any representation, warranty, covenant or other agreement on contained herein for which the part Seller shall have previously notified the Purchaser), if there has been a breach by the Seller of the Company set forth any of its representations, warranties, covenants or agreements contained in this Agreement, or if any such representation or and warranty of the Company set forth in this Agreement shall have become inaccurateuntrue, in either any such case that Section 6.3 will not be satisfied and such breach or condition has not been promptly cured within 30 days following receipt by the Seller of written notice of such breach;
(d) by the Purchaser (provided that the conditions Purchaser is not then in material breach of any representation, warranty, covenant or other agreement contained herein) at or prior to the Due Diligence Expiration Date, if the Purchaser is not satisfied with its due diligence review of the Business;
(e) by the Purchaser (provided that the Purchaser is not then in material breach of any representation, warranty, covenant or other agreement contained herein) at any time prior to Closing, if a Material Adverse Effect event, condition or matter shall have occurred and be continuing at the time of any such termination;
(f) by either the Seller or the Purchaser if any decree, injunction, judgment, order or other action by any court of competent jurisdiction, any arbitrator or any Governmental Entity preventing or prohibiting the consummation of the transactions contemplated hereby or the performance of the other material obligations of the Seller or the Purchaser under this Agreement or the Ancillary Agreements shall have become final and nonappealable (so long as the party seeking termination is not in breach of Section 5.5 hereof);
(g) by the Purchaser, if the Bankruptcy Court has not entered the Section 363/365 Order within the time frame specified in Section 6.1(a), unless the Bankruptcy Court has not entered the Section 363/365 Order within such time frame due to the failure of the Purchaser to perform or observe in all material respects the covenants and agreements of the Purchaser set forth herein; provided, however, that if the Bankruptcy Court has not entered the Section 363/365 Order within the time frame specified in Section 6.1(a), and the Purchaser does not exercise its right by written notice to terminate this Agreement pursuant to this Section 7.1(g) within one (1) Business Day of the failure of this condition, then the date specified in Section 6.1(a) shall be extended for thirty (30) days. If the Purchaser does not exercise its right to terminate this Agreement by written notice pursuant to Section 7.1(g) within one (1) Business Day after such thirty (30) day extended period, the Purchaser shall be deemed to have irrevocably waived (x) its right to terminate this Agreement pursuant to this Section 7.1(g) and (y) the condition set forth in Section 7.1 or 6.1(a) of this Agreement;
(h) subject to the Purchaser’s rights under Section 7.2 would not be satisfied as 5.7 of the time of such breach or as of the time such representation or warranty shall have become inaccuratethis Agreement, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by Seller if its Board of Directors approves or recommends one or more Alternative Transactions in accordance with the Company then Bidding Procedures set forth in Section 5.2 of this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until and the earlier of Bidding Procedures Order;
(i) provided the expiration terminating party is not in default of a 30 day period commencing upon delivery of written notice from Parent its obligations under this Agreement, by either the Seller or the Purchaser if the Closing shall not have occurred on or prior to the Company date that is sixty (60) days after the date of such breach entry of the Section 363/365 Order on the docket of the Bankruptcy Court;
(j) providing the Purchaser is not in default of its obligations under this Agreement, by the Purchaser pursuant to Section 5.11(a); or
(k) provided the terminating party is not in default of its obligations under this Agreement, by either the Seller or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement Purchaser if the Closing shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach have occurred on or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)October 15, 2002.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger Closing has not taken place on or before the End Date (as defined below), other than as a result of any failure on the part of such terminating party to comply with or perform any covenant or obligation of such terminating party set forth in this Agreement;
(c) by Parent if (i) any representation or warranty of the Company or any Key Stockholder contained in this Agreement shall not be inaccurate or shall have been consummated by August 15breached as of the date of this Agreement, 2007or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 7.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, (A) all “Material Adverse Effect” and other materiality qualifications (other than those set forth in Sections 2.4(c), 2.8, 2.9(c)(iii), 2.10(a)(vii), 2.10(a)(xviii), 2.10(c), 2.10(d) and 2.25) and all “Knowledge” qualifications contained in such representations and warranties shall be disregarded, and (B) any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall be disregarded), or (ii) any of the covenants or obligations of the Company or any Key Stockholder contained in this Agreement shall have been breached in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of the right Company or any Key Stockholder as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company or any Key Stockholder is curable by the Company or such Key Stockholder through the use of commercially reasonable efforts during the 30-day period 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 9.1(b9.1(c) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company or such Key Stockholder, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(d) by the Company if (i) any representation or warranty of Parent contained in this Agreement shall be inaccurate or shall have been breached as of the date of this Agreement, or shall have become inaccurate or shall be breached as of a date subsequent to the date of this Agreement (as if made on such subsequent date), 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 in any material respect; provided, however, that if an inaccuracy in or breach of any representation or warranty of Parent as of a date subsequent to any party whose action the date of this Agreement or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of a covenant by Parent is curable by Parent through the use of commercially reasonable efforts during the 30-day period 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 AgreementAgreement under this Section 9.1(d) 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 commercially reasonable efforts to cure such inaccuracy or breach;
(ce) by Parent if (i) there shall have occurred any Material Adverse Effect, or (ii) 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;
(f) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingOrder, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at Parent, if any time prior to the approval condition contained in Section 7 shall become incapable of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurredfulfillment;
(h) by the Company, upon a breach if any condition contained in Section 8 shall become incapable of any representation, warranty, covenant or agreement on fulfillment; or
(i) by Parent if the part Required Merger Stockholder Votes are not obtained within one day after the date of Parent or Merger Sub set forth in this Agreement. The “End Date” shall be June 30, or if any representation or warranty 2005; provided, however, that (i) if, on June 30, 2005, each of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not Sections 7 and 8 (other than those conditions that by their nature are to be satisfied as at the Closing) is satisfied or has been waived, other than either or both of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not Sections 7.6 and 7.12, then the End Date shall be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurateautomatically extended until August 31, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy 2005, and (ii) if the Company ceasing End Date shall have been extended until August 31, 2005 and if, on August 31, 2005, each of the conditions set forth in Sections 7 and 8 (other than those conditions that by their nature are to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement be satisfied at the Closing) is satisfied or has been waived, other than either or both of the conditions set forth in Sections 7.6 and 7.12, then the End Date shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)be automatically further extended until October 31, 2005.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized This Agreement shall automatically terminate upon the occurrence of any of the following events (the “Termination Events”), unless such automatic termination is waived in writing by the boards of directors of Parent Requisite Consenting Lenders, the Shareholder Party and the Company;
, within three (b3) by either Parent or days of the Company if occurrence of such event, and in accordance with the Merger requirements of Section 4, in which case the Termination Event so waived shall be deemed not to have been consummated by August 15occurred, 2007this Agreement shall be deemed to continue in full force and effect, and the rights and obligations of the Parties hereto shall be restored, subject to any modification set forth in such waiver; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act waiver of the Company and the Shareholder Party, but not the Requisite Consenting Lenders, shall be required with respect to any automatic termination to the extent that such action automatic termination occurs pursuant to paragraphs (xvi) or failure (xx) below; provided, further, that the waiver of Requisite Consenting Lenders, but not the Shareholder Party, Worldwide or the Company, shall be required with respect to act constitutes a material breach any automatic termination to the extent that such automatic termination occurs pursuant to any of paragraphs (xiii), (xv), (xxiv), or (xxv) below; provided, further, that the waiver of Requisite Consenting Lenders and the Shareholder Party, but not Worldwide or the Company, shall be required with respect to any automatic termination to the extent that such automatic termination occurs pursuant to paragraph (xiv).
(i) In the event Travelport LLC has not issued the Second Lien Opco Term Loan (as defined in the Term Sheet) by the Company of this AgreementOctober 7, 2011;
(eii) In the event the Restructuring has not been completed out-of-court by either Parent or October 7, 2011 and the Company if has not commenced a Chapter 11 Case or Bermuda proceeding by October 7, 2011;
(iii) If the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken Company files a final vote on Chapter 11 Case by October 7, 2011, the issuance of shares of Parent Common Stock in Disclosure Statement with respect to the Merger and the issuance of Parent Common Stock in the Merger Plan shall not have been approved at and the Parent Stockholders’ Meeting (and Plan shall not have been approved at any adjournment or postponement thereof) confirmed by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) 60 days after filing the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy Chapter 11 Case and (ii) Parent December 6, 2011;
(iv) If the Company files a Chapter 11 Case or Merger Sub Bermuda Proceeding by October 7, 2011, the Company shall fail, within three (3) business days of such filing, to file the Plan or the Scheme of Arrangement with the U.S. bankruptcy court or the Bermuda Supreme Court, as applicable, together with any related Disclosure Statement;
(v) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement If the Company files a Chapter 11 Case by October 7, 2011, the Plan shall not terminate pursuant to this Section 9.1(h) as a result have been substantially consummated within twenty days after the confirmation of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); andthe Plan;
(ivi) by ParentThe Restructuring Documents are not in form and substance reasonably satisfactory to the Company, upon a breach of any representation, warranty, covenant the Requisite Consenting Lenders or agreement on the part of Shareholder Party within the Company relevant time frames set forth in this Agreement, ;
(vii) Any Chapter 11 Case filed by the Company is dismissed or if any representation or warranty is converted to a case under chapter 7 of the Bankruptcy Code;
(viii) If the Company files a Chapter 11 Case, the bankruptcy court shall enter an order appointing (A) a trustee under chapter 7 or chapter 11 of the Bankruptcy Code or (B) a responsible officer or an examiner, in either case, with enlarged powers relating to the operation of the business (powers beyond those set forth in subclauses (3) and (4) of Section 1106(a)) under Section 1106(b) of the Bankruptcy Code;
(ix) If the Company files a Chapter 11 Case by October 7, 2011, the orders of the bankruptcy court confirming the Plan or approving the Disclosure Statement related thereto shall have been stayed, reversed, vacated or otherwise modified, other than merely ministerial modifications (e.g., with respect to names, addresses and similar modifications);
(x) Any court shall enter a final, non-appealable judgment or order declaring this Agreement or any material portion hereof to be unenforceable;
(xi) Any court shall enter an order denying confirmation of the Plan or approval of the Scheme of Arrangement or any analogous event described in clauses (vii), (viii) or (ix) shall occur in any Bermuda Proceeding if one is commenced to effectuate the Scheme of Arrangement;
(xii) Any governmental authority, including any court of competent jurisdiction or regulatory authority, grants relief that is inconsistent with this Agreement in any material respect (with such amendments and modifications as have been effected in accordance with the terms hereof) or enjoining the consummation of a material portion of the Restructuring;
(xiii) The entry of an order by any court of competent jurisdiction invalidating or disallowing any portion of the Claims or subordinating or limiting, as applicable, the enforceability, priority, amount or validity of any portion of the Claims;
(xiv) Following the commencement of the Chapter 11 Case, the Company (i) withdraws the Plan or (ii) publicly announces its intention to not support the Plan but, only if, such withdrawal or announcement does not occur in the context of a termination of this Agreement, as contemplated pursuant to paragraph (xvii) below;
(xv) Any material breach of this Agreement by the Company, the Shareholder Party or Worldwide; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by such Party of such breach from the Requisite Consenting Lenders or the Shareholder Party of such breach (provided that the none of the Initial Consenting Lenders or Requisite Consenting Lenders are not then in material breach of its obligations hereunder), and such breach, if capable of being cured, remains uncured for a period of five (5) business days;
(xvi) Any material breach of this Agreement by a Consenting Lender; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by the Consenting Lenders of such breach from either the Company, Worldwide or the Shareholder Party (provided that the Party giving notice of a breach by a Consenting Lender is not itself in material breach of its obligations hereunder) and such breach, if capable of being cured, remains uncured for a period of five (5) business days;
(xvii) Immediately upon delivery by any of the Company, Worldwide or the Shareholder Party (collectively, the “Notifying Parties” and each, a “Notifying Party”) to the Consenting Lenders of notice (in accordance with Section 25 below) of its intent, in the exercise of its fiduciary duties (set forth in Section 19 below) to take any action that is otherwise prohibited hereunder or to refrain from taking any action that is required hereunder (a “Fiduciary Out Notice”); provided, however that no Notifying Party shall have or incur any liability under this Agreement or otherwise on account of, arising out of or otherwise relating to any other Notifying Party’s issuance of a Fiduciary Out Notice;
(xviii) Travelport LLC shall not have received amendments and consents consistent in all material respects with the Term Sheet on a basis reasonably acceptable to the Company, in either case, as necessary to effectuate the Restructuring and by the requisite percentage or number of the lenders party to Opco Credit Facility by October 7, 2011;
(xix) [Reserved];
(xx) The Board of Directors of the Company’s direct subsidiary, Travelport Limited, shall have not received by October 7, 2011, solvency opinions from a nationally recognized valuation firm for those subsidiaries to which a solvency opinion is reasonably required to consummate the Restructuring and in form and substance reasonably acceptable to the Company and sufficient under applicable law, in each case, for such purpose;
(xxi) [Reserved];
(xxii) [Reserved];
(xxiii) By mutual written consent of the Company, the Shareholder Party and the Requisite Consenting Lenders;
(xxiv) The occurrence of an Event of Default under the PIK Credit Agreement, other than as a result of the Company’s entry into this Agreement or the taking of any actions required or contemplated by, and consistent with, the terms of this Agreement; or
(xxv) The failure of the Bermuda Monetary Authority to approve (i) each of the Consenting Lenders and (ii) at least 70% of the Lenders as of the date hereof to be shareholders of Worldwide, in each case, within (x) twenty days after confirmation of the Plan or (y) October 31, 2011 if the Restructuring is consummated out of court, or such later date as shall be agreed to by the Consenting Lenders.
(b) Upon a termination of this Agreement in accordance with this Section 8, no Party hereto shall have any continuing liability or obligation to any other Party hereunder and the provisions of this Agreement shall have become inaccurateno further force or effect, except for the provisions in either case Sections 10-11 and 13-25, each of which shall survive termination of this Agreement; provided that no such that termination shall relieve any Party from liability for its breach or non-performance of its obligations hereunder prior to the conditions date of such termination (other than as set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurateSections 8(a)(xvii), provided that if such inaccuracy in (xviii) and (xx)). In addition, the Company’s representations obligation to reimburse the Initial Consenting Lenders for their out of pocket costs and warranties or breach by expenses, including professional fees as set forth in the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent Term Sheet up to the Company date of termination of this Agreement, shall survive such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)termination.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to upon delivery of written notice of termination delivered in accordance with Section 17 hereof, in accordance with the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following provisions:
(ai) by with the mutual written consent duly authorized by of the boards of directors of Parent Requisite Holders (as defined in Section 5 hereof) and the CompanyXxxxxx X. Xxxxx at any time;
(bii) upon the giving of written notice of termination by the Requisite Holders to Xxxxxx X. Xxxxx following any material breach by any of the Xxxxx Parties of their representations or agreements contained herein, if such breach has continued uncured for five (5) business days after written notice of such breach from the Requisite Holders to Kasowitz, Benson, Xxxxxx & Xxxxxxxx LLP (“Kasowitz”), counsel to Xxxxxx X. Xxxxx;
(iii) upon the giving of written notice of termination by Xxxxxx X. Xxxxx to Stroock & Stroock & Xxxxx LLP, counsel for the Holders (“Stroock”), following any material breach by any of the Holders of their representations or agreements contained herein, if such breach has continued uncured for five (5) business days after written notice of such breach from the Xxxxx Parties to Stroock;
(iv) by either Parent or the Company Xxxxxx X. Xxxxx if the Merger (x) any court of competent jurisdiction shall not have been consummated by August 15, 2007; provided, however, declare that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure Holders have materially breached any other agreement to which it was a party by its entry into this Agreement, or (y) any of the Merger Holders shall admit in writing that such Holder has materially breached any other agreement to occur on or before such date and such action or failure to act constitutes which it was a breach of party by its entry into this Agreement;
(cv) by either Parent or the Company Requisite Holders if a any court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingdeclare, or any of the Xxxxx Parties shall admit in writing, that any of the Xxxxx Parties have taken materially breached any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) agreement to which it was a party by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of its entry into this Agreement;
(evi) by either Parent the Requisite Holders or the Company Xxxxxx X. Xxxxx if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) court of competent jurisdiction shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate declare this Agreement under this Section 9.1(e) shall not to be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreementunenforceable;
(fvii) by the Company (at any time after April 30, 2010 by either the Requisite Holders or Xxxxxx X. Xxxxx if the Bankruptcy Court has not entered the Confirmation Order with respect to the Amended AHC Plan on or prior to the approval of the issuance of Parent Common Stock in the Merger such date notwithstanding commercially reasonable efforts by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredHolders to achieve such result;
(gviii) by Parent (at any time after the date that is one-hundred fifty (150) calendar days after the entry of the Confirmation Order with respect to the Amended AHC Plan by either the Requisite Holders or Xxxxxx X. Xxxxx if the Effective Date with respect to the Amended AHC Plan has not occurred on or prior to the approval of the Merger such date notwithstanding commercially reasonable efforts by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurredHolders to achieve such result;
(hix) upon the dismissal of the Debtors’ Chapter 11 cases or the conversion of the Bankruptcy Case from one under Chapter 11 to one under Chapter 7 of the Bankruptcy Code, other than as contemplated pursuant to the Amended AHC Plan;
(x) by either the Company, upon Requisite Holders or Xxxxxx X. Xxxxx if the Backstop Agreement is terminated in accordance with its terms due to a breach failure to satisfy any of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would the Backstop Agreement that are not be satisfied as within the control of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); andHolders;
(ixi) by Parent, upon either the Requisite Holders or Xxxxxx X. Xxxxx if the Backstop Agreement is terminated by the Holders (other than due to a breach failure to satisfy any of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would the Backstop Agreement that are not be satisfied as within the control of the time of such breach Holders); or
(xii) by either the Requisite Holders or as of Xxxxxx X. Xxxxx if the time such representation or warranty shall have become inaccurate, provided Court (1) grants relief that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then materially inconsistent with this Agreement shall not terminate pursuant to this Section 9.1(ior the Amended AHC Plan in any respect or (2) as a result enters an order confirming any plan of such particular breach or inaccuracy until reorganization for the earlier of (i) Debtors other than the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Amended AHC Plan.
Appears in 1 contract
Samples: Plan Support Agreement (Trump Entertainment Resorts, Inc.)
Termination Events. This Agreement may may, by notice, be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):terminated:
(a) by mutual written consent duly authorized Altisource U.S. or Altisource S.à x.x., if a material breach of any provision of this Agreement has been committed by any Seller prior to the last to occur of the Homeward Closing and the Beltline Closing, and such breach has not been waived by the boards of directors of Parent Altisource U.S. and the CompanyAltisource S.à x.x.;
(b) by either Parent or the Company Seller Representative, if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate a material breach of any provision of this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause committed by Altisource U.S. or Altisource S.à x.x. prior to the last to occur of the failure of Homeward Closing and the Merger to occur on or before such date Beltline Closing, and such action or failure to act constitutes a breach of this Agreementhas not been waived by the Seller Representative;
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final Altisource U.S. and nonappealable orderAltisource S.à x.x., decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerpursuant to Section 5.8;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed mutual consent of Altisource U.S., Altisource S.à x.x. and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available Seller Representative prior to the Company where the failure last to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act occur of the Company Homeward Closing and such action or failure to act constitutes a material breach by the Company of this AgreementBeltline Closing;
(e) by either Parent or Altisource U.S. and Altisource S.à x.x. if each of the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger Homeward Closing and the issuance Beltline Closing has not occurred (other than through the failure of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (Altisource U.S. and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right Altisource S.à x.x. to terminate this Agreement comply fully with its obligations under this Section 9.1(eAgreement) shall not be available to Parent where on or before January 1, 2014, or such later date as the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;Parties may agree upon; or
(f) by the Company Seller Representative if each of the Homeward Closing and the Beltline Closing has not occurred (at other than through the failure of any time prior Seller to comply fully with its respective obligations under this Agreement) on or before January 1, 2014, or such later date as the Parties may agree upon; provided that, to the approval extent one of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have Closings has occurred;
(g) by Parent (at , any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate termination pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until 8.1 shall only be effective with respect to the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part obligations of the Company set forth in this Agreement, or if any representation or warranty of Parties to consummate the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)other Closing.
Appears in 1 contract
Termination Events. This Agreement may by notice be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):terminated:
(a) by mutual written consent duly authorized by either Seller or Buyer at any time if (i) any Governmental Entity which must grant a requisite regulatory approval has denied approval of the boards Contemplated Transactions, requested that an application submitted for a requisite regulatory approval be withdrawn, or notified or advised any party that such Governmental Entity will not grant (or intends to rescind or revoke if previously approved) any requisite regulatory approval with respect to the Contemplated Transactions, or (ii) any Governmental Entity imposes a condition in connection with approval of directors the Contemplated Transactions which, in the good faith judgment of Parent and Seller or Buyer, will materially impair the Companyability of Buyer to complete the Contemplated Transactions; or (iii) any Governmental Entity of competent jurisdiction shall have issued a final nonappealable order enjoining or otherwise prohibiting the consummation of the Contemplated Transactions; provided, however, that no party shall have the right to terminate this Agreement pursuant to this Section 10.1(a) if the denial or order referred to above shall be due to the failure of the party seeking to terminate this Agreement to perform or observe any of its covenants or agreements set forth herein;
(b) by either Parent Buyer or the Company Seller at any time, if the Merger shall not have been consummated by August 15a breach of any representation, 2007; provided, however, that the right to terminate warranty or obligation contained in this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been committed by the other party and such breach has not been cured as permitted hereby or waived;
(i) by Buyer at any time if any of the conditions to Buyer’s obligation to complete the Closing specified in Sections 7 or 9 have not been satisfied as of the Closing Date or if satisfaction of such a principal cause of condition is or becomes impossible (other than through the failure of the Merger Buyer to occur comply with their obligations under this Agreement) and Buyer has not waived such condition on or before the Closing Date; or (ii) by Seller at any time, if any of the conditions to Seller’s obligation to complete the Closing specified in Sections 8 or 9 have not been satisfied as of the Closing Date or if satisfaction of such date and such action a condition is or becomes impossible (other than through the failure of Seller to act constitutes a breach of comply with its obligations under this Agreement;
(c) by either Parent and Seller has not waived such condition on or before the Company 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 the MergerClosing Date;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments mutual consent of Buyer and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted Seller at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreementtime;
(e) by either Parent Buyer or the Company Seller on or after December 31, 2009, if the Parent Stockholders’ Meeting Closing has not occurred (including other than through the failure of any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right party seeking to terminate this Agreement to comply fully with its obligations under this Section 9.1(eAgreement) shall not be available to Parent where on or before such date, or such later date as the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreementparties may agree;
(f) by Seller on or after November 16, 2009, if Seller does not receive from Buyer evidence satisfactory to Seller of the Company satisfaction of the condition set forth in clause (i) Section 7.3 (which satisfactory evidence shall include (1) signed irrevocable subscription agreements for at any time prior least the amount set forth in clause (i) of Section 7.3 of this Agreement and (2) immediately available funds in an amount at least equal to the approval amount set forth in clause (i) of the issuance Section 7.3 of Parent Common Stock this Agreement, on or before November 15, 2009 (or such later date as may be determined in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;Seller’s sole discretion); or
(g) by Parent (at any time prior Seller on or after December 16, 2009, if Seller does not receive from Buyer evidence satisfactory to the approval Seller of the Merger by satisfaction of the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub condition set forth in clause (ii) Section 7.3 (which satisfactory evidence shall include (1) signed irrevocable subscription agreements for at least the amount set forth in clause (ii) of Section 7.3 of this Agreement and (2) immediately available funds in an amount at least equal to the amount set forth in clause (ii) of Section 7.3 of this Agreement, on or if any representation before December 15, 2009 (or warranty of Parent or Merger Sub set forth such later date as may be determined in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in ParentSeller’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effectivesole discretion); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Stock Purchase Agreement (Royal Bancshares of Pennsylvania Inc)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by the boards of directors of Parent Purchaser and the CompanySelling Shareholders’ Agent, acting on behalf of the Selling Shareholders;
(b) by either Purchaser if the Closing has not taken place on or before September 30, 2006 (the “End Date”) other than as a result of any failure on the part of Purchaser or Parent to comply with or perform any covenant or obligation of Purchaser or Parent, respectively, set forth in this Agreement or in any other agreement or instrument delivered to the Selling Shareholders;
(c) by the Selling Shareholders’ Agent if the Closing has not taken place on or before the End Date (other than as a result of the failure on the part of the Company or any of the Selling Shareholders or the Selling Shareholders’ Agent to comply with or perform any covenant or obligation of the Company or any of the Selling Shareholders or the Company or the Selling Shareholders’ Agent, respectively, set forth in this Agreement or in any other agreement or instrument delivered to Purchaser or Parent);
(d) by Purchaser if (i) any representation or warranty of the Merger Company or any Selling Shareholder 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 (as if made on such subsequent date) such that the condition set forth in Section 7.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, (A) all materiality qualifications and similar qualifications contained or incorporated directly or indirectly in such representations and warranties shall be disregarded, and (B) any update of or modification to the Disclosure Schedule made or purported to have been consummated by August 15made on or after the date of this Agreement shall be disregarded), 2007or (ii) any of the covenants or obligations of the Company or any Selling Shareholder contained in this Agreement shall have been breached in any material respect such that the condition set forth in Section 7.2 would not be satisfied; provided, however, that if an inaccuracy in or breach of any representation or warranty of the right Company or any Selling Shareholder as of a date subsequent to the date of this Agreement or a breach of a covenant or obligation by the Company or any Selling Shareholder is curable by the Company or such Selling Shareholder through the use of commercially reasonable efforts during the 10-day period after Purchaser or Parent notifies the Company and Selling Shareholders’ Agent in writing of the existence of such inaccuracy or breach (the “Company Cure Period”), then Purchaser may not terminate this Agreement under this Section 9.1(b9.1(d) as a result of such inaccuracy or breach prior to the expiration of the Company Cure Period, provided the Company or such Selling Shareholder, during the Company Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(e) by the Selling Shareholders’ Agent if (i) any representation or warranty of Purchaser or Parent 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 (as if made on such subsequent date) such that the condition set forth in Section 8.1 would not be available to any party whose action or failure to act has been a principal cause satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the failure date of this Agreement or as of any subsequent date, all materiality qualifications and similar qualifications contained or incorporated directly or indirectly in such representations and warranties shall be disregarded), or (ii) if any of Purchaser’s or Parent’s covenants or obligations contained in this Agreement shall have been breached in any material respect such that the Merger condition set forth in Section 8.2 would not be satisfied; provided, however, that if an inaccuracy in or breach of any representation or warranty of Purchaser or Parent as of a date subsequent to occur on the date of this Agreement or before such date and such action or failure to act constitutes a breach of a covenant or obligation by Purchaser or Parent is curable by Purchaser or Parent through the use of commercially reasonable efforts during the 10-day period after the Selling Shareholders’ Agent notifies Purchaser or Parent in writing of the existence of such inaccuracy or breach (the “Parent Cure Period”), then the Selling Shareholders’ Agent may not terminate this AgreementAgreement under this Section 9.1(e) as a result of such inaccuracy or breach prior to the expiration of the Parent Cure Period, provided Purchaser or Parent, during the Parent Cure Period, continues to exercise commercially reasonable efforts to cure such inaccuracy or breach;
(cf) by Purchaser if (i) there shall have occurred any Material Adverse Effect, or (ii) 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; or
(g) by either Parent Purchaser or the Company Selling Shareholders’ Agent if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingOrder, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Contemplated Transactions.
Appears in 1 contract
Termination Events. This Agreement may by notice be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):terminated:
(a) by mutual written consent duly authorized by either Seller or Buyer at any time if (i) any Governmental Entity which must grant a requisite regulatory approval has denied approval of the boards Contemplated Transactions, requested that an application submitted for a requisite regulatory approval be withdrawn, or notified or advised any party that such Governmental Entity will not grant (or intends to rescind or revoke if previously approved) any requisite regulatory approval with respect to the Contemplated Transactions, or (ii) any Governmental Entity imposes a condition in connection with approval of directors the Contemplated Transactions which, in the good faith judgment of Parent and Seller or Buyer, will materially impair the Company;ability of Buyer to complete the Contemplated Transactions; or (iii) any Governmental Entity of competent jurisdiction shall have issued a final nonappealable order enjoining or otherwise prohibiting the consummation of the Contemplated Transactions; provided, however, that no party shall have the right to terminate this Agreement pursuant to this Section 10.1(a) if the denial or order referred to above shall be due to the failure of the party seeking to terminate this Agreement to perform or observe any of its covenants or agreements set forth herein; or
(b) by either Parent Buyer or the Company Seller at any time, if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of any material representation, warranty or obligation contained in this Agreement;Agreement has been committed by the other party and such breach has not been cured as permitted hereby or waived; or
(c) (i) by either Parent Buyer at any time if any of the conditions to Buyer’s obligation to complete the Closing specified in Sections 7 or 9 have not been satisfied as of the Company Closing Date or if satisfaction of such a court condition is or becomes impossible (other than through the failure of competent jurisdiction Buyer to comply with their obligations under this Agreement) and Buyer has not waived such condition on or before the Closing Date; or (ii) by Seller at any time, if any of the conditions to Seller’s obligation to complete the Closing specified in Sections 8 or 9 have not been satisfied as of the Closing Date or if satisfaction of such a condition is or becomes impossible (other Governmental Body shall have issued a final than through the failure of Seller to comply with its obligations under this Agreement) and nonappealable order, decree Seller has not waived such condition on or ruling, or shall have taken any other action, having before the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;Closing Date; or
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments mutual consent of Buyer and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted Seller at any adjournment or postponement thereof) by the Required Company Stockholder Approvaltime; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) by either Parent Buyer or the Company Seller on or after December 30, 2010, if the Parent Stockholders’ Meeting Closing has not occurred for any reason (including other than through the failure of any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right party seeking to terminate this Agreement to comply fully with its obligations under this Section 9.1(eAgreement) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action on or failure to act of Parent and before such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreementdate, or if any representation or warranty of Parent or Merger Sub set forth such later date as the parties may agree in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)writing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Royal Bancshares of Pennsylvania Inc)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption The occurrence of this Agreement by the Company’s stockholders and whether before or after approval any of the issuance following (without the need for the taking of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):any action) shall be a “Termination Event”:
(a) by mutual Upon the effective date of the Acceptable Plan or a written consent duly authorized by agreement among the boards of directors of Parent Debtors and the CompanyRequired Consenting Secured Parties terminating this Support Agreement;
(b) Upon entry of an order by either Parent any court of competent jurisdiction or other competent governmental or regulatory authority making illegal or otherwise restricting, preventing or prohibiting the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause consummation of the failure of Restructuring Transactions contemplated by the Merger to occur on Acceptable Plan or before such date and such action or failure to act constitutes a breach of this Support Agreement;
(c) Upon filing of any motion or other pleading by either Parent one or more of the Debtors seeking the entry of an order, or upon entry of an order, by any court of competent jurisdiction authorizing the sale of all or substantially all of the Debtors’ assets pursuant to section 363 of the Bankruptcy Code or otherwise;
(d) The occurrence of any breach of this Support Agreement by any of the Parties (to the extent not otherwise cured or waived in accordance with the terms hereof); provided, that if any Party (other than any Plan Debtor) shall breach its obligations pursuant to this Support Agreement, the Termination Date arising as a result of such act or omission shall apply only to such Party and this Support Agreement shall otherwise remain in full force and effect with respect to the Debtors and all such remaining Parties;
(e) On the date that any Plan Debtor withdraws the Acceptable Plan, publicly announces its intention not to support the Acceptable Plan or files any plan of reorganization or liquidation and/or disclosure statement that is not consistent with the Acceptable Plan or Acceptable Disclosure Statement, respectively, or publicly announces its support for any such inconsistent plan and/or disclosure statement, gives the notice described in Section 2.1(a)(1)(iii) hereof, or otherwise evinces an intention not to proceed with the Acceptable Plan or to proceed with any alternative plan or form of transaction;
(f) On the date of entry of any order in the Chapter 11 Cases terminating the Plan Debtors’ exclusive right to file a plan or plans of reorganization pursuant to Section 1121 of the Bankruptcy Code; provided that such order is not the result of a motion filed by any Consenting Secured Party;
(g) On the date any of the Chapter 11 Cases shall be dismissed or converted to a chapter 7 case, or a chapter 11 trustee with plenary powers, a responsible officer, or an examiner with enlarged powers relating to the operation of the businesses of the Debtors (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) shall be appointed in any of the Chapter 11 Cases or the Company Debtors shall file a motion or other request for such relief;
(h) On the date of either (1) a filing by any Debtor of any motion, application or adversary proceeding challenging the validity, enforceability, perfection or priority of or seeking avoidance of the liens securing the obligations referred to in the Credit Agreement, the Indenture and the collateral documents related thereto (collectively, the “Secured Obligations”) or any other cause of action against and/or with respect to the Secured Obligations, the prepetition liens securing such Secured Obligations and the Consenting Secured Parties (or if the Debtors support any such motion, application or adversary proceeding commenced by any third party or consent to the standing of any such third party) or (2) the entry of an order of the Bankruptcy Court providing relief against the interests of any Consenting Secured Party with respect to any of the foregoing causes of action or proceedings;
(i) Upon any material adverse change regarding the feasibility of the Acceptable Plan arising on or after the Effective Date of this Support Agreement, including, without limitations, the assertion of material contingent and/or unliquidated liabilities, as determined by the Required Consenting Secured Parties in their reasonable discretion;
(j) Upon the amendment, modification of, or the filing of a pleading by any of the Plan Debtors that seeks to amend or modify the Acceptable Plan, the Acceptable Disclosure Statement or any documents related to the Acceptable Plan or Acceptable Disclosure Statement, notices, exhibits or appendices, which amendment, modification or filing is inconsistent with this Support Agreement and not otherwise consented to by the Required Consenting Secured Parties;
(k) Upon failure of the Debtors to commence the Chapter 11 Cases on or before 11:59 p.m. (New York City time) on February 18, 2013;
(l) 11:59 p.m. (New York City time) on the fifth (5th) Business Day after the Petition Date, unless prior thereto the Bankruptcy Court enters an interim order in the Chapter 11 Cases of the Debtors under, inter alia Sections 105, 361, 362, 363 and 364 of the Bankruptcy Code in form and substance satisfactory to the Required Consenting Secured Parties, authorizing the Debtors to incur postpetition financing and use cash collateral, granting adequate protection to the prepetition Secured Parties, and scheduling a final hearing pursuant to Bankruptcy Rule 4001(B) (the “Interim DIP Order”);
(m) 11:59 p.m. (New York City time) on the fortieth (40th) day after the date of entry of the Interim DIP Order, unless prior thereto the Bankruptcy Court enters a final order in the Chapter 11 Cases of the Debtors under, inter alia Sections 105, 361, 362, 363 and 364 of the Bankruptcy Code in form and substance satisfactory to the Required Consenting Secured Parties, authorizing the Debtors to incur postpetition financing and use cash collateral and granting adequate protection to the prepetition Secured Parties (the “Final DIP Order” and together with the Interim DIP Order, the “DIP Orders”);
(n) Upon the entry of an order by a court of competent jurisdiction reversing, modifying, amending, staying or other Governmental Body shall have issued a final and nonappealable order, decree vacating either of the Interim DIP Order or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the MergerFinal DIP Order;
(do) by either Parent or 11:59 p.m. (New York City time) on the Company if (i) date of the Company Stockholders’ Meeting (including any adjournments occurrence of an “Event of Default” under, and postponements thereof) shall have been held and completed as such term is defined in, the DIP Credit Agreement and the Company’s stockholders shall have taken a final vote acceleration of the obligations thereunder;
(p) 11:59 p.m. (New York City time) on a proposal to adopt this Agreementthe date that is 25 days after the Petition Date, and (ii) this Agreement if the Plan Debtors shall not have been adopted at filed the Acceptable Plan and the Acceptable Disclosure Statement with the Bankruptcy Court on or before such time;
(q) 11:59 p.m. (New York City time), on the date that is 75 days after the Petition Date, unless the Bankruptcy Court has entered an order, in form and substance satisfactory to the Required Consenting Secured Parties, approving the Acceptable Disclosure Statement pursuant to Section 1125 of the Bankruptcy Code on or before such time;
(r) 11:59 p.m. (New York City time), on the date that is 15 days following entry of the order approving the Acceptable Disclosure Statement pursuant to Section 1125 of the Bankruptcy Code, unless prior thereto the Company Stockholders’ Meeting commences the solicitation of acceptances of the Acceptable Plan;
(and s) 11:59 p.m. (New York City time), on July 5, 2013, if the Plan Debtors shall not have been adopted at any adjournment filed with the Bankruptcy Court on or postponement thereof) before such time a supplement to the Acceptable Plan containing documents in form and substance reasonably satisfactory to the Required Consenting Secured Parties as contemplated by the Required Company Stockholder Approval; provided, however, that Term Sheet (the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement”Acceptable Plan Supplement“);
(et) by either Parent 11:59 p.m. (New York City time), on July 15, 2013, unless the Bankruptcy Court has entered the Confirmation Order on or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and before such action or failure to act constitutes a material breach by Parent of this Agreementtime;
(fu) by 11:59 p.m. (New York City time) on July 31, 2013, unless the Company “effective date” of the Acceptable Plan has occurred prior thereto;
(v) Any of the Lender Protections are not approved in the Interim DIP Order or the Final DIP Order of if such protections or any of the other adequate protection provided to the Consenting Lender is unwound or otherwise successfully challenged at any time prior to the approval after entry of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredsuch interim or final order;
(gw) The non-payment of any accrued, unpaid and ongoing expenses incurred by Parent the Consenting Secured Parties in connection with the Restructuring Transactions and any agreements related thereto in accordance with section 9.12 of this Support Agreement; or
(at any time prior x) 11:59 p.m. (New York City time), on the date that is 60 days after the Petition Date, unless the Bankruptcy Court has entered an order establishing bar dates for submitting proofs of claim and requests for payment pursuant to the approval section 503(b)(9) of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Bankruptcy Code.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):
(a) by mutual written consent duly authorized This Agreement shall automatically terminate upon the occurrence of any of the following events (the “Termination Events”), unless such automatic termination is waived in writing by the boards of directors of Parent Requisite Consenting Lenders and the Company;
, within three (b3) by either Parent or days of the Company if occurrence of such event, and in accordance with the Merger requirements of Section 4, in which case the Termination Event so waived shall be deemed not to have been consummated by August 15occurred, 2007this Agreement shall be deemed to continue in full force and effect, and the rights and obligations of the Parties hereto shall be restored, subject to any modification set forth in such waiver; provided, however, that the right concurrence of the Company and TIL, but not of any of the Requisite Consenting Lenders, shall be required with respect to terminate the waiver of any automatic termination to the extent that such automatic termination occurs pursuant to paragraphs (vi), (vii), or (viii) below; provided, further, that the concurrence of Requisite Consenting Lenders, but not Worldwide, the Company or TIL, shall be required with respect to the waiver of any automatic termination to the extent that such automatic termination occurs pursuant to any of paragraphs (v) or (x) below.
(i) In the event the Restructuring has not been completed by May 10, 2013, provided, however, if the transactions contemplated by the PIK Restructuring Documents are not consummated May 10, 2013, but the restructuring transactions contemplated by the Restructuring Documents (other than the PIK Restructuring Documents) have closed by May 10, 2013, this Agreement under this Section 9.1(b) shall may not be available terminated pursuant to any party whose action or failure this subsection prior to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementJuly 26, 2013;
(cii) by either Parent A court of competent jurisdiction shall enter a final, non-appealable judgment or the Company if a order declaring this Agreement or any material portion hereof to be unenforceable;
(iii) Any governmental authority, including any court of competent jurisdiction or other Governmental Body shall regulatory authority, grants relief that is inconsistent with this Agreement in any material respect (with such amendments and modifications as have issued been effected in accordance with the terms hereof) or enjoining the consummation of a final and nonappealable order, decree or ruling, or shall have taken any other action, having material portion of the effect of permanently restraining, enjoining or otherwise prohibiting the MergerRestructuring;
(div) The entry of an order by either Parent any court of competent jurisdiction invalidating or disallowing any portion of the Claims or subordinating or limiting, as applicable, the enforceability, priority, amount or validity of any portion of the Claims;
(v) Any material breach of this Agreement by the Company or Worldwide; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by such Party of such breach from the Requisite Consenting Lenders of such breach (provided that the none of the Initial Consenting Lenders or Requisite Consenting Lenders are then in material breach of its obligations hereunder), and such breach, if capable of being cured, remains uncured for a period of five (i5) business days;
(vi) Any material breach of this Agreement by a Consenting Lender; provided that such Termination Event shall be deemed to have occurred only upon receipt of written notice by the Consenting Lenders of such breach from either the Company Stockholders’ Meeting or Worldwide (including provided that the Party giving notice of a breach by a Consenting Lender is not itself in material breach of its obligations hereunder) and such breach, if capable of being cured, remains uncured for a period of five (5) business days;
(vii) Immediately upon delivery by any adjournments of the Company or Worldwide (collectively, the “Notifying Parties” and postponements thereofeach, a “Notifying Party”) to the Consenting Lenders of notice (in accordance with Section 27 below) of its intent, in the exercise of its fiduciary duties (set forth in Section 18 below) to take any action that is otherwise prohibited hereunder or to refrain from taking any action that is required hereunder (a “Fiduciary Out Notice”); provided, however that no Notifying Party shall have been held and completed and or incur any liability under this Agreement or otherwise on account of, arising out of or otherwise relating to any other Notifying Party’s issuance of a Fiduciary Out Notice;
(viii) Following good faith, commercially reasonable efforts, the Board of Directors of the Company’s stockholders direct subsidiary, Travelport Limited, shall have taken not received by March 11, 2013, fairness and solvency opinions from a final vote on nationally recognized valuation firm for those entities to which a proposal fairness and/or solvency opinion is reasonably requested to adopt this Agreement, consummate the Restructuring and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (in form and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available substance reasonably acceptable to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act and sufficient under applicable law, in each case, for such purpose;
(ix) By mutual written consent of the Company and such action the Requisite Consenting Lenders;
(x) The occurrence of an Event of Default under the PIK Credit Agreement (as defined therein), other than as a result of the Company’s entry into this Agreement or failure to act constitutes a material breach by the Company taking of any actions required or contemplated by, and consistent with, the terms of this Agreement;; or
(exi) by either Parent or The Senior Noteholder RSA is no longer in full force and effect for at least 33%, collectively, of the Company if the Parent Stockholders’ Meeting holders of (including any adjournments 1) Travelport LLC’s 9 7/8% Senior Dollar Fixed Rate Notes due 2014, Senior Dollar Floating Rate Notes due 2014 and postponements thereofSenior Euro Floating Rate Notes due 2014 and (2) Travelport LLC’s and Travelport Inc.’s 9% Senior Notes due 2016.
(b) Xxxxxx, Xxxxxx & Co., Q5-R5 Trading, Ltd. and R2 Top Hat, Ltd. shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate withdraw their consent to this Agreement under if TIL is in material breach of this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent Agreement and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) is not being contested by the Company.
(c) Upon a termination of this Agreement in accordance with this Section 8, upon a breach no Party hereto shall have any continuing liability or obligation to any other Party hereunder and the provisions of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurateno further force or effect, except for the provisions in either case Sections 10 and 11 and 13 through 25, each of which shall survive termination of this Agreement; provided that no such that termination shall relieve any Party from liability for its breach or non-performance of its obligations hereunder prior to the conditions date of such termination (other than as set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(hclauses (a)(vii) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (iia)(viii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectiveabove).
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to and the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):------------------ transactions contemplated hereby may be abandoned:
(a) by mutual written consent duly authorized at any time by the boards mutual agreement of directors of Parent Insight and the CompanyAT&T;
(b) by either Parent Insight or the Company AT&T at any time (if such party itself is not then in material breach of any of its covenants, agreements or other obligations contained in this Agreement), if the Merger other is in material breach or default of any of its covenants, agreements or other obligations herein, or if any of its representations herein if specifically qualified by materiality, is not true in all respects or, if qualified by materiality, is not true in all material respects when made or when otherwise required by this Agreement to be true, if the non-breaching party provides the breaching party with prompt written notice that provides a reasonably detailed explanation of the facts and circumstances surrounding such breach or default; provided that such party shall not have been consummated by August 15, 2007; provided, however, that the no right to terminate if (i) the breaching Party cures such breach or default within 30 days after its receipt of such written notice, unless such breach or default cannot be cured within such 30-day period; or (ii) the breach or default is capable of being cured prior to the one year anniversary of the -44- date of this Agreement under this Section 9.1(b(the "Outside Closing Date") shall not be available and the breaching party commences to any party whose cure such breach or default within such 30-day period and diligently continues to take all action reasonably necessary to cure such breach or failure default prior to act has been a principal cause of the failure of the Merger to occur on or before such date Outside Closing Date and such action breach or failure default is cured prior to act constitutes a breach of this Agreement;the Outside Closing Date; or
(c) by either Parent Insight or AT&T upon written notice to the Company other given not earlier than the Outside Closing Date, if any of the conditions to its obligations set forth in Sections 8.1 and 8.2, respectively, are not satisfied on or before the Outside Closing Date for any reason other than a court material breach or default by the terminating party of competent jurisdiction its respective covenants, agreements or other Governmental Body shall have issued a final and nonappealable order, decree or rulingobligations under this Agreement, or shall have taken if any other actionof its representations herein, having the effect of permanently restrainingif specifically qualified by materiality, enjoining is not true in all respects or, if qualified by materiality, is not true in all material respects when made or when otherwise prohibiting the Mergerrequired by this Agreement to be true;
(d) by either Parent Insight or AT&T if the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal Contribution Agreement is terminated prior to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalclosing thereunder; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;or
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth as otherwise provided in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Insight Communications Co Inc)
Termination Events. This Agreement may be terminated prior to Any of the Effective Time (whether before following acts or after adoption of occurrences shall constitute a Termination Event under this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders(ea ch, unless otherwise specified belowa “Ter mination Event “):
(a) by mutual written consent duly authorized by the boards of directors of Parent OHC shall fail to observe or perform in any material respect any material covenant or agreement required to be performed thereby under this Agreement and the Companycontinuance of such default or breach for a period of fifteen (15) calendar days after there has been given to OHC a written notice specifying the default or breach and requiring it to be remedied;
(b) Any representation, warranty or statement of OHC in this Agreement (i) which is not qualified by either Parent materiality or material adverse effect shall prove to be incorrect in any material respect as of the Company if the Merger date on which such representation, warranty or statement is made or (ii) which is qualified by materiality or material adverse effect shall not provide to have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause incorrect as of the failure of the Merger to occur date on which such representation, warranty or before such date and such action or failure to act constitutes a breach of this Agreementstatement is made;
(c) by either Parent OHC shall be or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or rulingbecome insolvent, or admit in writing its inability to pay its debts as they mature, or make a general assignment for the benefit of creditors; or OHC shall have taken apply for or consent to the appointment of any other actionreceiver, having trustee, or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the effect application or consent of permanently restrainingOHC and shall not be discharged within sixty (60) days of appointment; or OHC shall institute (by petition, enjoining application, answer, consent or otherwise prohibiting otherwise) any insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the Mergerlaws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against OHC; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of OHC and such shall remain unstayed or undismissed for sixty (60) days;
(d) by either Parent A voluntary petition naming OHC, as debtor, is filed under the United States Bankruptcy Code, or an involuntary petition naming OHC, as debtor, is filed under the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company United States Bankruptcy Code and such action or failure to act constitutes a material breach by the Company of this Agreementinvoluntary petition shall remain undismissed for sixty (60) days;
(e) by either Parent OHC shall liquidate, dissolve, terminate or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock suspend its business operations or otherwise fail to operate its business in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreementordinary course;
(f) by the Company (at any time prior to the approval Any of the issuance following shall occur: (i) entry of Parent Common Stock a court order which enjoins, restrains or in any way prevents OHC from conducting all or any material part of its business affairs in the Merger by ordinary course of business, or (ii) withdrawal or suspension of any license required for the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;conduct of any material part of the business of OHC; or
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)OHC terminates its management services hereunder.
Appears in 1 contract
Termination Events. This Agreement may be unilaterally terminated prior to the Effective Time (whether before or after adoption of this Agreement without penalty by the Company’s stockholders and whether before Licensee or after approval the Licensor (in each case a "Terminating Party") in the manner set forth in Section 16.3 if there is the occurrence of any of the issuance of Parent Common Stock circumstances or events described below with respect to (i) if the Terminating Party is the Licensee, the Licensor, and (ii) if the Terminating Party is the Licensor, the Licensee (in the Merger by Parent’s stockholderseach case, unless otherwise specified belowa "Terminated Party"):
(a) by mutual written consent duly authorized by any regulatory or court order is issued under or pursuant to any applicable law of any jurisdiction in which the boards Terminated Party conducts a substantial portion of directors its business, which operates to prevent the Terminated Party from performing its obligations under this Agreement in a material respect and such order is not stayed or rendered ineffective within 90 days of Parent its issuance, or a Third Party encumbrancer takes possession of all or a substantial part of the properties and assets of the CompanyLicensee, or if a distress or execution or any similar process is levied or enforced against the Licensee which affects such properties and assets and remains unsatisfied for 90 days;
(b) any order to cease or suspend trading in any securities of the Licensee, or prohibiting or restricting the distribution of any of the Licensee's shares is made by either Parent any securities regulatory authority, including the TSX, NASDAQ or any other competent authority in any jurisdiction where the Licensee's is a reporting issuer (or the Company if equivalent thereof) provided that: (i) the Merger delisting of the securities of the Licensee from the NASDAQ national or small capital markets shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement constitute a ground of termination under this Section 9.1(b16.2 if the listing of such securities on another recognized exchange is maintained; (ii) shall such order is not be available to any party whose action made as a result of a take-over bid or failure to act another acquisition of a controlling interest in the Licensee's by a Third Party; (iii) such order has been effective for a principal cause period in excess of 30 days and has not been stayed or otherwise rendered ineffective; and (iv) the Terminating Party has served a notice of termination to the Licensee in accordance with Section 16.3 within 90 days of the failure issuance of the Merger to occur on or before such date order and while such action or failure to act constitutes a breach of this Agreementorder was in effect;
(c) if the Terminated Party is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by either Parent reason of Force Majeure for a period longer than 180 days or the Company 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 the MergerTerminated Party has failed to meet its obligations under Article 15;
(d) by either Parent or in the Company if (i) event that, the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall performance thresholds set forth in Section 7.4 are not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) met by the Required Company Stockholder Approval; providedLicensee, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been unless such non performance is caused by the action or failure to act a default of the Company Licensor hereunder and Licensor has been notified of such action or failure to act constitutes a material breach by default and has not cured the Company of this Agreementsame in accordance with the terms and conditions set forth hereunder;
(e) if the Terminated Party institutes any proceeding or takes any action or executes any agreement to authorize its participation in or commencement of any proceeding, or if any bona fide proceeding is commenced by either Parent a Third Party against or affecting the Terminated Party and such proceeding is not discharged within 30 days from the commencement thereof, seeking (i) to adjudicate it a bankrupt or insolvent, (ii) liquidation, dissolution, winding-up, reorganization, arrangement, protection, relief or composition of it or any of its property or debt, (iii) a proposal with respect to it under any law relating to bankruptcy, insolvency, liquidation, reorganization or compromise of debts or other similar laws (including, without limitation, the Companies' Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Winding-Up and Restructuring Act (Canada) or any similar statute of any jurisdiction, including any statute governing the existence of the Terminated Party) or (iv) the appointment of a receiver, trustee, manager, liquidator, interim receiver or manager, agent, custodian or other official with similar powers or functions for it or for any substantial part of its properties and assets (including without limitation, with respect to the Licensee, the Production Facility) and, with respect to the Licensor , the Cascade Process or the Company if intellectual property related to the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance production of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder ApprovalResin); provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;or
(f) in any other circumstances not covered by subsections (a) to (e) of this Section 16.2, if, while the Company (at any time prior to the approval of the issuance of Parent Common Stock Terminating Party is in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth compliance in all material respects with its obligations under this Agreement, or if the Terminated Party defaults in any representation or warranty material respect in the performance of Parent or Merger Sub set forth in its obligations under this Agreement shall have become inaccurate, in either case such and fails to cure that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a default within 30 day period commencing upon delivery of days following written notice thereof from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Terminating Party.
Appears in 1 contract
Samples: License Agreement (Hemosol Corp)
Termination Events. This Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated prior to and the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):transactions contemplated herein may be abandoned:
(a) by mutual written consent duly authorized by of the boards of directors of Parent and the CompanyParties;
(b) after the Outer Date, by either Parent or any Party by notice to the Company other Party if the Merger Closing shall not have been consummated by August 15, 2007on or prior to the Outer Date; provided, however, that the right to terminate this Agreement under this Section 9.1(b8.1(b) shall not be available to any party Party whose action or failure or whose Affiliate’s action or failure to perform any of its obligations under this Agreement, or failure to act in good faith, has been a the principal cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date date; and provided, further, that neither Purchaser nor Seller shall have the right to terminate this Agreement pursuant to this Section 8.1(b) in the event the other party has initiated Proceedings to specifically enforce this Agreement while such action or failure to act constitutes a breach of this AgreementProceedings are still pending;
(c) by either Parent or any Party prior to the Company Closing by notice to the other Party, if a final, non-appealable Order enjoining or otherwise prohibiting consummation of the transactions contemplated by this Agreement has been issued after the date hereof by any federal or state court of competent in the United States having jurisdiction or other Governmental Body shall have issued a final and nonappealable (unless such order, decree or rulingruling has been withdrawn, or shall have taken any other action, having the effect of permanently restraining, enjoining reversed or otherwise prohibiting the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalmade inapplicable); provided, however, that the right Party seeking to terminate this Agreement under pursuant to this Section 9.1(d8.1(c) shall have complied with Section 5.3 hereunder to prevent the entry of and to remove or avoid the imposition of such Order;
(d) by Seller prior to the Closing, upon written notice to Purchaser, if (i) Purchaser shall have materially breached any of the covenants or agreements contained in this Agreement to be complied with by Purchaser unless, to the extent such breach is capable of being cured, Purchaser shall have cured such breach within fifteen (15) days of receiving notice from Seller of such breach or (ii) there exists a breach of any representation or warranty of Purchaser contained in this Agreement such that the closing condition set forth in Section 6.2(a) would not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused satisfied and such breach is incapable of being cured by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;Outer Date; or
(e) by either Parent Purchaser prior to the Closing, upon written notice to Seller, if (i) Seller shall have materially breached any of the covenants or agreements contained in this Agreement to be complied with by Seller, Seller Subsidiary, the Company or the Company if Subsidiary unless, to the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) extent such breach is capable of being cured, Seller shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance cured such breach within fifteen (15) days of shares receiving notice from Purchaser of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting such breach or (and shall not have been approved at any adjournment or postponement thereofii) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon there exists a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth Seller contained in this Agreement shall have become inaccurate, in either case such that the conditions closing condition set forth in Section 8.1 or Section 8.2 6.3(a) would not be satisfied as of the time of and such breach or as is incapable of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Outer Date.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before The occurrence of any one or after adoption of this Agreement by the Company’s stockholders and whether before or after approval more of the issuance of Parent Common Stock in the Merger by Parent’s stockholdersfollowing events shall constitute a termination event (hereinafter, unless otherwise specified below):a “Termination Event”) under this Forbearance Extension:
(a) by mutual written consent duly authorized the failure of the Borrower to cause PFG’s Obligations to be repaid as and when required by the boards of directors of Parent Loan Agreement, it being expressly acknowledged and the Companyagreed that TIME IS OF THE ESSENCE;
(b) the filing of a petition for relief by either Parent or against Borrower under the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementUnited States Bankruptcy Code;
(c) by either Parent or the Company if a court failure of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable orderthe Borrower to promptly, decree or rulingpunctually, or shall have taken faithfully perform any other actionmaterial term, having condition, or covenant of this Forbearance Extension or any of the effect of permanently restrainingother documents executed and delivered in connection with this Forbearance Extension (the “Forbearance Extension Documents”) as and when due, enjoining or otherwise prohibiting the Mergerit being expressly acknowledged and agreed that TIME IS OF THE ESSENCE;
(d) by either Parent the occurrence of any Default or Event of Default (other than the Company if (iContinuing Defaults and for the periods specified within said definition) under the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Loan Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment other Loan Document or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreementany Forbearance Document;
(e) any recital, representation or warranty made herein, in any Forbearance Document, or in any report, certificate, financial statement or other instrument or document previously, now or hereafter furnished by either Parent or the Company if the Parent Stockholders’ Meeting (including on behalf of Borrower in connection with this Forbearance Extension or any adjournments and postponements thereof) Forbearance Document, shall prove to have been held and completed and Parent’s stockholders shall have taken a final vote false, incomplete or misleading in any material respect on the issuance date as of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreementwhich it was made;
(f) by Borrower making Special Permitted Payments materially in excess of the Company (at any time prior amounts notified to PFG in connection with this Forbearance Extension or failing to pay third party costs incurred in connection with the Notified Financing, except to the approval extent of any such costs that are the issuance subject of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredgood faith and reasonable dispute;
(g) by Parent (at any time prior Borrower shall fail to provide written notice to PFG evidencing the approval failure or abandonment of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;Notified Financing; or
(h) by a material impairment in the Company, upon a breach perfection or priority of any representation, warranty, covenant PFG’s security interest in the Collateral or agreement on in the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time value of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) Collateral taken as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)whole occurs.
Appears in 1 contract
Termination Events. This Agreement may If any of the following events (each a “Termination Event”) shall have occurred:
(i) Seller shall fail to pay any amount due pursuant to Section 9.1 in accordance with the provisions thereof or to pay any other amount required to be terminated prior paid by Seller and such failure shall continue unremedied for a period of five (5) Business Days; or
(ii) Seller shall fail to the Effective Time observe or perform any covenant or agreement applicable to it contained herein (whether before or after adoption other than as specified in paragraph (i) of this Agreement by the Company’s stockholders and whether before or after approval Section 11.1); provided that, no such failure shall constitute a Termination Event under this paragraph (ii) unless such failure shall continue unremedied for a period of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):30 consecutive days; or
(aiii) any representation, warranty, certification or statement made or deemed made by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent Seller in this Agreement or the Company if the Merger in any statement, record, certificate, financial statement or other document delivered pursuant to this Agreement shall not prove to have been consummated by August 15incorrect in any material respect when made or deemed made, 2007; provided, however, provided that the right to terminate this Agreement under this Section 9.1(b) a Termination Event shall not be available deemed to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement occurred under this Section 9.1(dparagraph (iii) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, based upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 5.19 if Seller shall have complied with the provisions of Section 9.1 in respect thereof; or
(A) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of Seller in an involuntary case under federal or state bankruptcy, insolvency or similar law , which decree or order is not stayed or any other similar relief shall be granted under any applicable federal or state law now or hereafter in effect and shall not be stayed; (B) (I) any involuntary case is commenced against Seller under any federal or state bankruptcy, insolvency or similar law now or hereafter in effect, a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Seller, or over all or a substantial part of the property of Seller, shall have been entered, an interim receiver, trustee or other custodian of Seller for all or a substantial part of the property of Seller is involuntarily appointed, a warrant of attachment, execution or similar process is issued against any substantial part of the property of Seller, and (II) any event referred to in clause (B)(I) above continues for 60 days unless dismissed, bonded or disclosed; (C) Seller shall at its request have a decree or an order for relief entered with respect to it or commence a voluntary case under any federal or state bankruptcy, insolvency or similar law now or hereafter in effect, or shall consent to the entry of a decree or an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such Insolvency Law, consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; (D) the making by Seller of any general assignment for the benefit of creditors; (E) the inability or failure of Seller generally to pay its debts as such debts become due; or (F) the board of directors of Seller authorizes action to approve any of the foregoing; or
(v) there shall have occurred an Event of Default set forth in Section 4.01 of the Indenture; or
(vi) a notice of Encumbrance shall have been filed by the Pension Benefit Guaranty Corporation against Seller under Section 412(n) of the Code or Section 8.2 would not be satisfied as 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 time Code or Section 302(f) of ERISA applies unless there shall have been delivered to the Indenture Trustee proof of release of such breach Encumbrance; or
(vii) any Encumbrance in an amount equal to or as greater than $500,000 has been asserted against or imposed on, any real or personal property of Seller pursuant to the time such representation Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(1), or warranty any equivalent or comparable state law, relating to or arising from the costs of, response to, or investigation, remediation or monitoring of, any environmental contamination resulting from the current or past operations of Seller; or
(viii) a Federal tax notice of Encumbrance, in an amount equal to or greater than $500,000, shall have become inaccuratebeen filed against Seller unless there shall have been delivered to the Indenture Trustee proof of release of such Encumbrance then, provided that if (A) in the case of any Termination Event described in paragraph (iv), (v), (vi), (vii) or (viii) above the obligation of Buyer to purchase Mortgage Loans from Seller shall thereupon automatically terminate without further notice of any kind, which is hereby waived by Seller, and (B) in the case of any other Termination Event, so long as such inaccuracy in ParentTermination Event shall be continuing, Buyer or the Indenture Trustee may terminate Buyer’s or Merger Sub’s representations and warranties or breach obligation to purchase Mortgage Loans from Seller by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate written notice to Seller (any termination pursuant to this Section 9.1(h11.1 is herein called an “Early Termination”); provided that in the event of any involuntary petition or proceeding as described in paragraph (iv) as a result above, Buyer shall not purchase Mortgage Loans from Seller unless such involuntary petition or proceeding is dismissed, bonded or discharged within 60 days of the filing of such particular breach petition or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent commencement of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)proceeding.
Appears in 1 contract
Termination Events. This 26.1 The Owner and the Hirer agree that it is a fundamental term and condition of this Agreement may be terminated prior to that none of the Effective Time (whether before or after adoption following events shall occur during the Hire Period and that the occurrence of any of the following events shall constitute a repudiatory breach of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Hirer:
(a) by mutual written consent duly authorized by if any Relevant Party fails to pay any Rental or other sum payable under the boards Relevant Documents on its due date or in respect of directors of Parent and sums payable on demand, fails to pay any other sum payable on demand under the Company;Relevant Documents within five (5) Business Days after demand; or
(b) by either Parent if any Relevant Party fails or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right neglects to terminate this Agreement under this Section 9.1(b) shall not be available to observe or perform any party whose action or failure to act has been a principal cause of the failure terms and conditions of the Merger to occur on Relevant Documents in a way which the Owner regards as material (otherwise than as mentioned in Clause 26.1(a)) and in the case of a failure or before non-observance which is capable of remedy such date and such action failure or failure to act constitutes a breach non-observance shall continue unremedied for fourteen days after the Owner becomes aware of this Agreement;it; or
(c) by either Parent if any Relevant Party shall do or allow to be done or omit to do any act or thing which act or omission in the Company if a court opinion of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or ruling, or shall have taken the Owner may materially jeopardise any other action, having of its rights in relation to the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;Ship; or
(d) if any statement, representation or warranty made by either Parent any Relevant Party inducing the Owner to enter into the Relevant Documents or made on the part of any Relevant Party in the Relevant Documents or in any certificate, statement or notice delivered or made pursuant to the Relevant Documents shall be or become incorrect in any respect; or
(e) if any process of execution, diligence or distress shall be levied on executed against or sued out against the Ship or any goods or other property belonging to any Group Company and shall not be discharged within seven days; or
(f) if an order shall be made or a resolution passed for the winding up (other than by way of a members' voluntary winding up for the purpose of a scheme of amalgamation or reconstruction or for any other purpose in any case previously approved by the Owner) of any Group Company; or
(g) if any Group Company shall convene a meeting for the purpose of making or shall make a composition or arrangement with or any assignment or assignation for the benefit of its creditors; or
(h) if an encumbrancer shall take possession or a receiver or liquidator shall be appointed in respect of whole or any part of the assets or undertaking of any Group Company; or
(i) if any Group Company shall be unable to pay its debts as such expression is defined in Section 123 of the Insolvency Act 0000; or
(j) if any indebtedness or obligation of any Group Company (other than an indebtedness or obligation of less than US$500,000) shall become due and payable prior to the specified maturity date thereof or any agreement for the hiring of machinery or plant to a Group Company or any material hire purchase or conditional sale agreement to a Group Company shall be terminated by reason of an event of default thereunder or any indebtedness of a Group Company in connection with any such agreement shall not be paid when due or any Group Company shall not meet its obligations under any guarantee or indemnity when properly called upon to do so; or
(k) if the Hirer shall cease to be a Subsidiary (directly or indirectly) of Eagle Geophysical Inc. without the Owner's prior written approval; or
(l) if any security constituted by any mortgage or charge created by any Group Company including the security constituted by the Account Assignment shall become enforceable and the mortgagee or the Company chargee shall take steps to enforce the same unless any such security has become illegal or unenforceable in accordance with clause 32; or
(m) if any event or proceedings in any jurisdiction which is or are analogous to any of the events or proceedings referred to in sub-clauses (e), (f), (g), (h), (i) or (l) of this Clause 26.1 shall occur or be commenced in relation to any Group Company; or
(n) if the Hirer, the Surety or either of the Corporate Guarantors are in breach of any other agreement with or obligation in favour of the group of companies of which the Owner forms part ("OWNER GROUP") for a period in excess of any applicable grace period under the terms of such agreement or obligation or (if none) for 14 days; or
(o) if the Hirer, the Surety or either of the Corporate Guarantors dispose of all or a substantial part of their assets otherwise than for full consideration in money or money's worth payable at the time of such disposal and otherwise than to another Group Company, without the prior written consent of the Owner, whether such disposal is effected in one transaction or a series of transactions whether or not related; or
(p) If:
(i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Hirer, the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment Surety or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act either of the Corporate Guarantors or any other Group Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior reduce to a substantial extent the approval scale of the issuance of Parent Common Stock its business now carried on by such companies respectively or if there shall be a substantial reduction in the Merger scale on which the businesses now carried on by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
Group Companies (g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) taken as a result of such particular breach whole) are carried on in each case as compared with the scale on which the same is or inaccuracy until are carried on at the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective)date hereof; and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Owner acting reasonably shall certify that in its opinion in all the circumstances the risk to the Owner in connection with the Relevant Documents has materially increased; or
(q) if after the date hereof and without the prior written consent of the Owner (such consent not to be unreasonably withheld or delayed) any of either of the Corporate Guarantors, the Surety or the Hirer or of any Subsidiary (directly or indirectly) of the Hirer ceases to be a wholly owned subsidiary of Eagle Geophysical Inc; or
(r) if any judgment or order is made against any Group Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall and is not terminate pursuant to this Section 9.1(i) as a result of such particular breach stayed or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)complied with within seven days.
Appears in 1 contract
Termination Events. This Without prejudice to other remedies that 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 Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) mutually, by mutual the written consent duly authorized by of the boards Company and a Majority in Interest of directors of Parent and the CompanyInvestors;
(b) by either Parent or the Company or a Majority in Interest of the Investors by giving written notice to the other party or parties if the Merger Closing shall not have been consummated occurred prior to August 31, 2003, unless extended by August 15, 2007written agreement of such parties; provided, however, that the party seeking termination pursuant to this subsection (b) is not in default or material breach hereunder and provided, further, that the right to terminate this Agreement under this Section 9.1(bsubsection (b) shall not be available to any party whose action or failure to act fulfill any obligation under this Agreement has been a principal the cause of of, or resulted in, the failure of the Merger Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreementdate;
(c) by either Parent or the Company or a Majority in Interest of the Investors by giving written notice to the other party or parties if a court of competent jurisdiction or other Governmental Body any governmental entity shall have issued a final an injunction or other ruling prohibiting the consummation of any of the transactions contemplated by this Agreement and nonappealable order, decree such injunction or ruling, other ruling shall not be subject to appeal or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Mergerbecome final and unappealable;
(d) by either Parent or the Company if (i) or a Majority in Interest of the Company Investors in the event that the Required Stockholder Approval is not obtained at the Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this AgreementMeeting;
(e) by either Parent or the Company or a Majority in Interest of the Investors, if (i) the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) Company shall have been held and completed and Parent’s stockholders entered into an agreement to consummate a Superior Proposal, (ii) the Board of Directors shall have taken recommended to the stockholders of the Company a final vote on Superior Proposal or (iii) the issuance Board of shares of Parent Common Stock Directors shall have withdrawn, modified or qualified in any manner adverse to the Merger and Investors or made any public statement inconsistent with the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder ApprovalCompany Recommendation; provided, however, that that, in order for the right to terminate termination of this Agreement under by the Company pursuant to this Section 9.1(eclause (e) shall not to be available to Parent where deemed effective, the failure to obtain the Required Parent Stockholder Approval Company shall have been caused by the action or failure to act complied with all provisions of Parent Sections 8.7 and such action or failure to act constitutes a material breach by Parent of this Agreement8.8;
(f) by a Majority in Interest of the Investors, if (i) the Company shall have materially breached any covenant or obligation in this Agreement and such breach is not cured within ten (at any time prior 10) business days of the date of the delivery to the approval Company by an Investor of a written notice of such breach or (ii) any of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth ’s representations and warranties contained in this Agreement shall have become inaccurateinaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), in either case such that the conditions condition set forth in Section 8.1 or Section 8.2 5.1 would not be satisfied as of the time of such date and such breach or as is not cured within thirty (30) days of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part date of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company by an Investor of a written notice of such breach breach; or
(g) by a Majority in Interest of the Investors, if there shall have occurred an event or inaccuracy and (ii) events which, individually or in the aggregate, constitute a Material Adverse Effect on the Company ceasing and such Material Adverse Effect on the Company continues for at least thirty (30) days after the date of delivery to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as the Company by an Investor of a result written notice of such particular breach or inaccuracy if such breach by Material Adverse Effect on the Company is cured prior to such termination becoming effective)Company.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Rigel Pharmaceuticals Inc)
Termination Events. (a) This Agreement may be terminated on or prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing Date as follows:
(ai) by mutual written consent duly authorized by the boards of directors of Parent and the Companyall parties hereto;
(bii) by either Parent the Sellers holding at least 90% of the Shares and the FMS Shares or Buyer (the Company "NOTIFYING PARTY") if Buyer or Sellers, as the Merger case may be (the "NOTIFIED PARTY"), shall have failed to perform and comply in all material respects with its or their respective agreements and covenants hereunder and, if such failure is reasonably capable of being remedied, such failure to perform or comply shall not have been consummated remedied within thirty (30) days after receipt by August 15the Notified Party of notice in writing from the Notifying Party, 2007; specifying the nature of such failure and requesting that such failure be remedied, provided, however, that the right to Notifying Party may not terminate this Agreement under pursuant to this Section 9.1(bsubsection (ii) shall not be available for an additional thirty (30) days if (x) the Notified Party continues in good faith to any party whose action use its Best Efforts to perform or comply with such agreements and covenants, and (y) such failure to act has been a principal cause perform or comply is reasonably capable of being remedied within such additional thirty (30) day period and in any event prior to the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementClosing;
(ciii) by either Parent Buyer or Sellers holding at least 90% of the Shares and FMS Shares, because of a misrepresentation or breach of warranty (whether or not constituting a Breach Event or Subsequent Development) by Seller(s) or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance case of Parent Common Stock termination by Buyer) or by Buyer (in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereofcase of termination by Sellers) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that would cause the conditions set forth in Section 8.1 9.1 [Accuracy of Representations -Seller] or Section 8.2 would 10.1[Accuracy of Representations -Buyer], as the case may be, to not be satisfied as and, if such failure is reasonably capable of being remedied, such failure to perform or comply shall not have been remedied within thirty (30) days after receipt by the time breaching party of notice in writing from the party seeking to terminate, specifying the nature of such breach or as of failure and requesting that such failure be remedied; provided, that the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then party seeking to terminate may not terminate this Agreement shall not terminate pursuant to this Section 9.1(hsubsection (iii) as a result of such particular breach or inaccuracy until the earlier of for an additional thirty (i30) days if (x) the expiration breaching party continues in good faith to use its Best Efforts to perform or comply with such agreements and covenants, and (y) such failure to perform or comply is reasonably capable of a 30 being remedied within such additional thirty (30) day period commencing upon delivery and in any event prior to the Closing (and the terminating party is not itself in material breach of this Agreement); or
(iv) by Buyer or Sellers holding at least 90% of the Shares and FMS Shares, if the Closing has not occurred by March 31, 2000.
(b) In the event of termination by any party pursuant to Section 11.1(a), written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement thereof shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not promptly be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach given by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent terminating party to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)other party.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized either the Purchaser or the Seller if the Transactions shall not have been consummated by April 15th (the "Termination Date"); provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 8.1 if the failure to consummate the Transactions by the boards Termination Date is attributable to a failure on the part of directors of Parent such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Closing Date, and the CompanySeller shall not be permitted to terminate this Agreement pursuant hereto unless the Seller shall have made any payment required to be made to the Purchaser pursuant to Section 8.4;
(b) by either Parent and the Purchaser or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company Seller if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable non-appealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the MergerTransactions;
(dc) by either Parent the Purchaser or the Company Seller if (i) the Company Stockholders’ Meeting (including any adjournments [Agreement and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement Asset Sale] shall not have been adopted approved at the Company Stockholders’ Shareholders' Meeting (and shall not have been adopted or at any adjournment or postponement thereof) by the Required Company Stockholder Shareholder Approval; provided, however, that the right (i) a party shall not be permitted to terminate this Agreement under pursuant to this Section 9.1(d8.1(c) if the failure to have the [Agreement and Asset Sale] approved by the Required Shareholder Approval is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Closing Date, and (ii) the Seller shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right permitted to terminate this Agreement under pursuant to this Section 9.1(e8.1(c) shall not be available to Parent where unless the failure to obtain the Required Parent Stockholder Approval Seller shall have been caused by made any payment required to be made to the action or failure Purchaser pursuant to act of Parent and such action or failure to act constitutes a material breach by Parent of this AgreementSection 8.4;
(fd) by Parent and the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) Purchaser if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(he) by the Company, upon a breach Purchaser if (i) any of any representation, warranty, covenant or agreement on the part Seller's representations and warranties contained in this Agreement shall be inaccurate as of Parent or Merger Sub set forth in the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if any representation or warranty of Parent or Merger Sub made on such subsequent date), such that the condition set forth in Section 6.1 would not be satisfied, or (ii) any of the Seller's covenants contained in this Agreement shall have become inaccurate, in either case been breached such that the conditions condition set forth in Section 8.1 or Section 8.2 6.2 would not be satisfied satisfied; provided, however, that if an inaccuracy in any of the Seller's representations and warranties 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 and the Seller is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent and the Purchaser may not terminate this Agreement under this Section 8.1(e) on account of such inaccuracy or breach; or
(f) by the Seller if (i) any of the representations and warranties of Parent and the Purchaser contained in this Agreement shall be inaccurate as of the time date of such breach this Agreement, or as of the time such representation or warranty shall have become inaccurateinaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), provided such that the condition set forth in Section 7.1 would not be satisfied, or (ii) if any of the covenants of Parent and the Purchaser 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 such an inaccuracy in Parent’s or Merger Sub’s any of the representations and warranties of Parent and the Purchaser as of a date subsequent to the date of this Agreement or a breach of a covenant by Parent or Merger Sub the Purchaser is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy Purchaser and (ii) Parent or Merger Sub (as applicable) ceasing the Purchaser is continuing to exercise commercially all reasonable efforts to cure such breach (it being understood that inaccuracy or breach, then the Seller may not terminate this Agreement shall not terminate pursuant to under this Section 9.1(h8.1(f) as a result on account of such particular breach inaccuracy or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); andbreach.
(ig) by Parent, upon a breach [By the Purchaser if it is not satisfied with the results of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)its due diligence investigation.]
Appears in 1 contract
Samples: Asset Purchase Agreement (Globetel Communications Corp)
Termination Events. This Without prejudice to other remedies which may be available to the Parties by Law or this Agreement, this Agreement may be terminated prior and the transactions contemplated herein may be abandoned (provided, that with respect to Section 10.1(g), any such termination and abandonment shall be automatic and shall occur immediately upon the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval occurrence of the issuance event specified therein and shall not require any action or notice on the part of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified belowany Party):
(a) by mutual written consent duly authorized by of the boards of directors of Parent and the CompanyParties;
(b) after March 4, 2020 (the “Outside Date”), by either Parent or any Party by notice to the Company other Party if the Merger Closing shall not have been consummated by August 15, 2007on or prior to 5:00 pm Pacific Time on the Outside Date; provided, however, that the right to terminate this Agreement under this Section 9.1(b10.1(b) shall not be available to any party Party whose action failure or whose Affiliate’s failure to act perform any of its representations, warranties, covenants or other obligations under this Agreement has been a principal the primary cause of of, or otherwise primarily resulted in, the failure of the Merger Closing to occur on or before prior to such date and such action or failure to act constitutes a breach of this Agreementdate;
(c) by either Parent or the Company any Party, if a court final, non-appealable Order enjoining or otherwise prohibiting consummation of competent jurisdiction or other the Purchase has been issued by any Governmental Body shall have issued a final and nonappealable Authority (unless such order, decree or rulingruling has been withdrawn, or shall have taken any other action, having the effect of permanently restraining, enjoining reversed or otherwise prohibiting made inapplicable) or any Law has been enacted that would make the MergerPurchase illegal;
(d) by either Parent or the Company Seller if (i) Seller is not in material breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the Company Stockholders’ Meeting (including any adjournments and postponements thereofconditions set forth in Sections 7.2(a) shall have been held and completed and or 7.2(b) incapable of being satisfied on the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, Outside Date and (ii) this Agreement shall Purchaser is in material breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the conditions set forth in Sections 7.3(a) or 7.3(b) incapable of being satisfied on the Outside Date, and such breach is either (A) not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available capable of being cured prior to the Company where Outside Date or (B) if curable, is not cured within the failure earlier of (x) thirty (30) days after the giving of written notice by Seller to obtain Purchaser and (y) three (3) Business Days prior to the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;Outside Date; 73
(e) by either Parent Purchaser if (i) Purchaser is not in material breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereofconditions set forth in Sections 7.3(a) shall have been held and completed and Parent’s stockholders shall have taken a final vote or 7.3(b) incapable of being satisfied on the issuance Outside Date and (ii) Seller is in material breach of shares any of Parent Common Stock its representations, warranties, covenants or other obligations hereunder that renders or would render the conditions set forth in Sections 7.2(a) or 7.2(b) incapable of being satisfied on the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; providedOutside Date, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action breach is either (A) not capable of being cured prior to the Outside Date or failure (B) if curable, is not cured within the earlier of (x) thirty (30) days after the giving of written notice by Purchaser to act constitutes a material breach by Parent of this AgreementSeller and (y) three (3) Business Days prior to the Outside Date;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) Purchaser, if a Parent Triggering Event definitive agreement for an Xxxx Acquisition Transaction shall have occurred;been executed; or
(g) by Parent (at any time automatically if the Supply Agreement is validly terminated prior to the approval of the Merger Closing by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth Purchaser in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)accordance with its terms.
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval If any of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):following events (“Termination Events”) shall occur:
(a) by mutual written consent duly authorized by the boards Borrower or any other Transaction Party shall fail (i) to make when due any payment of directors principal required hereunder or any other Transaction Document or (ii) to make when due any payment of Parent interest, fees or other amounts required hereunder and the Companysuch failure continues for three (3) Business Days;
(b) any Transaction Party shall fail to perform or observe any term, covenant or agreement (i) set forth in Article 6 hereunder, (ii) set forth in Section 5.01(e), (f) and (g) or Section 5.02(a) and such failure shall remain unremedied for five (5) Business Days following the earlier to occur of (A) written notice thereof by either Parent the Administrative Agent to the Servicer or the Company if Borrower, as applicable, or (B) the Merger Servicer’s or the Borrower’s actual knowledge of such failure or (iii) otherwise set forth in the Transaction Documents (other than as referred to clauses (i) and (ii) of this paragraph (b) or otherwise in this Article 7) and such failure shall not have been consummated by August 15, 2007; provided, however, that remain unremedied for ten (10) Business Days following the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger earlier to occur on of (A) written notice thereof by the Administrative Agent to the Servicer or before the Borrower, as applicable, or (B) the Servicer’s or the Borrower’s actual knowledge of such date and such action or failure to act constitutes a breach of this Agreementfailure;
(c) any representation, warranty, certification or statement made by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable orderany Transaction Party in this Agreement, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining Transaction Document or otherwise prohibiting the Mergerin any other document delivered pursuant hereto shall prove to have been incorrect in any material respect when made or deemed made;
(d) by either Parent or the Company if (i) any Transaction Party 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 Company Stockholders’ Meeting benefit of creditors; or any proceeding shall be instituted by or against such Transaction Party 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 similar official for it or for a substantial part of its property (including and in the case of an involuntary proceeding, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any adjournments and postponements thereof) of the foregoing shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreementbe entered), and or (ii) this Agreement any Transaction Party shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at take any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right corporate action to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act authorize any of the Company and such action or failure to act constitutes a material breach by the Company of actions set forth in clause (i) above in this Agreementsubsection (d);
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved As at the Parent Stockholders’ Meeting end of any Calculation Period:
(and i) the average of the Delinquency Ratios for each of the three consecutive Calculation Periods then most recently ended shall not have been approved exceed 3.50% at any adjournment or postponement thereoftime;
(ii) by the Required Parent Stockholder Approvalaverage of the Dilution Ratios for each of the three consecutive Calculation Periods then most recently ended shall exceed 12.00% at any time; provided, however, that or
(iii) the right to terminate this Agreement under this Section 9.1(e) average of the Default Ratios for each of the three consecutive Calculation Periods then most recently ended shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreementexceed 3.50% at any time;
(f) by any Originator shall for any reason cease to transfer, or cease to have the Company (at any time prior legal capacity or otherwise be incapable of transferring, Receivables to the approval Borrower, as purchaser under the Sale Agreement, or any “Servicer Event of Default” or “Potential Servicer Event of Default” shall occur under the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurredSale Agreement;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event Change in Control shall have occurredoccur;
(h) the Performance Undertaking shall cease to be effective (other than in accordance with its terms) or to be the legally valid, binding and enforceable obligation of Performance Guarantor, or Performance Guarantor shall contest in any proceeding in any court or any mediation or arbitral proceeding such effectiveness, validity, binding nature or enforceability of its obligations thereunder;
(i) one or more final judgments shall be entered against any Originator, the Performance Guarantor or any of its subsidiaries for the payment of money in the aggregate amount of $10,000,000 or more, or the equivalent thereof in another currency, on claims not covered by insurance or as to which the insurance carrier has denied its responsibility, and such judgment shall continue unsatisfied and in effect for thirty (30) consecutive days without a stay of execution or bond to secure appeal;
(j) any Transaction Party shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(k) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (k) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; provided, further, for the avoidance of doubt, the existence of any right or option of any holder of any convertible Indebtedness to convert any Indebtedness represented thereby into equity interests of the Company and/or any cash settlement (including in respect of fractional shares) in connection with such conversion or the conversion of such Indebtedness shall not constitute a Termination Event under this clause (k);
(l) [Reserved];
(m) an ERISA Event shall have occurred that, in the reasonable opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(n) the security interest granted pursuant to Article 10 shall for any reason fail to create a valid and perfected first priority security interest in any Collateral purported to be covered thereby (other than any immaterial portion of the Collateral), except as permitted by the Company, upon a breach terms of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, fail to remain in either case such that full force or effect or any action shall be taken to discontinue or to assert the conditions set forth in Section 8.1 invalidity or Section 8.2 would not be satisfied as unenforceability of the time of such breach or as of the time such representation or warranty shall have become inaccurate, any Transaction Document; provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then no Event of Default shall occur under this Agreement shall not terminate pursuant to this Section 9.1(hclause (n) as a result of any loss of perfection or priority caused by the failure of the Administrative Agent to file UCC continuation statements;
(o) any material provision of any of the Transaction Documents for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any Transaction Party shall challenge the enforceability of any of the Transaction Documents or shall assert in writing, or engage in any action or inaction based on any such particular breach assertion, that any provision of any of the Transaction Documents has ceased to be or inaccuracy until otherwise is not valid, binding and enforceable in accordance with its terms);
(p) [Reserved];
(q) an Availability Shortfall exists at any time and the earlier Borrower has not repaid or cash collateralized the amount of such Availability Shortfall within one Business Day of written notice in accordance with Section 2.08;
(r) Consolidated EBITDA of the Company and its subsidiaries for any four consecutive fiscal quarter period ending on the date set forth below is less than the amount set forth opposite such period: September 30, 2011 $ 125,000,000 December 31, 2011 $ 125,000,000 March 31, 2012 $ 160,000,000 June 30, 2012 $ 160,000,000 September 30, 2012 $ 210,000,000 December 31, 2012 $ 250,000,000 March 31, 2013 $ 275,000,000 June 30, 2013 $ 325,000,000 September 30, 2013 $ 370,000,000 December 31, 2013 $ 415,000,000 March 31, 2014 $ 450,000,000 June 30, 2014 $ 475,000,000 September 30, 2014 $ 495,000,000 December 31, 2014 $ 495,000,000 (s) the aggregate amount of Capital Expenditures of the Company and its subsidiaries on a consolidated basis during any period set forth below exceeds the amount set forth opposite such period: For the two consecutive fiscal quarters ending December 31, 2011 $ 90,000,000 For the four consecutive fiscal quarters ending December 31, 2012 $ 200,000,000 For the four consecutive fiscal quarters ending December 31, 2013 $ 250,000,000 For the four consecutive fiscal quarters ending December 31, 2014 $ 355,000,000 ; provided that:
(i) the expiration amount of “Maximum Capital Expenditures” set forth in the table above in respect of any “Period” in such table (a 30 day period commencing upon delivery “Period”) shall be decreased by the aggregate amount of written notice from Indebtedness incurred by the Company to Parent or any subsidiary of the Company in reliance on Section 6.01(e) of the YRCW Amended Term Loan during such breach or inaccuracy and Period;
(ii) Parent or Merger Sub notwithstanding anything to the contrary contained above, to the extent that the aggregate amount of Capital Expenditures made by the Company and its subsidiaries (plus the aggregate amount of Indebtedness incurred as applicabledescribed in the foregoing clause (i)) ceasing to exercise commercially reasonable efforts to cure in any Period that reduced the amount of Capital Expenditures that could be made in such breach (it being understood that this Agreement shall not terminate Period pursuant to this Section 9.1(hthe table above (but disregarding any Capital Expenditures made in reliance on any Rollover Amount utilized during such year) as a result is less than the maximum amount set forth in the table above, fifty percent (50%) of the amount of such particular breach or inaccuracy if difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in the immediately succeeding fiscal year (with such breach by Parent or Merger Sub is cured prior to Rollover Amount deemed utilized first in such termination becoming effectivesucceeding fiscal year); and
(iiii) by Parentin addition to the Capital Expenditures permitted pursuant to the preceding paragraphs of this clause (s), upon a breach the Company and its subsidiaries may make additional Capital Expenditures at any time in an amount not to exceed the portion, if any, of any representation, warranty, covenant or agreement the Available Basket Amount (as defined in the YRCW Amended Term Loan) on the part date of such Capital Expenditure that the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant elects to apply to this Section 9.1(i) clause (s), so long as a no Termination Event has occurred and is continuing or would result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective).therefrom;
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval Each of the issuance following events or occurrences described in this Section 9.1 shall constitute a “Termination Event” (each event which with notice or the passage of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified belowtime or both would become a Termination Event being referred to herein as a “Potential Termination Event”):
(a) by mutual written consent duly authorized by the boards of directors of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (ii) this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(d) shall not be available to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event Amortization Date shall have occurred;
(gb) any Originator shall fail to make when due any payment or deposit to be made by Parent such Originator under this Agreement or any other Basic Document to which it is a party and such failure shall remain unremedied for two (at any time prior to the approval of the Merger by the Required Company Stockholder Approval2) if a Company Triggering Event shall have occurredBusiness Days;
(hc) any representation or warranty made or deemed to be made by any Originator (or any of its officers) under or in connection with this Agreement or in any other Basic Document to which such Originator is a party or in any other written information or report (insofar as pertaining to such Originator) by the CompanyBuyer or the Servicer to the Agent shall be untrue or incorrect in any material respect when made and, upon a if capable of correction, shall not be corrected within thirty (30) days after any Senior Officer of such Originator has knowledge thereof or after written notice of such failure shall have been given by the Agent to the Buyer and the Servicer; provided that, if such breach is incapable of being cured, such thirty (30) day grace period shall not apply; and provided, further that if any representationbreach described above is cured in the manner provided in Section 4.5, warrantyor by the Originator’s making of an indemnification payment under Section 10.1 on account of such breach, in each case in accordance with this Agreement (and as and to the extent permitted under the RLSA), such breach shall not constitute an Event of Default;
(d) any Originator shall fail to perform or observe any other term, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth contained in this Agreement or any other Basic Document to which it is a party on its part to be performed or observed and such continues unremedied for more than thirty (30) days after any Senior Officer of such Originator has knowledge thereof or after written notice of such failure shall have become inaccurate, in either case such that been given by the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of Agent to the time of such breach or as of Buyer and the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective)Servicer; andor
(ie) by Parent, upon a breach any Event of Bankruptcy shall occur with respect to any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effective)Originator.
Appears in 1 contract
Samples: Receivables Purchase and Sale Agreement (Volt Information Sciences, Inc.)
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by the mutual written consent duly authorized by of the boards of directors of Parent Purchaser and the CompanySeller;
(b) unless otherwise terminated pursuant to this Section 6.1, by either Parent or party, with a $200,000 “break-up” fee payable to the Company if the Merger shall not have been consummated by August 15, 2007; provided, however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreementother party;
(c) by either Parent the Purchaser or the Company if Seller if: (i) a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable non-appealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the MergerTransactions; or (ii) there shall be any Legal Requirement enacted, promulgated, issued or deemed applicable to any of the Transactions by any Governmental Body that would make consummation of any of the Transactions illegal;
(d) by either Parent or the Company if Purchaser if: (i) any of the Company Stockholders’ Meeting representations and warranties of the Seller contained in this Agreement shall be materially inaccurate as of the date of this Agreement, or shall have become materially inaccurate as of a date subsequent to the date of this Agreement, such that the condition set forth in Section 5.1(a) would not be satisfied; or (including ii) any adjournments and postponements thereof) of the covenants of the Seller contained in this Agreement shall have been held and completed and materially breached such that the Company’s stockholders shall have taken a final vote on a proposal to adopt this Agreement, and (iicondition set forth in Section 5.1(a) this Agreement shall would not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right 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 reasonable efforts within 30 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 9.1(d6.1(d) shall not be available as a result of such inaccuracy or breach prior to the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action or failure to act expiration of the Company and Seller Cure Period, provided the Seller, during the Seller Cure Period, continues to exercise reasonable efforts to cure such action inaccuracy or failure breach (it being understood that the Purchaser may not terminate this Agreement pursuant to act constitutes a material this Section 6.1(d) with respect to such inaccuracy or breach by if such inaccuracy or breach is cured prior to the Company expiration of this Agreementthe Seller Cure Period);
(e) by either Parent the Seller if: (i) any of the Purchaser’s representations and warranties contained in this Agreement shall be materially inaccurate as of the date of this Agreement, or shall have become materially inaccurate as of a date subsequent to the Company date of this Agreement, such that the condition set forth in Section 5.2(a) would not be satisfied; or (ii) if any of the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) Purchaser’s covenants contained in this Agreement shall have been held and completed and Parent’s stockholders shall have taken a final vote on materially breached such that the issuance of shares of Parent Common Stock condition set forth in the Merger and the issuance of Parent Common Stock in the Merger shall Section 5.2(a) would not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approvalbe satisfied; provided, however, that if an inaccuracy in any of the right Purchaser’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by the Purchaser is curable by the Purchaser through the use of reasonable efforts within 30 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 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties or breach by Parent or Merger Sub is curable by Parent or Merger Sub, then this Agreement shall not terminate pursuant to this Section 9.1(h6.1(e) as a result of such particular inaccuracy or breach or inaccuracy until the earlier of (i) prior to the expiration of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing 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 shall not terminate pursuant to this Section 9.1(h6.1(e) as a result of with respect to such particular inaccuracy or breach or inaccuracy if such inaccuracy or breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and (ii) the Company ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(i) as a result of such particular breach or inaccuracy if such breach by the Company is cured prior to such termination becoming effectivePurchaser Cure Period).; or
Appears in 1 contract
Termination Events. This Agreement may be terminated prior to the Effective Time (whether before or after adoption of this Agreement by the Company’s stockholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by Parent’s stockholders, unless otherwise specified below):Closing:
(a) by mutual written consent duly authorized by the boards of directors of Parent and the CompanyCompany as authorized by their respective Boards of Directors;
(b) by either Parent or the Company Company, if any Order by any Governmental Body of competent jurisdiction preventing or prohibiting consummation of the Merger shall not have been consummated by August 15, 2007become final and nonappealable; provided, however, that the right party seeking to terminate this Agreement under pursuant to this Section 9.1(b) shall not be available must have used all reasonable efforts to remove any party whose action or failure to act has been a principal cause of the failure of the Merger to occur on or before such date and such action or failure to act constitutes a breach of this AgreementOrder;
(c) by either Parent or the Company 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 the Merger;
(d) by either Parent or the Company if (i) the Company StockholdersShareholders’ Meeting (including any adjournments and postponements adjournment or postponement thereof) shall have been duly held and completed and the Company’s stockholders shareholders of the Company shall have taken a final vote on a proposal to approve and adopt the Merger and this Agreement, Agreement and (ii) the Merger and this Agreement shall not have been adopted at the Company Stockholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) approved by the Required Company Stockholder Approvalshareholders of the Company; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 9.1(c) if the right failure of such party’s shareholders to adopt and approve the Merger and this Agreement is attributable to a failure on the part of such party to perform its obligations under this Agreement;
(d) by Parent if any of the Company’s representations and warranties contained in this Agreement shall have become materially inaccurate such that the condition specified in Section 6.1 would not be satisfied, or if any of the Company’s covenants contained in this Agreement shall have been breached in any material respect; provided, however, that Parent may not terminate this Agreement under this Section 9.1(d) shall not be available to on account of an inaccuracy in the Company where the failure to obtain the Required Company Stockholder Approval shall have been caused by the action Company’s representations and warranties or failure to act on account of the Company and such action or failure to act constitutes a material breach of a covenant by the Company which is capable of this Agreementbeing cured, unless the Company fails to cure such inaccuracy or breach within 15 days after receiving written notice from Parent of such inaccuracy or breach;
(e) by either Parent or the Company if the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have been held and completed and Parent’s stockholders shall have taken a final vote on the issuance of shares of Parent Common Stock in the Merger and the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof) by the Required Parent Stockholder Approval; provided, however, that the right to terminate this Agreement under this Section 9.1(e) shall not be available to Parent where the failure to obtain the Required Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Approval) if a Parent Triggering Event shall have occurred;
(g) by Parent (at any time prior to the approval of the Merger by the Required Company Stockholder Approval) if a Company Triggering Event shall have occurred;
(h) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement, or if any representation or warranty of Parent or Merger Sub set forth in this Agreement shall have become inaccurate, in either case such that the conditions set forth in Section 8.1 or Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in Parent’s or Merger Sub’s representations and warranties contained in this Agreement shall have become materially inaccurate such that the condition specified in Section 7.1 would not be satisfied, or if any of Parent’s or Merger Sub’s covenants contained in this Agreement shall have been breached in any material respect; provided, however, that the Company may not terminate this Agreement under this Section 9.1(e) on account of an inaccuracy in Parent’s representations and warranties or on account of a breach of a covenant by Parent or Merger Sub which is curable capable of being cured, unless Parent or Merger Sub fails to cure such inaccuracy or breach within 15 days after receiving written notice from the Company of such inaccuracy or breach;
(f) by Parent or Merger Subthe Company if the Closing has not taken place on or before October 31, then 2004, or such later date as mutually agreed in writing (the “Termination Date”); provided, that a party shall not be permitted to terminate this Agreement pursuant to this Section 9.1(f) if the failure of the Closing to have occurred is attributable to a failure on the part of such party to perform its obligations under this Agreement;
(g) by Parent if a Company Triggering Event (as defined below) shall have occurred; or
(h) By the Company, upon approval of the Board of Directors of the Company, if prior to the Company Shareholders’ Meeting, the Board of Directors of the Company determines, in its good faith judgment after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that it is required to do so to comply with its fiduciary obligations to the Company and its shareholders under applicable Legal Requirements in order to enter into a definitive agreement with respect to a Superior Proposal, but only (i) after providing five (5) business days prior written notice to Parent setting forth in reasonable detail the identity of the Person making, and the final terms and conditions of, such Superior Proposal, and (ii) duly considering any proposals that may be made by Parent during such five (5) business day period and determining, in its good faith judgment (after consultation with a financial advisor of internationally recognized reputation and independent legal counsel), that any such proposals would not terminate be at least as favorable to the Company’s shareholders as such Superior Proposal; provided, however, that any termination of this Agreement pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy shall not be effective until the earlier Company has made full payment of all amounts provided under Section 9.4. For purposes of this Agreement, a “Company Triggering Event” shall be deemed to have occurred if: (i) the expiration Board of a 30 day period commencing upon delivery of written notice from the Company to Parent of such breach or inaccuracy and (ii) Parent or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach (it being understood that this Agreement shall not terminate pursuant to this Section 9.1(h) as a result of such particular breach or inaccuracy if such breach by Parent or Merger Sub is cured prior to such termination becoming effective); and
(i) by Parent, upon a breach of any representation, warranty, covenant or agreement on the part Directors of the Company set forth in this Agreementwithdraws, modifies or if any representation or warranty of changes the Company set forth Recommendation in this Agreement a manner adverse to Parent or shall have become inaccurate, in either case such that the conditions set forth in Section 7.1 or Section 7.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate, provided that if such inaccuracy in the Company’s representations and warranties or breach by the Company is curable by the Company then this Agreement shall not terminate pursuant resolved to this Section 9.1(i) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a 30 day period commencing upon delivery of written notice from Parent to the Company of such breach or inaccuracy and do so; (ii) the Board of Directors of the Company ceasing shall have recommended to exercise commercially reasonable efforts the shareholders of the Company a Competing Transaction or shall have resolved to cure such breach do so or shall have entered into any letter of intent or similar document or any agreement, contract or commitment accepting any Competing Transaction; (it being understood that iii) the Company shall have failed to include in the Proxy Statement the recommendation of the Board of Directors of the Company in favor of the approval and adoption of this Agreement and the approval of the Merger; (iv) through the fault (whether by commission or omission) of the Company, the Merger is not, prior to September 30, 2004, submitted for the approval of the holders of Company Common Stock at the Company Shareholders’ Meeting; (v) the Company shall not terminate pursuant to this have intentionally breached its obligations under Section 9.1(i4.5; or (vi) as a result tender offer or exchange offer for 20% or more of such particular breach or inaccuracy if such breach by the outstanding shares of capital stock of the Company is cured prior commenced, and the Board of Directors of the Company fails to recommend against acceptance of such termination becoming effectivetender offer or exchange offer by its shareholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders).
Appears in 1 contract
