Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company: (a) by the mutual written consent of Parent and the Company; (b) by either Parent or the Company if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement; (c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint; (d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement; (e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement; (f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination; (g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination; (h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3; (i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2; (j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2; (k) by Parent, if there has been a Company Change of Recommendation; or (l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 3 contracts
Samples: Merger Agreement (Vertro, Inc.), Merger Agreement (Inuvo, Inc.), Merger Agreement (Vertro, Inc.)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the respective stockholders of Parent Target and the Company:
Acquiror: (a) by the mutual written consent of Target, Target Parent and the Company;
Acquiror; (b) by either Parent Target or the Company Acquiror if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before June 30, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1999; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 8.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date; (c) by either Target or Acquiror if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 8.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
injunction, order or decree; (d) by either Parent or the Company Acquiror if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval approval of the stockholders of Acquiror contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote or related to the Company’s material breach of this Agreement;
consent; (e) by either Parent Acquiror if a tender offer or exchange offer for 10% or more of the Company if Parent Stockholders’ Meeting outstanding shares of capital stock of Target is commenced prior to the Target Meeting, and the Board of Directors of Target fails to recommend against acceptance of such tender offer or exchange offer within the time period presented by Rule 14e-2 by its stockholders (including any adjournments by taking no position with respect to the acceptance of such tender offer or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated exchange offer by this Agreement shall not have been obtainedits stockholders); provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the CompanyTarget, if Parent Acquiror shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 7.2(a) or Section 6.2 (b), and (ii) is incapable of being cured by Acquiror or is not cured within 30 days of receipt notice of the written notice contemplated by the proviso below in this Section 7.1(f) such breach or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
failure; (g) by ParentAcquiror, if the Company Target shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 7.3(a) or Section 6.3 (b), and (ii) is incapable of being cured by Target or is not cured within 30 days of receipt notice of the written notice contemplated by the proviso below such breach or failure. Except as provided in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate Sections 8.2 and 9.2 of this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Companyconfidentiality obligations in Section 6.10, in the event of the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.18.1, this Agreement shall terminate (except for the provisions of Sections 7.2forthwith become void, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Acquiror, Sub, Target or Target Parent or the Company any of their respective officers or directors to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to and all rights and remedies available at law obligations of any party hereto shall cease, except that nothing herein shall relieve any party from liability for any misrepresentation or in equitybreach of any covenant or agreement under this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (Geoscience Corp), Merger Agreement (Tech Sym Corp), Merger Agreement (Core Laboratories N V)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger Mergers by the respective stockholders of Parent R&B and the CompanyFDC:
(a) by the mutual written consent of Parent R&B and the CompanyFDC;
(b) by either Parent FDC or the Company R&B if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before January 31, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1998; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 8.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Mergers on or before such date;
(c) by either FDC or R&B if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Mergers substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Mergers substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 8.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent FDC or the Company R&B, if the Company Stockholders’ Meeting (including any adjournments approvals of the stockholders of either FDC or postponements thereof) shall have concluded and Company Stockholder Approval R&B contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote at a duly held meeting of stockholders or related to the Company’s material breach of this Agreementany adjournment thereof;
(e) by either Parent or FDC in accordance with Section 6.11(b); provided that, in order for the Company if Parent Stockholders’ Meeting termination of this Agreement pursuant to this paragraph (including any adjournments or postponements thereofe) to be deemed effective, FDC shall have concluded complied with all provisions contained in Section 6.11, including the notice provisions therein, and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; providedwith applicable requirements, howeverincluding the payment of the Termination Fee, that the right to terminate under this of Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement8.3;
(f) by the CompanyFDC, if Parent R&B or any of its directors or officers shall participate in discussion or negotiations in breach of Section 6.10;
(g) by R&B in accordance with Section 6.10(b); provided that, in order for the termination of this Agreement pursuant to this paragraph (g) to be deemed effective, R&B shall have breached complied with all provisions of Section 6.10, including the notice provisions therein, and with applicable requirements, including the payment of the Termination Fee, of Section 8.3;
(h) by R&B, if FDC or failed to perform any of its directions or officers shall participate in any discussions or negotiations in breach of Section 6.11; or
(i) by R&B or FDC if there shall have been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, which Agreement and such breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equitybreach.
Appears in 2 contracts
Samples: Merger Agreement (Falcon Drilling Co Inc), Merger Agreement (Falcon Drilling Co Inc)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the ASARCO Merger by the stockholders respective shareholders of Parent and the CompanyASARCO:
(a) by the mutual written consent of the Board of Directors of Parent and the CompanyASARCO;
(b) by either Parent or ASARCO if, without fault of such terminating party, the Company if purchase of ASARCO Common Stock pursuant to the Merger ASARCO Offer shall not have been consummated occurred on or prior to the six (6) month anniversary before March 31, 2000, which date may be extended by mutual written consent of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;parties hereto; or
(c) by either Parent or the Company ASARCO if any Restraint having court of competent jurisdiction or other governmental body shall have issued an order (other than a temporary restraining order), decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the purchase of ASARCO Common Stock pursuant to the effects set forth in Section 6.1(b) shall be in effect ASARCO Offer or the ASARCO Merger, and such order, decree, ruling or other action shall have become final and nonappealable; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts efforts, subject to prevent the entry of and Section 5.6, to remove or lift such Restraint;
(d) order, decree or ruling; or any statute, rule, regulation, order, injunction or decree shall have been enacted, entered, promulgated or enforced by either Parent any court, administrative agency or commission or other governmental authority or instrumentality which prohibits or makes illegal the consummation of the ASARCO Offer or the Company if ASARCO Merger and which, in the Company Stockholders’ Meeting (including case of any adjournments such order, injunction or postponements thereof) decree, shall have concluded become final and Company Stockholder Approval contemplated by this Agreement nonappealable; or there shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the a failure to obtain Company Stockholder Approval shall any required consent or approval under foreign laws or regulations which would prohibit or make the consummation of the ASARCO Offer or the ASARCO Merger illegal or would have been caused by or related to the Company’s material breach of this Agreement;
(e) by either a Material Adverse Effect on Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityASARCO.
Appears in 2 contracts
Samples: Merger Agreement (Phelps Dodge Corp), Merger Agreement (Asarco Inc)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval by the stockholders of the Company or the shareholders of Parent of the matters presented in connection with the Merger (with any termination by the stockholders of Parent and the Company:also being an effective termination by Merger Sub):
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company if or Parent, if:
(i) (A) the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before October 24, 2022 (the “End Date”), ; provided, howeverthat the End Date will be automatically extended for thirty (30) days if the conditions set forth in Section 6.1(e) have not been satisfied or the Debt Financing has not been obtained on or prior to the End Date; provided, further, that if the Marketing Period has started within fifteen (15) calendar days of the End Date but has not ended or will not end on or prior to the End Date, the End Date will be automatically extended to the next Business Day after the last scheduled day of such Marketing Period; provided, further, that the right to terminate this Agreement pursuant to this Section 7.1(b7.1(b)(i) shall not be available to a party Party if the failure of the Closing to occur by such date shall be the End Date is due to the failure of such party the Party seeking to terminate this Agreement to perform or comply in all material respects with observe the obligations, covenants and agreements of such party Party set forth in this Agreementherein;
(cii) by either Parent any court or the Company if any Restraint having any Governmental Entity of competent jurisdiction that must grant a Required Antitrust Approval has denied approval of the effects set forth in Section 6.1(b) shall be in effect Merger and shall have such denial has become final and nonappealable; providednonappealable or any Governmental Entity of competent jurisdiction shall have issued a final and nonappealable Order permanently enjoining or otherwise prohibiting or making illegal the consummation of the Merger, that unless the party failure to obtain a Required Antitrust Approval is due to the failure of the Party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent perform or observe the entry obligations, covenants and agreements of and to remove such RestraintParty set forth herein;
(diii) by either Parent or the Company if the Company Stockholders’ Stockholder Meeting (including any adjournments or postponements thereof) shall have been held and been concluded and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;or
(eiv) by either the Parent or the Company if Parent Stockholders’ Shareholder Meeting (including any adjournments or postponements thereof) shall have been held and been concluded and the Parent Stockholder Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(fc) by the Company, :
(i) if Parent or Merger Sub shall have breached or failed to perform in any material respect any of its their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (iA) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (iiB) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End DateDate or, providedif curable, that is not cured within twenty (20) Business Days following the Company shall have given Company’s delivery of written notice to Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f7.1(c)(i) and the basis for such termination; provided, this Agreement may not be terminated by the Company pursuant to this Section 7.1(c)(i) if the Company is then in material breach of any representation, warranty, agreement or covenant contained in this Agreement;
(gii) prior to receipt of the Company Stockholder Approval, in order to enter into a definitive agreement providing for a Company Superior Proposal to the extent permitted by and subject to compliance with the applicable terms and conditions of this Agreement that did not result from a breach of Section 5.5; provided, that immediately prior to or contemporaneously with (and as a condition to) the termination of this Agreement, the Company pays to Parent the Company Termination Fee payable pursuant to Section 7.3(a)(i);
(iii) prior to receipt of the Parent Shareholder Approval, if (A) the Parent Board shall have effected a Parent Change of Recommendation or (B) Section 5.6 is materially breached; or
(iv) if (A) all of the conditions set forth in Article 6 have been satisfied (other than (x) conditions which by their nature cannot be satisfied until Closing, but subject to the satisfaction of those conditions at Closing and (y) any conditions set forth in Section 6.2 that have been waived by the Company), (B) Parent and Merger Sub fail to consummate the Closing on the day that the Closing should have been consummated pursuant to Section 1.2 due to the failure of all, or any portion of, the Debt Financing to be funded at Closing for any reason, (C) the Company shall have delivered to Parent an irrevocable written notice confirming that (x) all of the conditions set forth in Article 6 have been satisfied or, with respect to the conditions set forth in Section 6.2, waived and (y) the Company stands ready, willing and able to consummate the Closing, and (D) Parent and Merger Sub fail to consummate the Closing within five (5) Business Days following the later of (x) the date the Closing should have occurred pursuant to Section 1.2 and (y) receipt of the written notice set forth in clause (C);
(d) by Parent, :
(i) if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (iA) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (iiB) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End DateDate or, providedif curable, that Parent shall have given is not cured within twenty (20) Business Days following Parent’s delivery of written notice to the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g7.1(d)(i) and the basis for such termination; provided, this Agreement may not be terminated by Parent pursuant to this Section 7.1(d)(i) if Parent or Merger Sub is then in material breach of any representation, warranty, agreement or covenant contained in this Agreement;
(hii) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder receipt of the Parent Shareholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement providing for a Parent Superior Offer, if Parent has complied Proposal to the extent permitted by and subject to compliance with its obligations under the applicable terms and conditions of this Agreement that did not result from a breach of Section 5.3(d)5.6; provided, howeverthat immediately prior to or contemporaneously with (and as a condition to) the termination of this Agreement, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company the Parent Termination Fee in accordance with payable pursuant to Section 7.2;7.3(b)(i); or
(kiii) by Parentprior to receipt of the Company Stockholder Approval, if there has been (A) the Company Board shall have effected a Company Change of Recommendation; or
Recommendation or (lB) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity5.5 is materially breached.
Appears in 2 contracts
Samples: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, Time (whether before or after any approval of the matters presented in connection with the Merger by the respective stockholders of Parent the Company and Newco, provided however, in the Company:case of a termination by the Company pursuant to this Section 7.01 the Stock Voting Agreement shall have been complied with in all material respects):
(a) by the mutual written consent of Parent the Company and the CompanyNewco;
(b) by either Parent or the Company or Newco if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six before May 31, 2000; (6ii) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 7.01(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date and (iii) in the case of the Company seeking to terminate this Agreement, either (A) the Company Meeting shall have been held prior to such termination and the Company Shareholder Approval shall have been obtained and (B) the condition to Newco's obligations as set forth in Section 7.1(c6.03(c) shall not have been fully satisfied or irrevocably waived by Newco prior to such termination.
(c) by either the Company or Newco if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable and the party seeking to terminate this Agreement pursuant to this clause 7.01(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company or Newco if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote at a duly held meeting of stockholders or related to the Company’s material breach of this Agreementany adjournment thereof;
(e) by either Parent or the Company or Newco if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by the Board of Directors of the Company reasonably determines that a Takeover Proposal constitutes a Superior Proposal, except that the Company may not terminate this Agreement shall not pursuant to this clause 7.01(e) unless and until (i) three business days have been obtained; providedelapsed following delivery to Newco of a written notice of such determination by the Board of Directors of the Company and during such three business day period the Company (x) informs Newco of the terms and conditions of the Takeover Proposal and the identity of the person making the Takeover Proposal and (y) otherwise cooperates with Newco with respect thereto (subject, howeverin the case of this clause (y), to the condition that the right to terminate under this Section 7.1(e) Board of Directors of the Company shall not be available required to Parent where take any action that it believes that such action would be inconsistent with its fiduciary duties under applicable law) with the failure intent of enabling Newco to obtain Parent Stockholder Approval shall have been caused by or related agree to Parent’s material breach a modification of the terms and conditions of this AgreementAgreement so that the transactions contemplated hereby may be effected, (ii) at the end of such three business day period the Board of Directors of the Company continues reasonably to believe that the Takeover Proposal constitutes a Superior Proposal, (iii) simultaneously with such termination the Company enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal, and (iv), if required by Section 7.02, the Company pays to Newco the amount specified and within the time period specified in Section 7.02;
(f) by Newco if the Board of Directors of the Company shall have (i) withdrawn or modified in a manner adverse to Newco its approval or recommendation of this Agreement and the transactions contemplated hereby for reasons other than a Material Adverse Effect in Financing or (ii) approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal;
(g) by Newco if a tender offer or exchange offer for 50% or more of the outstanding shares of capital stock of the Company is commenced prior to the Company Meeting, and the Board of Directors of the Company fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders) within the time period specified by Rule 14e-2;
(h) by the Company if (i) a Material Adverse Effect in Financing shall occur, and (ii) within fifteen business days after written demand by the Company, Newco fails to either (x) waive the condition set forth in Section 6.03(c), or (y) provide information such that the Company reasonably concludes that Newco's receipt of the Contingent Financing is likely; or
(i) by either the Company or Newco if Parent there shall have breached or failed to perform in any been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the conditions set forth in Section 6.1 Sections 6.02(a) or Section 6.2 6.03(a), as the case may be, not to be satisfied, and (ii) is such breach shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.17.01, this Agreement shall terminate (except for the Confidentiality Agreement referred to in Section 5.02 and the provisions of Sections 7.27.02, 8.28.02, 8.4, 8.5 8.04 and 8.68.05), and there shall be no other liability on the part of Parent or the Company or Newco to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 2 contracts
Samples: Merger Agreement (Capricorn Investors Iii L P), Merger Agreement (Tcby Enterprises Inc)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany or Parent:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before November 7, 2009 (the “End Date”), provided, however, provided that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party that fails to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company or Parent if any Restraint having any a Governmental Entity of competent jurisdiction shall have issued an order, judgment, decree or ruling permanently enjoining or otherwise prohibiting the consummation of the effects set forth in Section 6.1(b) shall be in effect Merger and such order, judgment, decree or ruling shall have become final and nonappealable; providednon-appealable, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to remove or prevent the entry of and to remove such Restraintorder, judgment, decree or ruling;
(d) by either Parent or the Company or Parent if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate this Agreement under this Section 7.1(d) shall not be available to the Company where the failure to obtain the Company Stockholder Approval shall have been caused by the action or related failure to act of the Company’s 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 or Parent if the Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Parent Stockholder Approval Approvals contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate this Agreement under this Section 7.1(e) shall not be available to Parent where the failure to obtain the Parent Stockholder Approval Approvals shall have been caused by the action or related failure to Parent’s act of Parent and such action or failure to act constitutes a material breach by Parent of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, provided that the Company shall have given Parent written notice, delivered at least 30 thirty days prior to such termination (but no later than the expected Closing Date)termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, provided that Parent shall have given the Company written notice, delivered at least 30 thirty days prior to such termination (but no later than the expected Closing Date)termination, stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, at any time prior to obtaining the Company Stockholder Approval, in light of a Superior Proposal; provided, however, that the event Company may not terminate this Agreement pursuant to this Section 7.1(h) if the other party Company is in material breach of Section 5.4 or any unless the Company has first provided a Notice of Superior Proposal to Parent and is in compliance in all material respects with Section 5.4(e) and, at the end of the Notice Period (as it may be extended if so required pursuant to the terms of Section 5.4(e)), such other partyproposal continues to constitute a Superior Proposal and the Company Board determines in good faith, after consultation with the Company’s Subsidiaries outside legal and financial advisors, that making the Company Recommendation or their respective affiliates, failing to effect a Company Change of Recommendation in a manner adverse to Parent would be inconsistent with the directors, officers, employees or Representatives shall have breached in any material respect any of their respective ’ fiduciary obligations to the Company’s stockholders under Section 5.3applicable Law;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d)Parent Board shall have effected a Parent Change of Recommendation; provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;and
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
Board shall have (ki) by Parent, if there has been effected a Company Change of Recommendation; or
Recommendation or (lii) by recommended the approval or adoption of any Alternative Proposal to the Company, if there has been a Parent Change of Recommendation’s stockholders. In the event of termination of If this Agreement is terminated pursuant to this Section 7.1, then this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 7.2 and 8.6Article VIII), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement Agreement, for fraud or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 2 contracts
Samples: Merger Agreement (Centex Corp), Merger Agreement (Pulte Homes Inc/Mi/)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Stockholders:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if there shall be any Law that makes consummation of the Merger illegal or otherwise prohibited, or if any judgment, injunction, order or decree of a competent Governmental Authority enjoining the Company or Parent from consummating the Merger shall not have been consummated entered and such judgment, injunction, order or decree shall have become final and nonappealable; provided that the Party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have used its commercially reasonable efforts to render inapplicable such Law or regulation or remove such judgment, injunction, order or decree as required by Section 6.7;
(c) by either the Company or Parent if neither the Acceptance Time nor the Effective Time shall have occurred on or prior to the six (6) month anniversary of the date hereof before 11:59 p.m. Eastern Time on January 29, 2016 (the “End Date”), ; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b8.1(c) shall not be available to a party if any Party whose material breach of any representation, warranty covenant or obligation under this Agreement has been the failure cause of the Closing to occur by such date shall be due to or resulted in the failure of such party time to perform occur on or comply in all material respects with before the covenants and agreements of such party set forth in this AgreementEnd Date;
(cd) by either Parent prior to the earlier of the Acceptance Time and obtaining the Company Stockholder Approval (i) at any time following an Adverse Recommendation Change by the Company Board, or (ii) if after the date of this Agreement a Company Acquisition Proposal is publicly announced or disclosed (or any person shall have publicly announced an intention (whether or not conditional) to make such Company Acquisition Proposal) and the Company Board fails to affirm the Company Board Recommendation within five Business Days after receipt of a written request from Parent to do so with respect to such Company Acquisition Proposal (provided, however, that in no event will the Company Board be required to affirm the Company Board Recommendation more than once with respect to any particular Company Acquisition Proposal or more than once with respect to a material amendment thereof);
(e) by Parent or the Company if the Company Stockholders Meeting has concluded (including after taking into account any Restraint having adjournment or postponement thereof), the Company Stockholders voted and the Company Stockholder Approval shall not have been obtained;
(f) by Parent or the Company if prior to the earlier of the Acceptance Time or the Effective Time there shall have been a breach by the other of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any Event shall have occurred, which breach or Event would result in the effects failure of one or more of the conditions set forth in Section 6.1(b7.2(a) or Section 7.2(b) (in the case of a breach by, or Event with respect to, Parent) or clauses (b), (c) or (d) of Annex A (in the case of a breach by, or Event with respect to, the Company) to be satisfied on or prior to the End Date, and such breach or Event shall not be capable of being cured or shall not have been cured by the earlier of (i) the End Date and (ii) 30 Business Days after detailed written notice thereof shall have been received by the Party alleged to be in effect and shall breach or with respect to which an Event is alleged to have become final and nonappealable; occurred, provided, however, that the party Party seeking to terminate this Agreement pursuant to this Section 7.1(c8.1(f) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall is not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s then in material breach of any representation, warranty or covenant under this Agreement;
(eg) by either Parent or prior to the earlier of the Acceptance Time and the receipt of the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval if there shall have been caused by or related to Parent’s a material breach of this Agreement;by the Company under Section 6.4(a); or
(fh) by the Company, if Parent shall have breached or failed to perform Company in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in accordance with Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date6.4(g), stating the Company’s intention . The Party desiring to terminate this Agreement pursuant to clauses (b)-(h) of this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the 8.1 will give written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to of such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee Parties in accordance with Section 7.2;
(j) by Parent9.7, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to specifying the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination provision of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under which such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equitytermination is effected.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Insite Vision Inc), Merger Agreement (Insite Vision Inc)
Termination or Abandonment. Notwithstanding anything in this This Agreement to and the contrary, this Agreement transactions contemplated herein may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyDate:
(a) by the mutual written consent of Parent CORE, Purchaser, Transcend and the CompanySeller;
(b) by either Parent CORE if (i) any of the representations or the Company if the Merger warranties of Seller or Transcend contained herein shall not have been consummated untrue or incorrect in any material respect on or prior to the six (6) month anniversary of the date hereof or (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(bii) shall not be available to a party if the failure of the Closing to occur by such date Seller or Transcend shall be due to in material breach of any of its covenants, agreements or obligations hereunder and such breach shall continue uncured until the failure earlier of such (x) the scheduled Closing Date, or (y) the third day following the receipt by the breaching party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementnotice thereof;
(c) by either Parent Transcend or the Company Seller if any Restraint having (i) any of the effects set forth representations or warranties of CORE or Purchaser contained herein shall have been untrue or incorrect in Section 6.1(bany material respect on the date hereof or (ii) CORE or Purchaser shall be in effect material breach of any of its covenants, agreements or obligations hereunder and such breach shall have become final and nonappealable; providedcontinue uncured until the earlier of (x) the scheduled Closing Date, that or (y) the third day following the receipt by the breaching party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintnotice thereof;
(d) by either Parent Transcend, Seller, Purchaser or CORE if, without fault of such terminating party, the Company Closing has not become effective by April 1, 1998, or such other date, if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) any, as Seller and CORE shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreementagree upon in writing;
(e) by either Parent CORE if the conditions set forth in Article IX hereof have not been satisfied on or prior to the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this AgreementClosing Date;
(f) by Transcend or any Seller if the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition conditions set forth in Section 6.1 Article VIII hereof have not been satisfied on or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Transcend Services Inc), Asset Purchase Agreement (Transcend Services Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the respective stockholders of Parent the Company and the CompanyParent:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six before November 30, 1998 and (6ii) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 7.1(b) shall not have breached in any material respect its obligations under this Agreement or the Option Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date, except that if, as of November 30, 1998, all conditions set forth in Section 7.1(c6.1, 6.2 and 6.3 of this Agreement have been satisfied or waived other than receipt of the requisite approval of the FCC, then either Parent or the Company may extend the Termination Date to February 28, 1999, by providing written notice to the other party on November 30, 1998;
(c) by either the Company or Parent if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable and the party seeking to terminate this Agreement pursuant to this clause 7.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company or Parent if the approvals of the stockholders of either the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval Parent contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote at a duly held meeting of stockholders or related to the Company’s material breach of this Agreementany adjournment thereof;
(e) by either Parent or the Company or Parent if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by the Board of Directors of the Company reasonably determines that a Takeover Proposal constitutes a Superior Proposal, except that the Company may not terminate this Agreement shall not pursuant to this clause 7.1(e) unless and until (i) three business days have been obtained; providedelapsed following delivery to Parent of a written notice of such determination by the Board of Directors of the Company and during such three business day period the Company (x) informs Parent of the terms and conditions of the Takeover Proposal and the identity of the person making the Takeover Proposal and (y) otherwise cooperates with Parent with respect thereto (subject, howeverin the case of this clause (y), to the condition that the right to terminate under this Section 7.1(e) Board of Directors of the Company shall not be available required to take any action that it believes, after consultation with outside legal counsel, would present a reasonable possibility of violating its obligations to the Company or the Company's stockholders under applicable law) with the intent of enabling Parent to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (ii) at the end of such three business day period the Board of Directors of the Company continues reasonably to believe that the Takeover Proposal constitutes a Superior Proposal, (iii) simultaneously with such termination the Company enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal and (iv) the Company pays to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementamount specified and within the time period specified in Section 7.2;
(f) by Parent if the Company, if Parent Board of Directors of the Company shall have breached (i) withdrawn or failed modified in a manner adverse to perform in Parent its approval or recommendation of this Agreement and the transactions contemplated hereby or (ii) approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal;
(g) by Parent if a tender offer or exchange offer for 50% or more of the outstanding shares of capital stock of the Company is commenced prior to the Company Meeting, and the Board of Directors of the Company fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders) within the time period specified by Rule 14e-2; or
(h) by either the Company or Parent if there shall have been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement or the Option Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the conditions set forth in Section 6.1 Sections 6.2(a) or Section 6.2 6.3(a), as the case may be, not to be satisfied, and (ii) is such breach shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the confidentiality agreement referred to in Section 5.2 and the provisions of Sections 7.2, 8.2, 8.4, 8.5 8.4 and 8.68.5), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 2 contracts
Samples: Merger Agreement (Alltel Corp), Merger Agreement (360 Communications Co)
Termination or Abandonment. (a) Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to before the Effective TimeDate, whether before or after any approval of the matters presented in connection with the Merger by the stockholders shareholders of Parent and NPCC (except with respect to Section 7.1(c), in which case the Company:termination must be before receipt of the NPCC Shareholder Approval):
(ai) by the mutual written consent of Parent NPCC and the CompanyUSAC;
(bii) by either Parent NPCC or USAC, if:
(1) the Company if the Merger Effective Date shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before October 1, 2017 (the “End Date”), provided that the party seeking to terminate this Agreement under this Section 7.1(a)(ii)(1) shall not have breached its obligations under this Agreement in any manner that shall have proximately caused the failure to consummate the Merger on or before the End Date;
(2) an injunction, other legal restraint or order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such injunction, other legal restraint or order shall have become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b) shall 7.1(a)(ii)(2)shall not be available to a any party if the failure of the Closing to occur by such date shall be due to the failure of until such party to perform or comply in has used all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;injunction or other legal restraint or order; or
(d3) by either Parent or (A) the Company if the Company Stockholders’ NPCC Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder the NPCC Shareholder Approval contemplated by this Agreement has not been obtained because of the failure to obtain the required vote upon a vote held at a duly held meeting of shareholders, or at any adjournment thereof, or (B) if at a duly held meeting of NPCC’s shareholders, no vote shall not have been obtainedtaken in respect of the NPCC Shareholder Approval; provided, however, that the right to terminate this Agreement under this Section 7.1(d7.1(a)(ii)(3) shall not be available to NPCC if NPCC’s failure to fulfill any covenant or agreement under this Agreement has been the Company where cause of or resulted in the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this AgreementNPCC Shareholder Approval;
(eiii) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the CompanyNPCC, if Parent shall have breached USAC breaches or failed fails to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i1) would reasonably be expected to result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii2) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, ; provided, that the Company NPCC shall have given Parent USAC written notice, delivered at least 30 thirty (30) days prior to before such termination (but no later than or such shorter period as is between the expected Closing date of such notice and the End Date), stating the CompanyNPCC’s intention to terminate this Agreement pursuant to under this Section 7.1(f7.1(a)(iii)(1) and the basis for such termination;; and provided, further, that NPCC is not then in material breach of this Agreement so as to cause any of the conditions set forth in Section 6.1 or 6.3 not to be satisfied.
(giv) by ParentUSAC, if the Company shall have breached if:
(1) NPCC breaches or failed fails to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i1) would reasonably be expected to result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii2) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, ; provided, that Parent USAC shall have given the Company NPCC written notice, delivered at least 30 thirty (30) days prior to before such termination (but no later than or shorter period as is between the expected Closing date of such notice and the End Date), stating ParentUSAC’s intention to terminate this Agreement pursuant to under this Section 7.1(g7.1(a)(iv)(1) and the basis for such termination;
(h) by Parent or the Company; and provided, further, that USAC is not then in the event the other party or material breach of this Agreement so as to cause any of such other party’s Subsidiaries the conditions set forth in Section 6.1 or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior 6.2 not to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendationsatisfied; or
(l2) by after the Company, if date of this Agreement there has been a Parent Change any NPCC Material Adverse Effect;
(v) by USAC if (A) NPCC’s Board of Recommendation. Directors fails to include in the Proxy Statement its recommendation, without modification or qualification, that NPCC shareholders approve this Agreement and the Merger, or (B) NPCC’s Board of Directors approves, endorses or recommends any Takeover Proposal other than the Merger;
(b) A terminating party shall provide written notice of termination to the other party specifying the reason for such termination.
(c) In the event of termination of this Agreement pursuant to under this Section 7.1, this Agreement shall terminate (except for the Confidentiality Agreement and the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6Article VIII), and there shall be no other liability on the part of Parent NPCC, USAC or the Company ANDC to the other except under such provisions, or for liability arising out of fraud or intentional or material any willful breach of any of the representations, warranties or covenants in this Agreement (subject to any express limitations set forth in this Agreement) or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 2 contracts
Samples: Merger Agreement (US Alliance Corp), Plan and Agreement of Merger (US Alliance Corp)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the First Effective Time, whether before or after any approval by the stockholders of the Company or the shareholders of Parent of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyMergers:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company if or Parent, if:
(i) (A) the Merger First Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before December 21, 2021 (the “End Date”), provided, however, that ) and (B) the right party seeking to terminate this Agreement pursuant to this Section 7.1(b7.1(b)(i) shall not be available to a party if have breached in any material respect its obligations under this Agreement in any manner that has been the primary cause of the failure of to consummate the Closing to occur by Mergers on or before such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(cii) by either Parent any Governmental Entity of competent jurisdiction shall have issued or entered an injunction or similar Order permanently enjoining or prohibiting the consummation of the Mergers or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect Voting Trust Transaction, and such injunction or Order shall have become final and nonappealablenon-appealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c7.1(b)(ii) shall not have used breached in any material respect its reasonable best efforts to prevent obligations under this Agreement in any manner that has been the entry primary cause of and to remove such Restraintinjunction or Order;
(diii) by either Parent or the Company if the Company Stockholders’ Stockholder Meeting (including any adjournments or postponements thereof) shall have been held and been concluded and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;or
(eiv) by either if the Parent or the Company if Parent Stockholders’ Shareholder Meeting (including any adjournments or postponements thereof) shall have been held and been concluded and the Parent Stockholder Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(fc) by the Company, :
(i) if Parent or either Merger Sub shall have breached or failed to perform in any material respect any of its their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (iA) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (iiB) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End DateDate or, providedif curable, that is not cured within 45 Business Days following the Company shall have given Company’s delivery of written notice to Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f7.1(c)(i) and the basis for such termination; provided, that the Company shall not have a right to terminate this Agreement pursuant to this Section 7.1(c)(i) if the Company is then in material breach of any representation, warranty, agreement or covenant contained in this Agreement; or
(ii) prior to receipt of the Company Stockholder Approval, in order to enter into a definitive agreement providing for a Company Superior Proposal;
(giii) prior to receipt of the Parent Shareholder Approval, if the Parent Board shall have effected a Parent Change of Recommendation.
(d) by Parent, :
(i) if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (iA) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (iiB) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End DateDate or, providedif curable, that Parent shall have given is not cured within 45 Business Days following Parent’s delivery of written notice to the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g7.1(d)(i) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant Parent shall not have a right to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of terminate this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of 7.1(d)(i) if Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or either Merger Sub is then in material breach of any representation, warranty, agreement or covenant contained in this Agreement or as provided for in Agreement; or
(ii) prior to receipt of the Confidentiality AgreementCompany Stockholder Approval, in which case if the aggrieved party Company Board shall be entitled to all rights and remedies available at law or in equityhave effected a Company Change of Recommendation.
Appears in 2 contracts
Samples: Merger Agreement (Kansas City Southern), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger this Agreement by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before December 31, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2000; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c9.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have materially contributed to the failure to consummate the Merger on or before such date;
(c) by either the Company or Parent if (i) a statute, rule, regulation or executive order shall have been enacted, entered, promulgated or enforced by any Governmental Authority prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 9.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintorder, decree, ruling or injunction;
(d) by either Parent or the Company or Parent if (i) the Company Stockholders’ Stockholders Meeting (including any adjournments or postponements thereof) shall have concluded been held and completed and the stockholders of the Company Stockholder Approval shall have taken a final vote on a proposal to approve this Agreement, and (ii) the approval of the stockholders of the Company contemplated by this Agreement shall not have been obtained; provided, however, that the right party seeking to terminate under this Agreement pursuant to this Section 7.1(d9.1(d) shall not be available have breached in any material respect its obligations under this Agreement in any manner that shall have materially contributed to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreementsuch approval;
(e) by either Parent Parent, if the Company shall have failed to include in the Proxy Statement/Prospectus the Company Recommendation or effected a Change in Company Recommendation (or the Company's board of directors has resolved to take any such action), whether or not permitted by the terms hereof, which Change in Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement Recommendation shall not have been obtained; providedrescinded or reversed prior to such termination, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval or shall have been caused by failed to call the Company Stockholders Meeting in accordance with Section 4.1 promptly following the effectiveness of the Registration Statement, or related to Parent’s material breach shall have materially breached any of this Agreementits obligations under Section 7.9;
(f) by the Company, Company if Parent there shall have breached or failed to perform in any been a material respect breach by Parent of any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition Agreement such that the conditions set forth in Section 6.1 8.2(a) or Section 6.2 8.2(b) would not be satisfied as of the time of such breach, and (ii) is such breach shall not have been cured within 30 days of receipt of the after written notice contemplated thereof shall have been received by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, Parent; provided that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform not itself be in any material respect breach of any of its representations, warranties, covenants or other agreements contained in this AgreementAgreement so as to permit the termination of this Agreement by Parent pursuant to Section 9.1(g);
(g) by Parent if there shall have been a material breach by the Company of any of its representations, which breach warranties, covenants or failure to perform (i) would result agreements contained in a failure of a condition this Agreement such that the conditions set forth in Section 6.1 8.3(a) or Section 6.3 8.3(b) would not be satisfied as of the time of such breach, and (ii) is such breach shall not have been cured within 30 days of receipt of the after written notice contemplated thereof shall have been received by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, Company; provided that Parent shall have given not itself be in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement so as to permit the termination of this Agreement by the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination9.1(f);
(h) by Parent or the Company, in the event the other party or if (i) any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached the Principal Stockholders breaches in any material respect any of their respective its voting and nonsolicitation obligations under Section 5.3;Sections 1.1 and 1.5 of the Voting Agreements, or (ii) any executive officer of the Company who is a party to an Employment Agreement has ceased to be an employee of the Company (other than by reason of death or disability) at or prior to the Effective Time and shall not prior to such termination become re-employed by the Company; and
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, Parent if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by SEC does not accept the Company pursuant to this Section 7.1(i) shall be void and Merger as a pooling of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement interests transaction for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationfinancial accounting purposes. In the event of termination of this Agreement pursuant to this Section 7.19.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6)terminate, and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or intentional or material a willful breach of this Agreement or as provided for in the Confidentiality Agreement, in Agreement (which case the aggrieved party shall be entitled to all rights and remedies available at law or in equitysurvive such termination).
Appears in 2 contracts
Samples: Merger Agreement (Teletech Holdings Inc), Merger Agreement (Newgen Results Corp)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the First Effective Time, whether before or after any approval by the stockholders of the Company or the shareholders of Parent of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyMergers:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company if or Parent, if:
(i) (A) the Merger First Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before February 21, 2022 (the “End Date”), provided, however, that ) and (B) the right party seeking to terminate this Agreement pursuant to this Section 7.1(b7.1(b)(i) shall not be available to a party if have breached in any material respect its obligations under this Agreement in any manner that has been the primary cause of the failure of to consummate the Closing to occur by Mergers on or before such date shall be due date; provided, that to the failure of such party extent the condition to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects Closing set forth in Section 6.1(b6.1(f) has not been satisfied or waived on or prior to February 21, 2022, but all other conditions to Closing set forth in Article 6 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing), the End Date shall be in effect automatically extended to May 21, 2022;
(ii) any court or other Governmental Entity of competent jurisdiction shall have issued or entered an injunction or similar Order that prohibits or makes illegal the consummation of the Mergers or the Voting Trust Transaction, and such injunction or Order shall have become final and nonappealablenon-appealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c7.1(b)(ii) shall not have used breached in any material respect its reasonable best efforts to prevent obligations under this Agreement in any manner that has been the entry primary cause of and to remove such Restraintinjunction or Order;
(diii) by either Parent or the Company if the Company Stockholders’ Stockholder Meeting (including any adjournments or postponements thereof) shall have been held and been concluded and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;or
(eiv) by either if the Parent or the Company if Parent Stockholders’ Shareholder Meeting (including any adjournments or postponements thereof) shall have been held and been concluded and the Parent Stockholder Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(fc) by the Company, :
(i) if Parent or either Merger Sub shall have breached or failed to perform in any material respect any of its their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (iA) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (iiB) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End DateDate or, providedif curable, that is not cured within 45 Business Days following the Company shall have given Company’s delivery of written notice to Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f7.1(c)(i) and the basis for such termination; provided, that the Company shall not have a right to terminate this Agreement pursuant to this Section 7.1(c)(i) if the Company is then in material breach of any representation, warranty, agreement or covenant contained in this Agreement;
(gii) prior to receipt of the Company Stockholder Approval, in order to enter into a definitive agreement providing for a Company Superior Proposal; or
(iii) prior to receipt of the Parent Shareholder Approval, if the Parent Board shall have effected a Parent Change of Recommendation.
(d) by Parent, :
(i) if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (iA) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (iiB) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End DateDate or, providedif curable, that Parent shall have given is not cured within 45 Business Days following Parent’s delivery of written notice to the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g7.1(d)(i) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant Parent shall not have a right to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of terminate this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of 7.1(d)(i) if Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or either Merger Sub is then in material breach of any representation, warranty, agreement or covenant contained in this Agreement or as provided for in Agreement; or
(ii) prior to receipt of the Confidentiality AgreementCompany Stockholder Approval, in which case if the aggrieved party Company Board shall be entitled to all rights and remedies available at law or in equityhave effected a Company Change of Recommendation.
Appears in 2 contracts
Samples: Voting Trust Agreement (Canadian Pacific Railway LTD/Cn), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent Hi/Lo and the CompanyDiscount:
(a) by the mutual written consent of Parent Hi/Lo and the CompanyDiscount;
(b) by either Parent Hi/Lo or the Company Discount if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before April 30, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1998; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either Hi/Lo or Discount if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 7.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent Hi/Lo or the Company Discount if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval approval of the stockholders of Hi/Lo contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote at a duly held meeting of stockholders or related to the Company’s material breach of this Agreementany adjournment thereof;
(e) by either Parent or Hi/Lo prior to the Company approval of this Agreement by the Stockholders if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by the Board of Directors of Hi/Lo reasonably determines that a Takeover Proposal constitutes a Superior Proposal provided, that this Agreement shall not have been obtained; provided, however, that the right terminate pursuant to terminate under this Section clause 7.1(e) shall not be available unless simultaneously with such termination Hi/Lo enters into a definitive acquisition, merger or similar agreement to Parent where effect the failure Superior Proposal and pays the Termination Fee (as defined in Section 7.2(b)) required pursuant to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this AgreementSection 7.2(b);
(f) by either Hi/Lo or Discount if the Company, if Parent other shall have breached breached, or failed to perform comply with, in any material respect any of its representations, warranties, covenants obligations under this Agreement or any representation or warranty made by such other agreements contained in this Agreementparty shall have been untrue when made or as of the time of such termination as if made on and as of such time (except for representations and warranties made as of a specified date, which breach need be true only as of the specified date), provided such breach, failure or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) misrepresentation is not cured within 30 days of receipt of after notice thereof from the written notice contemplated by other party and such breaches, failures or misrepresentations, individually or in the proviso below aggregate, results or is reasonably likely to result in this Section 7.1(f) a Material Adverse Effect on Hi/Lo or cannot be cured by Discount, as the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationcase may be;
(g) by Parent, Discount if the Company shall have breached Board of Directors of Hi/Lo or failed to perform in any material respect any committee of its representationsthe Board of Directors of Hi/Lo, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result shall withdraw or modify in a failure any adverse manner its approval or recommendation of a condition set forth in Section 6.1 this Agreement or Section 6.3 and the Merger, (ii) is not cured within 30 days shall approve or recommend any acquisition of receipt Hi/Lo or a material portion of Hi/Lo's assets or any tender offer for shares of Hi/Lo's capital stock, in each case, other than by Discount or an affiliate of Discount, or (iii) shall resolve to take any of the written notice contemplated by the proviso below actions specified in this Section 7.1(gclause (i) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;above; or
(h) by Parent or the CompanyHi/Lo, in the event that the other party or any Discount Average Share Price is less than $19.55, but only if Hi/Lo's Board of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any Directors determines to so terminate by a vote of their respective obligations under Section 5.3;
(i) by a majority of the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with members of its obligations under Section 5.3(d)entire Board of Directors; provided, however, that any such purported no termination by the Company shall be effective pursuant to this Section 7.1(i7.1(e) shall be void and of no force or effect unless Parent pays to Parent the Company under circumstances in which a Termination Fee is payable by Hi/Lo under Section 7.2 unless concurrently with such termination, such Termination Fee is paid in full by Hi/Lo in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections Section 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 2 contracts
Samples: Merger Agreement (Hi Lo Automotive Inc /De), Merger Agreement (Discount Auto Parts Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger Transactions by any stockholders required to approve the stockholders of Parent and the CompanyTransactions:
(a) by the mutual written consent of Parent IP and the CompanyUWWH;
(b) by either Parent IP or the Company UWWH if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before January 5, 2015 (the “End Termination Date”), provided, however, that unless the right failure of the Effective Time to have occurred by the Termination Date shall be due to the failure of the Party seeking to terminate this Agreement pursuant to this Section 7.1(b10.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or otherwise comply with in all material respects with the covenants and agreements of such party set forth in this Agreement;herein.
(c) by either Parent or the Company if any Restraint having any of the effects set forth UWWH (so long as UWWH is not then in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent any covenant, representation or warranty or other agreement contained herein which breach would cause the Company Closing conditions of IP or Spinco not to be satisfied if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have the Closing were to occur at the time of termination), if there has been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s a material breach by IP or Spinco of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which or any such representation and warranty shall have become untrue in any material respect, in either case such that Section 9.3(a) hereof would be incapable of being satisfied, and such breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is has not been cured within 30 days Business Days following receipt by IP or Spinco, if applicable, of receipt notice of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationbreach;
(gd) by ParentIP (so long as IP is not then in material breach of any covenant, representation or warranty or other agreement contained herein which breach would cause the Closing conditions of UWWH or the UWWH Stockholder not to be satisfied if the Closing were to occur at the time of termination), if the Company shall have breached or failed to perform in any there has been a material respect breach by UWWH of any of its representations, warranties, covenants or other agreements contained in this Agreement, which or any such representation and warranty shall have become untrue in any material respect, in either case such that Section 9.2(a) hereof would be incapable of being satisfied, and such breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is has not been cured within 30 days Business Days following receipt by UWWH of receipt notice of such breach; or
(e) by either IP or UWWH if any Law or Order by any Governmental Authority preventing or prohibiting consummation of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent Transactions shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention become final and nonappealable. The Party desiring to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any 10.1 will give written notice of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under Party, specifying the provision pursuant to which such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equitytermination is effected.
Appears in 2 contracts
Samples: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof December 31, 2010 (the “End Date”), provided, however, that if all of the conditions to Closing shall have been satisfied or shall be then capable of being satisfied (other than the condition set forth in Section 6.1(c)), the End Date may be extended by Parent or the Company from time to time by written notice to the other party up to a date not beyond March 31, 2011, the latest of any of which dates shall thereafter be deemed to be the End Date; and provided, further, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company or Parent if any Restraint having any an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the effects set forth in Section 6.1(b) shall be in effect Merger and such injunction shall have become final and nonappealablenon-appealable; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction;
(d) by either Parent or the Company or Parent if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company or Parent if the Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is shall not have been cured within 30 days following receipt by Parent of receipt of the written notice contemplated of such breach from the Company (such notice to describe such breach in reasonable detail), or which breach, by the proviso below in this Section 7.1(f) or its nature, cannot be cured by prior to the End Date, provided, Date (provided that the Company shall have given Parent written noticeis not then in material breach of any representation, delivered at least 30 days prior to such termination (but no later than the expected Closing Datewarranty, covenant or other agreement contained herein), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is shall not have been cured within 30 days following receipt by the Company of receipt of the written notice contemplated of such breach from Parent (such notice to describe such breach in reasonable detail), or which breach, by the proviso below in this Section 7.1(g) or its nature, cannot be cured by prior to the End Date, provided, Date (provided that Parent shall have given the Company written noticeis not then in material breach of any representation, delivered at least 30 days prior to such termination (but no later than the expected Closing Datewarranty, covenant or other agreement contained herein), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any a Company Change of their respective obligations under Section 5.3Recommendation;
(i) by the Company in the event of a Parent Change of Recommendation;
(j) by the Company, at any time prior to obtaining the Company Stockholder Approval, in order to enter into a written definitive agreement for with respect to a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d5.4(e); provided, however, provided that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent the Company pays to Parent the Company Parent Acquisition Proposal Termination Fee in accordance with Section 7.2;; and
(k) by Parent, if there has been at any time prior to obtaining the Parent Stockholder Approval, in order to enter into a Company Change of Recommendation; or
(l) by the Companydefinitive agreement with respect to a Parent Superior Offer, if there Parent has been a complied with its obligations under Section 5.5(e); provided that any such purported termination by Parent Change pursuant to this Section 7.1(k) shall be void and of Recommendationno force or effect unless Parent pays to the Company the Acquisition Proposal Termination Fee in accordance with Section 7.2. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 8.5, 8.6, 8.10 and 8.68.13), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 2 contracts
Samples: Merger Agreement (Mirant Corp), Merger Agreement (Rri Energy Inc)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after Time (notwithstanding any approval of the matters presented in connection with the Merger this Agreement by the stockholders shareholders of the Company or any Parent and the Company:Stockholder Approval):
(a) by the mutual written consent of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before December 31, 1998; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b) shall not be available to a any party if whose failure to perform any covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Closing Merger to occur by on or before such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(c) by either Parent if (i) the Board of Directors of the Company shall or shall resolve to (A) withdraw the Company Board Recommendation, (B) modify such recommendation in a manner adverse to Parent or Merger Sub or refuse to affirm the Company if Board Recommendation as promptly as practicable (but in any Restraint having case within 10 business days) after receipt of any of the effects set forth written request from Parent which request was made on a reasonable basis, or (C) approve or recommend any proposed Company Business Combination (as defined in Section 6.1(b7.3(e)), or (ii) shall be the Company has failed, as promptly as practicable after the Registration Statement is declared effective by the SEC, to call the Company Meeting or to mail the Joint Proxy Statement to its shareholders, or failed to include in effect and shall have become final and nonappealable; provided, that such statement the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such RestraintCompany Board Recommendation;
(d) by either Parent or the Company if (i) the Company Stockholders’ Meeting Board of Directors of Parent shall or shall resolve to (including any adjournments or postponements thereofA) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; providedwithdraw the Parent Board Recommendation, however, that the right to terminate under this Section 7.1(d(B) shall not be available modify such recommendation in a manner adverse to the Company where or refuse to affirm the failure Parent Board Recommendation as promptly as practicable (but in any case within 10 business days) after receipt of any written request from the Company which request was made on a reasonable basis, or (C) approve or recommend any proposed Parent Business Combination (as defined in Section 7.3(f)), or (ii) Parent has failed, as promptly as practicable after the Registration Statement is declared effective by the SEC, to obtain Company Stockholder Approval shall have been caused by call the Parent Meeting or related to mail the Company’s material breach of this AgreementJoint Proxy Statement to its shareholders, or failed to include in such statement the Parent Board Recommendation;
(e) by either Parent or the Company if Parent Stockholders’ at the Company Meeting (including any adjournments adjournment or postponements postponement thereof) shall have concluded and Parent Stockholder Approval contemplated by the requisite vote of the shareholders of the Company to approve this Agreement and the Merger shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by Parent or the CompanyCompany if at the Parent Meeting (including any adjournment or postponement thereof) the Parent Stockholder Approval shall not have been obtained;
(g) by either the Company or Parent, if there shall be any Law or Decree that prohibits or makes illegal consummation of the Merger or if any Decree enjoining Parent or the Company from consummating the Merger is entered and such Decree shall become final and nonappealable;
(h) by Parent or the Company if there shall have breached or failed to perform in any been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a the failure to satisfy one or more of a condition the conditions set forth in Section 6.1 6.2 (in the case of a breach by Parent) or Section 6.2 6.3 (in the case of a breach by the Company), and (ii) is such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured within 30 days of receipt of the after written notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;breach; or
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this to, but only in compliance with, Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity5.8.
Appears in 2 contracts
Samples: Merger Agreement (SPX Corp), Merger Agreement (General Signal Corp)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent and the Company, TBIO and Parent;
(b) (i) by either Parent or the Company if the Merger shall Effective Time has not have been consummated occurred on or prior to the six before June 1, 2001 or (6ii) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a by any party if the failure of Effective Time has not occurred on or before June 30, 2001, as long as the Closing party seeking to occur by such date shall be due terminate the Agreement has not breached in any material respect its obligations under this Agreement in any manner that will have proximately contributed to the failure of to consummate the Merger on or before such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(c) by either the Company, TBIO or Parent if (i) a statute, rule, regulation or executive order will have been enacted, entered or promulgated prohibiting the Company if any Restraint having any consummation of the effects set forth in Section 6.1(bMerger substantially on the terms contemplated hereby or (ii) shall be in effect an order, decree, ruling or injunction will have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and shall such order, decree, ruling or injunction will have become final and nonappealable; provided, that nonappealable and the party seeking to terminate this Agreement pursuant to this Section 7.1(c8.01(c) shall will have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company if Merger is not approved by the Company Stockholders’ Meeting requisite vote (including any adjournments or postponements thereofwritten consent) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that of the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to stockholders of the Company’s material breach of this Agreement;
(e) by either TBIO or Parent or if the Board of Directors of the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by fails to recommend this Agreement shall not have been obtained; provided, however, that to the right stockholders of the Company or has withdrawn or modified in a manner adverse to terminate under this Section 7.1(e) shall not be available to TBIO or Parent where the failure to obtain Parent Stockholder Approval shall have been caused by its approval or related to Parent’s material breach recommendation of this Agreement;Agreement and the transactions contemplated hereby; or
(f) by either the Company, TBIO or Parent if Parent shall there will have breached or failed to perform in any been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the respective conditions set forth in Section 6.1 Article VII, as the case may be, not to be satisfied, and such breach is incapable of being cured or Section 6.2 and (ii) is will not have been cured within 30 15 days of receipt of the written after notice contemplated thereof will have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.18.01, this Agreement shall will terminate (except for the confidentiality provisions of Section 5.01 and the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.68.02), and there shall will be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Samples: Merger Agreement (Transgenomic Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders shareholders of Parent the Company (except as otherwise provided below): Agreement and the Company:Plan of Merger
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company if or Parent upon written notice to the Merger other party, if:
(i) the Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before August 3, 2011 (the “End Date”), provided, however, that ) and the right party seeking to terminate this Agreement pursuant to this Section 7.1(b7.1(b)(i) shall not be available to a party if have breached its obligations under this Agreement in any manner that shall have proximately caused the failure of to consummate the Closing to occur by such date shall be due to Merger on or before the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this AgreementEnd Date;
(cii) an injunction or order shall have been entered by either Parent a court of competent jurisdiction or other Governmental Entity permanently restraining, enjoining or otherwise prohibiting the Company if any Restraint having any consummation of the effects set forth in Section 6.1(b) shall be in effect Merger and such injunction or order shall have become final and nonappealablenon-appealable; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c7.1(b)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;injunction or order in accordance with Section 5.6; or
(diii) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Company Stockholder Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, provided that the right to terminate under this Agreement pursuant to this Section 7.1(d7.1(b)(iii) shall not be available to the Company where the failure to obtain the Company Stockholder Shareholder Approval shall have been is proximately caused by (a) a Superior Proposal Recommendation that is not permitted by Section 5.3(b) or related to the Company’s (b) a material breach by the Company of this AgreementSection 5.4;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(fc) by the CompanyCompany upon written notice to Parent, if if:
(i) Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (ix) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (iiy) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date or, if capable of being cured, shall not have been cured within (A) 20 calendar days following receipt of written notice from the Company of such breach or (B) any shorter period of time that remains between the date of such written notice and the End Date, provided, provided that the Company shall have given Parent written notice, delivered at least 30 days is not then in breach of this Agreement so as to cause any of the conditions set forth in Section 6.1 or Section 6.3 not to be satisfied; or
(ii) prior to such termination the receipt of the Company Shareholder Approval, (but no later than a) the expected Closing Date), stating Board authorizes the Company’s intention , subject to terminate complying with the terms of Section 5 hereof, to enter into an Acquisition Agreement with respect to a Superior Proposal, (b) concurrently with or immediately following the termination of this Agreement, the Company enters into an Acquisition Agreement with respect to a Superior Proposal, (c) the Company has complied in all material respects with Section 5.3 of this Agreement pursuant and (d) immediately prior to this Section 7.1(f) and the basis for or concurrently with such termination;, the Company pays to Parent the Termination Fee in immediately available funds in accordance with Section 7.2(a).
(gd) by ParentParent upon written notice to the Company, if if:
(i) the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (ix) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions6.1, or for liability arising out Agreement and Plan of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.Merger
Appears in 1 contract
Samples: Agreement and Plan of Merger (Silverleaf Resorts Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the respective stockholders of Parent EDO and the CompanyAIL:
(a) by the mutual written consent of Parent EDO, Merger Sub and the CompanyAIL;
(b) by either Parent AIL or the Company EDO if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before June 15, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2000; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 8.1(b) shall not have breached in any material respect its obligations under this agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either AIL or EDO if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements substantially on the terms contemplated hereby and thereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements substantially on the terms contemplated hereby and thereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided that the party seeking to terminate this Agreement pursuant to this clause 8.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to or remove such Restraintinjunction, order or decree;
(d) by either Parent AIL or EDO if (i) the Company if the Company Stockholders’ Meeting holders of issued and outstanding shares of EDO Common Stock and EDO Preferred Stock (including any adjournments or postponements thereofvoting together as a single class) shall have concluded failed to approve the Share Issuance at the EDO Meeting or any adjournment thereof or (ii) the holders of issued and Company Stockholder Approval contemplated by outstanding Common Shares shall have failed to approve and adopt this Agreement shall not have been obtained; provided, however, that at the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by AIL Meeting or related to the Company’s material breach of this Agreementany adjourned thereof;
(e) by either Parent AIL or EDO if the Defense Systems Agreement or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Management Stock Purchase Agreement shall not have has been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementterminated in accordance with its terms;
(f) by AIL if (i) the Company, if Parent shall have breached representations and warranties of EDO and Merger Sub contained in Section 2 or failed to perform in any Ancillary Agreement are not, ignoring for these purposes any qualification as to materiality or EDO Material Adverse Effect, (A) true and correct in all material respect any respects at and as of its representationsthe date hereof, warrantiesand (B) true and correct in all material respects at and as of the Effective Time with the same effect as though made at and as of the Effective Time (except for representations and warranties made of a specific date, covenants or other agreements contained which must be true and correct in all material respects as of such date, and except as expressly contemplated by this Agreement), which or (ii) EDO or Merger Sub has materially breached any agreement, covenant or condition required by this Agreement to be performed or complied with by EDO or Merger Sub prior to or at the Effective Time, and in the case of either clause (i) or (ii), such breach or failure to perform be true and correct shall not be curable or shall not have been cured within 15 days after notice thereof shall have been received by EDO;
(g) by EDO if (i) would result the representations and warranties of AIL contained in a failure Section 3 or in any Ancillary Agreement are not, ignoring for these purposes any qualification as to materiality or AIL Material Adverse Effect, (A) true and correct in all material respects at and as of the date hereof, and (B) true and correct in all material respects at and as of the Effective Time with the same effect as though made at and as of the Effective Time (except for representations and warranties made of a condition set forth specific date, which must be true and correct in Section 6.1 all material respects as of such date, and except as expressly contemplated by this Agreement), or Section 6.2 and (ii) is AIL has materially breached any agreement, covenant or condition required by this Agreement to be performed or complied with by it prior to or at the Effective Time, and in the case of either clause (i) or (ii), such breach or failure to be true and correct shall not be curable or shall not have been cured within 30 15 days after notice thereof shall have been received by AIL;
(h) by EDO if the Board of receipt Directors of AIL shall have (i) withdrawn or modified in a manner adverse to EDO, or proposed publicly to withdraw or modify in a manner adverse to EDO, its position with respect to this Agreement and the transactions contemplated hereby or (ii) approved or recommended, or proposed publicly to approve or recommend, an AIL Acquisition Transaction;
(i) by AIL if the Board of Directors of EDO shall have (i) withdrawn or modified in a manner adverse to AIL, or proposed publicly to withdraw or modify in a manner adverse to AIL, its position with respect to this Agreement and the transactions contemplated hereby or (ii) approved or recommended, or proposed publicly to approve or recommend, an EDO Acquisition Transaction, provided that AIL may not terminate this Agreement pursuant to this Section 8.1(i)(ii) unless (I) EDO has notified AIL of its intent to approve or recommend such EDO Acquisition Transaction pursuant to Section 5.2(b)(ii), (II) prior to the end of the written notice contemplated by the proviso below five Business Day period specified in this Section 7.1(f5.2(b)(ii) or cannot be cured by the End Date, provided, AIL has notified EDO that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention it intends to terminate this Agreement pursuant to this Section 7.1(f8.1(i)(ii), and (III) five Business Days have elapsed since the end of the five Business Day period specified in Section 5.2(b)(ii) and the basis for EDO has failed to publicly recommend against such terminationEDO Acquisition Transaction;
(gj) by Parent, AIL if the Company shall have breached or failed AIL enters into an AIL Acquisition Agreement pursuant to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date4.10(a)(ii), stating Parent’s intention to provided that AIL may not terminate this Agreement pursuant to this Section 7.1(g8.1(j) unless and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
until (i) five Business Days have elapsed following delivery to EDO of a written notice of the determination by the CompanyBoard of Directors of AIL to terminate this Agreement, and during such five Business Day period AIL informs EDO of the terms and conditions of the AIL Acquisition Transaction and the identity of the person making such AIL Acquisition Transaction, and (ii) at the end of such five Business Day period the Board of Directors of AIL makes a good faith judgment, after consultation with outside counsel, that, taking into account any time prior amendment of the terms of this Agreement or the Merger offered by EDO or any firm proposal (without conditions) by EDO to obtaining Company Stockholder Approvalamend the terms of this Agreement or the Merger, in order failure to enter into the AIL Acquisition Agreement would still constitute a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations breach of fiduciary duties under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2applicable Law;
(k) by Parent, AIL if there (I) EDO has been a Company Change notified AIL of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this its intent to enter into an EDO Acquisition Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.64.10(b)(ii), and there shall be no other liability on (II) at the part end of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for five Business Day period specified in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.Section 4.10(b)
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders shareholders of Parent and the Company:Company (except as otherwise provided below):
(a) by the mutual written consent of Parent the Company and the Company;
Parent; (b) by either Parent or the Company if or Parent upon written notice to the Merger other party, if:
(i) the Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before August 3, 2011 (the “End Date”), provided, however, that ) and the right party seeking to terminate this Agreement pursuant to this Section 7.1(b7.1(b)(i) shall not be available to a party if have breached its obligations under this Agreement in any manner that shall have proximately caused the failure of to consummate the Closing to occur by such date shall be due to Merger on or before the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this AgreementEnd Date;
(cii) an injunction or order shall have been entered by either Parent a court of competent jurisdiction or other Governmental Entity permanently restraining, enjoining or otherwise prohibiting the Company if any Restraint having any consummation of the effects set forth in Section 6.1(b) shall be in effect Merger and such injunction or order shall have become final and nonappealablenon-appealable; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c7.1(b)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;injunction or order in accordance with Section 5.6; or
(diii) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Company Stockholder Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, provided that the right to terminate under this Agreement pursuant to this Section 7.1(d7.1(b)(iii) shall not be available to the Company where the failure to obtain the Company Stockholder Shareholder Approval shall have been is proximately caused by (a) a Superior Proposal Recommendation that is not permitted by Section 5.3(b) or related to the Company’s (b) a material breach by the Company of this AgreementSection 5.4;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(fc) by the CompanyCompany upon written notice to Parent, if if:
(i) Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (ix) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (iiy) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date or, if capable of being cured, shall not have been cured within (A) 20 calendar days following receipt of written notice from the Company of such breach or (B) any shorter period of time that remains between the date of such written notice and the End Date, provided, provided that the Company shall have given Parent written notice, delivered at least 30 days is not then in breach of this Agreement so as to cause any of the conditions set forth in Section 6.1 or Section 6.3 not to be satisfied; or
(ii) prior to such termination the receipt of the Company Shareholder Approval, (but no later than a) the expected Closing Date), stating Board authorizes the Company’s intention , subject to terminate complying with the terms of Section 5 hereof, to enter into an Acquisition Agreement with respect to a Superior Proposal, (b) concurrently with or immediately following the termination of this Agreement, the Company enters into an Acquisition Agreement with respect to a Superior Proposal, (c) the Company has complied in all material respects with Section 5.3 of this Agreement pursuant and (d) immediately prior to this Section 7.1(f) and the basis for or concurrently with such termination;, the Company pays to Parent the Termination Fee in immediately available funds in accordance with Section 7.2(a).
(gd) by ParentParent upon written notice to the Company, if if:
(i) the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (ix) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date6.1, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Stockholders:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either the Company or Parent if there shall be any Law that makes consummation of the Merger or the Share Issuance illegal or otherwise prohibited, or if any judgment, injunction, order or decree of a competent Governmental Authority enjoining the Company or Parent from consummating the Merger or the Share Issuance shall have been entered and such judgment, injunction, order or decree shall have become final and nonappealable; provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall have used its commercially reasonable efforts to render inapplicable such Law or regulation or remove such judgment, injunction, order or decree as required by Section 5.7;
(c) by either the Company or Parent if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof before 11:59 p.m. Eastern Time on December 7, 2015 (the “End Date”), ; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b7.1(c) shall not be available to a party if any Party whose material breach of any representation, warranty covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Closing to occur by such date shall be due to on or before the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such RestraintEnd Date;
(d) by either Parent prior to obtaining the Company Stockholder Approval (i) at any time following an Adverse Recommendation Change by the Company Board or (ii) if after the date of this Agreement a Company Acquisition Proposal is publicly announced or disclosed (or any person shall have publicly announced an intention (whether or not conditional) to make such Company Acquisition Proposal) and the Company Board fails to affirm the Company Board Recommendation within five Business Days after receipt of a written request from Parent to do so with respect to such Company Acquisition Proposal (provided, however, that in no event will the Company Board be required to affirm the Company Board Recommendation more than once with respect to any particular Company Acquisition Proposal or more than once with respect to a material amendment thereof);
(e) by Parent or the Company if the Company Stockholders’ Stockholders Meeting has concluded (including after taking into account any adjournments adjournment or postponements postponement thereof) shall have concluded ), the Company Stockholders voted and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by Parent or the Company, Company if Parent there shall have breached or failed to perform in any material respect been a breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, or if any Event shall have occurred, which breach or failure to perform (i) Event would result in a the failure of a condition one or more of the conditions set forth in Section 6.1 6.2(a), Section 6.2(b) or Section 6.2 6.2(c) (in the case of a breach by, or Event with respect to, Parent) or Section 6.3(a), Section 6.3(b) or Section 6.3(c) (in the case of a breach by, or Event with respect to, the Company) to be satisfied on or prior to the End Date, and such breach or Event shall not be capable of being cured or shall not have been cured by the earlier of (i) the End Date and (ii) is not cured within 30 days of receipt of the Business Days after detailed written notice contemplated thereof shall have been received by the proviso below Party alleged to be in this Section 7.1(f) breach or cannot be cured by the End Datewith respect to which an Event is alleged to have occurred, provided, however, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention Party seeking to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
is not then in material breach of any representation, warranty or covenant under this Agreement; (g) by Parent, Parent if the Company there shall have breached or failed to perform in any been a material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d5.4(a); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Samples: Merger Agreement (Insite Vision Inc)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof November 3, 2020 (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date the End Date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company or Parent if any Restraint having any (i) an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the effects set forth in Section 6.1(b) shall be in effect Merger and such injunction shall have become final and nonappealablenon-appealable; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, or (ii) any Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced, or entered any Law permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such Law shall have become final and non-appealable;
(d) by either Parent or the Company or Parent if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company or Parent if the Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is shall not have been cured within 30 thirty (30) days following receipt by Parent of receipt of the written notice contemplated of such breach from the Company (such notice to describe such breach in reasonable detail), or which breach, by the proviso below in this Section 7.1(f) or its nature, cannot be cured by prior to the End Date, provided, Date (provided that the Company shall have given Parent written noticeis not then in material breach of any representation, delivered at least 30 days prior to such termination (but no later than the expected Closing Datewarranty, covenant or other agreement contained herein), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is shall not have been cured within 30 thirty (30) days following receipt by the Company of receipt of the written notice contemplated of such breach from Parent (such notice to describe such breach in reasonable detail), or which breach, by the proviso below in this Section 7.1(g) or its nature, cannot be cured by prior to the End Date, provided, Date (provided that Parent shall have given the Company written noticeis not then in material breach of any representation, delivered at least 30 days prior to such termination (but no later than the expected Closing Datewarranty, covenant or other agreement contained herein), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any a Company Change of their respective obligations under Section 5.3Recommendation;
(i) by the Company in the event of a Parent Change of Recommendation;
(j) by Parent, at any time prior to obtaining the Parent Stockholder Approval, in order to enter into a definitive agreement with respect to a Parent Superior Offer, if Parent has complied with its obligations under Section 5.5(e) and, in connection with such termination by Parent pursuant to this Section 7.1(j), Parent pays to the Company in immediately available funds the Termination Fee required to be paid by Section 7.2(b); or
(k) by the Company, at any time prior to obtaining the Company Stockholder Approval, in order to enter into a written definitive agreement for with respect to a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided5.4(e) and, however, that any in connection with such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent 7.1(k), the Company pays to Parent in immediately available funds the Company Termination Fee in accordance with required to be paid by Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d7.2(a); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 8.5, 8.6, 8.11 and 8.68.14), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or intentional or material a willful breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity. For purposes of this Agreement, “willful breach” means a breach that is a consequence of an act or omission undertaken by the breaching party with the knowledge that the taking of, or failure to take, such act would, or would reasonably be expected to, cause or constitute a material breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (KLX Energy Services Holdings, Inc.)
Termination or Abandonment. Notwithstanding anything in a. It shall be cause for the immediate termination of this Agreement Contract if, after its execution, the CITY determines that:
i) Either the CONSULTANT or any of its principals, partners or corporate officers, if a corporation, including the corporation itself, has plead nolo contendere, or has plead or been found guilty of a criminal violation, whether state or federal, involving, but not limited to, governmental sales or purchases, including but not limited to the contraryrigging of bids, price fixing, or any other collusive and illegal activity pertaining to bidding and governmental contracting; or
ii) CONSULTANT subcontracted, assigned, delegated, transferred its rights, obligations or interests under this Agreement Contract without the CITY’s consent or approval; or
iii) CONSULTANT has filed bankruptcy, become insolvent or made an assignment for the benefit of creditors, or a receiver, or similar officer has been appointed to take charge of all or part of CONSULTANT assets.
b. The CITY may terminate the Contract upon five (5) days written notice by the CITY or its authorized agent to the CONSULTANT for CONSULTANT’s material breach for the failure to provide the Services specified under this Contract.
c. This Contract may be terminated and abandoned at any time prior by either party "with or without cause" by giving thirty (30) days written notice to the Effective Timeother, whether before or after any approval the effective date of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof termination (the “End Termination Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination such termination, the CONSULTANT shall be paid for all Services rendered prior to the Termination Date, provided the CONSULTANT shall have delivered to CITY such statements, accounts, reports and other materials as required under this Contract; however, CONSULTANT shall not be compensated for any anticipatory profits that have not been earned as of this Agreement pursuant the date of the Termination Date. All Services completed by CONSULTANT prior to this Section 7.1, this Agreement the Termination Date shall terminate (except be documented and tangible work documents shall be transferred to and become the sole property of the CITY prior to payment for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on Services rendered.
d. Notwithstanding the part of Parent above or the Company any section herein to the other except under such provisionscontrary, or CONSULTANT shall not be relieved of liability to the CITY for liability arising out damages sustained by the CITY by virtue of fraud or intentional or material any breach of this Agreement or the Contract by CONSULTANT and the CITY may withhold any payments to CONSULTANT for the purpose of setoff until such time as provided for in the Confidentiality Agreementexact amount of damages due the CITY from CONSULTANT is determined. However, in which case the aggrieved party no event shall CONSULTANT be entitled liable to all rights and remedies available at law or in equityCITY for any consequential damages.
Appears in 1 contract
Samples: Consulting Agreement
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before August 30, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1998; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either the Company or Parent if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 7.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintorder, decree, ruling or injunction;
(d) by either Parent or the Company or Parent if the approval of the stockholders of the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain the required vote at the Company Stockholder Approval shall have been caused by Meeting or related to the Company’s material breach of this Agreementany postponement or adjournment thereof;
(e) by either Parent or if the Board of Directors of the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and (i) withdrawn, modified or amended in any respect adverse to Parent Stockholder Approval contemplated by its approval or recommendation of this Agreement shall not have been obtained; providedor any of the transactions contemplated herein, however, that (ii) failed to include in the right Proxy Statement when mailed the recommendation of the Board of Directors of the Company or (iii) recommended to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to its stockholders any Acquisition Proposal of a Person other than Parent’s material breach of this Agreement;
(f) by the Company (i) if the Board of Directors of the Company determines to accept an Acquisition Proposal that such Board has determined in good faith, after consultation with its outside legal counsel and financial advisor, to be more favorable to its stockholders than the transactions contemplated hereby, (ii) if the Board of Directors of the Company takes any action set forth in subsection (e) of this Section 7.1; or (iii) upon notice to Parent, authorized by the Board of Directors of the Company, if at any time during the period between the date hereof and the two days prior to the Effective Time, the average of the Parent Common Stock closing prices, regular way, on the NYSE for any fifteen (15) consecutive trading day period is less than or equal to $49.85 (the "Floor Price") and, in the event the Custom Index at the time of any such calculation declines from the date hereof, the amount by which the percentage decrease in the average of the Parent Common Stock from $62.3125 exceeds the percentage decrease, if any, in the Custom Index from $36.0375 is greater than or equal to 20 percentage points; provided, however, that no right of termination shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in arise under this Agreement, which breach or failure to perform Section 7.1(f)(iii) if (ix) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured Parent elects within 30 5 business days of receipt of such notice to increase the written number of shares of Parent Common Stock included in the Merger Consideration such that the per share value of the Parent Common Stock consideration (valued at the Floor Price) is at least equal to the per share consideration that would have been received if the Conversion Number had been equal to a number such that the per share value of the Company Common Stock is equal to $41.50, (y) the issuance of the additional shares of stock does not necessitate a vote of the shareholders of the Parent to approve such issuance and (z) in the opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP and Akin, Gump, Strauss, Hxxxx & Fxxx, L.L.P., the transaction as adjusted qualifies as a tax-free "reorganization" within the meaning of Section 368 of the Code; provided, further, however, that no right of termination shall arise under Section 7.1(f)(iii) if, prior to the delivery of notice contemplated by the proviso below Company to Parent provided for in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date7.1(f)(iii), stating the Company’s intention average of closing prices for a subsequent fifteen (15) consecutive trading day period is not less than or equal to the Floor Price or for the same period the amount by which the percentage decrease in the average prices of the Parent Common Stock exceeds the percentage decrease in the Custom Index is not greater than or equal to 20 percentage points. The party desiring to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company 7.1 shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the give written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to of such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityparty.
Appears in 1 contract
Samples: Merger Agreement (Clear Channel Communications Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger this Agreement by the stockholders of Parent and the Company:
Arcadian: (a) by the mutual written consent of Parent PCS and the Company;
Arcadian; (b) by either Parent PCS or the Company Arcadian if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before February 28, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1997; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c8.01(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date; (c) by PCS or Arcadian if a United States federal or state court of competent jurisdiction or United States governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions substantially on the terms contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 8.01(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
restraint, injunction or prohibition; (d) by either Parent or PCS if (i) the Company if approvals of the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval stockholders of Arcadian contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval the required vote at a duly held meeting of stockholders or any adjournment thereof or (ii) prior to the Special Meeting, the Board of Directors of Arcadian shall have been caused by withdrawn or related modified, or resolved to the Company’s material breach withdraw or modify its approval or recommendation of this Agreement;
; (e) by either Parent Arcadian or PCS, by a written notice delivered to the other party on or before 5:00 p.m. (Memphis time) on the 14th day after the date of this Agreement, if Arcadian's or PCS's, as the case may be, investigation of the business and operations of the other party shall have revealed the existence of I-27 29 a fact or condition relating to such other party or its Subsidiaries that (i) is not disclosed in the PCS Disclosure Documents or the Company if Parent Stockholders’ Meeting Arcadian SEC Documents, as the case may be, and (including ii) in the terminating party's reasonable, good-faith judgment has had or may reasonably be expected to have a Material Adverse Effect on the other party in excess of any adjournments provision made with respect thereto in the other party's December 31, 1995 or postponements thereofJune 30, 1996 financial statements included in the PCS Disclosure Documents or Arcadian SEC Documents, as the case may be. Any such notice delivered pursuant to the first sentence of this Section 8.01(e) shall outline in reasonable detail the basis for such termination; (f) by Arcadian, if its Board of Directors shall have concluded determined, in its good faith judgment after consultation with legal counsel and Parent Stockholder Approval financial advisors, that such Board's fiduciary duties require termination of this Agreement; (g) by Arcadian, if the approval of the stockholders of Arcadian contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where obtained by reason of the failure to obtain Parent Stockholder Approval shall have been caused by the required vote at a duly held meeting of such stockholders or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
adjournment thereof; (h) by Parent Arcadian or by PCS, if the Company, in the event the other party Final PCS Common Stock Price is either (i) less than $65.00 or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(ii) greater than $90.00; and (i) by PCS, by a written notice delivered to Arcadian on or before 5:00 p.m. Memphis time on the Company14th day after the date of this Agreement based on PCS's reasonable determination that the cost of causing Arcadian's interests in Arcadian Trinidad Corporation, at Arcadian Fertilizer Corporation, AA Sulfuric Corporation, August Service Company Inc., Arcadian LCD Corporation and Arcadian FMF, L.L.C. and any time prior other interests in corporations or limited liability companies held by Arcadian Partners, L.P. or Arcadian Fertilizer L.P. to obtaining Company Stockholder Approvalbe held through a chain of corporations with no partnership in the chain of ownership exceeds $25,000,000 in addition to the costs of retiring debt (including, in order to enter into a written definitive agreement for a Company Superior Offerthe costs of retiring such debt, if the Company has complied with its obligations under Section 5.3(dall prepayment premiums payable thereon); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.18.01, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6)terminate, and there shall be no other liability under this Agreement on the part of Parent or the Company either party to the other party except under that (i) the obligations contained in Section 9.02 and in the Confidentiality Agreement shall survive the termination hereof and (ii) no such provisions, termination shall relieve either party of any liability or for liability damages arising out of fraud or intentional or material a breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityby that party.
Appears in 1 contract
Samples: Merger Agreement (Potash Corporation of Saskatchewan Inc)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the ASARCO Merger by the stockholders shareholders of Parent and the CompanyASARCO:
(a) by the mutual written consent of Parent ASARCO and the CompanyParent;
(b) by either Parent ASARCO or Parent, if (i) the Tender Offer shall have expired without any shares of ASARCO Common Stock being purchased pursuant thereto or (ii) the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the Company if the Merger shall Tender Offer has not have been consummated on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before February 29, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2000; provided, that the party seeking to terminate this Agreement pursuant to this clause 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure of shares of ASARCO Common Stock to have been purchased on or before such date;
(c) by Parent, if, prior to the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the purchase of any shares of ASARCO Common Stock pursuant to the Tender Offer, ASARCO shall have breached Section 7.1(c5.7;
(d) by ASARCO, in accordance with Section 5.7(b), prior to the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the acceptance for purchase of any shares of ASARCO Common Stock pursuant to the Tender Offer, provided that ASARCO shall have complied with all provisions of Sections 5.7(b); and provided further that any such termination will not be effective unless the Termination Fee pursuant to Section 7.4 shall have been paid contemporaneously with such termination.
(e) by Parent, if (i) prior to the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the purchase of any shares of ASARCO Common Stock pursuant to the Tender Offer, the ASARCO Board of Directors or any committee thereof shall have amended, withdrawn or modified (or publicly disclosed its intention to do so) in a manner adverse to Parent its approval or recommendation of the Tender Offer or this Agreement (it being understood that ASARCO taking no position or remaining neutral with respect to a tender or exchange offer from a third party (a "Neutral Statement"), or making a recommendation in favor of an ASARCO Takeover Proposal, in a filing made pursuant to Rules l4d-9 and 14e-2(a) promulgated under the Exchange Act shall constitute an adverse modification of its approval or recommendation of the Tender Offer or ASARCO Merger, unless, in the case of a Neutral Statement only, contemporaneously with the filing of such Neutral Statement ASARCO publicly confirms that it continues to recommend approval of the ASARCO Merger and continues to actively support the ASARCO Merger thereafter), or (ii) any condition to the Tender Offer described in Annex A hereto shall not have been satisfied on or prior to the earlier of 30 days of notice that such condition has not been satisfied and February 29, 2000;
(f) by ASARCO, if all of the conditions to the Tender Offer have been satisfied and Parent or the Purchaser shall have terminated the Tender Offer without purchasing any Shares thereunder; provided, that ASARCO shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure of shares of ASARCO Common Stock to have been purchased in the Tender Offer;
(g) by either Parent or ASARCO, if any court of competent jurisdiction or other governmental body shall have issued an order (other than a temporary restraining order), decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the purchase of ASARCO Common Stock pursuant to the ASARCO Merger, and such order, decree, ruling or other action shall have become final and nonappealable; provided that the party seeking to terminate this Agreement shall have used its reasonable best efforts to prevent the entry of and to remove or lift such Restraint;
(d) by either Parent order, decree or the Company if the Company Stockholders’ Meeting (including ruling; or any adjournments statute, rule regulation, order, injunction or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval decree shall have been caused enacted, entered, promulgated or enforced by any court, administrative agency or related to commission or other governmental authority or instrumentality which prohibits or makes illegal the Company’s material breach consummation of this Agreement;
(e) by either Parent the ASARCO Merger and which, in the case of any such order, injunction or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) decree, shall have concluded become final and Parent Stockholder Approval contemplated by this Agreement shall not have been obtainednonappealable; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;or
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior OfferASARCO, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant shareholders of ASARCO fail to this Section 7.1(i) shall be void approve and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of adopt this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for and approve the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on ASARCO Merger at the part of Parent ASARCO Shareholders Meeting or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityany adjournment thereof.
Appears in 1 contract
Samples: Merger Agreement (Asarco Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyTarget:
(a) by the mutual written consent of Parent Target and the CompanyAcquiror;
(b) by either Parent Target or the Company Acquiror if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before February 9, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2005; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 9.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either Target or Acquiror if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 9.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the CompanyTarget, if Parent Acquiror shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 8.2(b) or Section 6.2 (d), and (ii) is incapable of being cured by Acquiror or is not cured within 30 days of receipt notice of the written notice contemplated by the proviso below in this Section 7.1(f) such breach or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;failure; or
(ge) by ParentAcquiror, if the Company Target shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 8.3(b) or Section 6.3 (c), and (ii) is incapable of being cured by Target or is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries breach or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityfailure.
Appears in 1 contract
Samples: Merger Agreement (Motient Corp)
Termination or Abandonment. Notwithstanding anything to the contrary contained in this Agreement to the contraryAgreement, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or or, subject to the terms hereof, after any approval by the stockholders of Vowel or Consonant of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyMergers:
(a) by the mutual written consent of Parent Vowel and the CompanyConsonant;
(b) by either Parent Vowel or Consonant, upon written notice to the Company other Parties, if (i) the Merger Effective Time shall not have occurred on or before December 31, 2009 (the “Outside Date”) or (ii) the Registration Statement shall not have been consummated filed on or prior to the six (6) month anniversary of the date hereof before September 9, 2009 (the “End Registration Statement Filing Date”) solely as a result of the failure of either Vowel or Consonant to obtain audited financial statements that are required for inclusion in the Registration Statement (including the respective independent auditors report and any consent required by the applicable auditor) (collectively, the “Required Financial Statements”), ; provided, howeverthat, that the right Party seeking to terminate this Agreement pursuant to under any provision of this Section 7.1(b) shall not be available to a party if have breached in any material respect its obligations under this Agreement in any manner that shall have been the cause of, or resulted in, the failure of the Closing Effective Time to occur by such date shall be due to on or before the Outside Date or the failure of such party to perform obtain the Required Financial Statements on or comply in all material respects with before the covenants and agreements of such party set forth in this AgreementRegistration Statement Filing Date, as the case may be;
(c) by either Parent Vowel or Consonant, upon written notice to the Company other Parties, if any Restraint having permanently enjoining or otherwise prohibiting the consummation of any of the effects set forth in Section 6.1(b) shall be in effect and shall have Holdings III Merger Transactions or the Mergers has become final and nonappealable; non-appealable, provided, that the party Party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best such efforts as may be required by Section 5.5 to prevent the entry of prevent, oppose and to remove such Restraint;
(d) by either Parent Vowel or Consonant, upon written notice to the Company other Parties, if the Company Stockholders’ Vowel Meeting (including any adjournments or postponements thereof) shall have concluded and Company the Vowel Stockholder Approval contemplated by this Agreement shall not have been obtained;
(e) by Vowel, upon written notice to the other Parties, if: (i) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Consonant or Holdco set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 6.1 or Section 6.2 not to be satisfied; (ii) Vowel shall have delivered to Consonant written notice of such breach or failure; and (iii) such breach or failure is incapable of being cured (or has not been cured) in all material respects by the Outside Date; provided, however, that Vowel shall not have the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right pursuant to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s if it is then in material breach of any of its obligations, representations or warranties under this Agreement;
(f) by Vowel, upon written notice to the Companyother Parties, which notice may only be given after the SEC Effective Date until the Business Day immediately preceding the Vowel Stockholder Approval, in order to enable Vowel to enter into a definitive agreement providing for a transaction that is a Vowel Superior Proposal concurrently with such termination, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Vowel has complied with Section 6.1 or Section 6.2 and 5.3(c), (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for or concurrently with such termination, Vowel pays the Vowel Termination Fee and (iii) such Vowel Superior Proposal was first received after the SEC Effective Date;
(g) by ParentConsonant, if upon written notice to the Company shall have breached other Parties, if: (i) a breach of any representation or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach warranty or failure to perform (i) any covenant or agreement on the part of Vowel set forth in this Agreement shall have occurred that would result in a failure of a condition cause the conditions set forth in Section 6.1 or Section 6.3 and not to be satisfied; (ii) is not cured within 30 days of receipt of the Consonant shall have delivered to Vowel written notice contemplated of such breach or failure; and (iii) such breach or failure is incapable of being cured (or has not been cured) in all material respects by the proviso below in this Section 7.1(g) or cannot be cured by the End Outside Date, ; provided, however, that Parent Consonant shall not have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention right to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such terminationif it is then in material breach of any of its obligations, representations or warranties under this Agreement;
(h) by Parent Consonant, upon written notice to the other Parties, if, (A) whether or not permitted to do so, the CompanyVowel Board or any committee thereof shall have withdrawn or modified (in a manner adverse to Consonant) its Vowel Recommendation, or approved or recommended any Vowel Alternative Proposal or Vowel Superior Proposal, (B) Vowel shall have failed to include in the Prospectus/Proxy Statement the Vowel Recommendation, (C) a tender or exchange offer relating to the Vowel Common Stock has been commenced and Vowel fails to send to its security holders pursuant to Rule 14e-2 promulgated under the Exchange Act, within ten (10) Business Days after the commencement of such tender or exchange offer, a statement disclosing that Vowel’s Board recommends the rejection of such tender or exchange offer, (D) a Vowel Alternative Proposal or Vowel Superior Proposal is publicly announced, and Vowel fails to issue, within ten (10) Business Days after such Vowel Alternative Proposal or Vowel Superior Proposal is announced, a press release that reaffirms the Vowel Recommendation that the stockholders of Vowel vote in favor of the adoption of this Agreement, (E) the Vowel Board or any committee thereof fails to reject a Vowel Alternative Proposal and deliver written notice thereof to the other Parties, in each case, within ten (10) Business Days after the event the other party receipt thereof or shall have approved or publicly recommended a Vowel Alternative Proposal, (F) Vowel shall have entered into any letter of intent or similar document or any agreement, contract or commitment (except for a confidentiality agreement referred to in Section 5.3(b) entered into in the circumstances referred to in Section 5.3(b)) accepting any Vowel Superior Proposal or (G) Vowel is in material breach of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective its obligations under set forth in Section 5.3, Section 5.4(a), Section 5.4(c), or Section 5.19;
(i) by (A) Vowel, upon written notice to the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offerother Parties, if the Company Closing has complied with its obligations under not occurred within eleven (11) Business Days following the satisfaction or waiver of all the conditions set forth in Section 5.3(d6.1 and Section 6.3 (other than those conditions that, by their nature, cannot be satisfied until the Closing Date or Effective Time, as applicable, but which conditions would be satisfied if the Closing Date or Effective Time, as applicable, were the date of such notice), including, without limitation, due to the failure of Holdco to fund to the Exchange Agent either $25,000,000 pursuant to Section 2.3(a), the Vowel Expense Reimbursement Amount pursuant to Section 2.3(a), or to pay the Vowel Transaction Expenses (excluding the Vowel Expense Reimbursement Amount) pursuant to Section 7.3(a); provided, however, that any Vowel may not exercise such purported right of termination by until the Company earlier to occur of (i) the Outside Date and (ii) the date that Vowel provided written notice to Consonant that the conditions set forth in Section 6.1 and Section 6.2 are satisfied or waived (other than those conditions set forth in Section 6.2(f), Section 6.2(g) and Section 6.2(h)) or (B) Consonant, upon written notice to the other Parties, if, whether or not the conditions set forth in Section 6.1 and Section 6.3 have been satisfied or waived, Consonant elects to terminate this Agreement prior to the Effective Time other than pursuant to this Section 7.1(iSections 7.1(a), 7.1(b), 7.1(c), 7.1(d), 7.1(g), 7.1(h) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.27.1(k);
(j) by ParentVowel, at any time prior upon written notice to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offerthe other Parties, if Parent has complied with its obligations Vowel is entitled to terminate this Agreement under Section 5.3(d5.21(c); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by ParentConsonant, upon written notice to the other Parties, if there has been a Company Change the number of RecommendationVowel Dissenting Shares is equal to or exceeds 7.5000% of the total number of shares of Vowel Common Stock outstanding at the Effective Time; or
(l) by the CompanyVowel, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company upon written notice to the other except under such provisionsParties, or for liability arising out of fraud or intentional or material breach if, on the Closing Date, the Holdings III Merger Transactions shall not have been consummated in accordance with the terms of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at At any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent this Agreement may be terminated and the CompanyTransactions abandoned:
(a) by the mutual written consent of Parent and the Company, which consent shall have been approved by the action of their respective boards of directors;
(b) by either Parent or the Company (by written notice to the other specifying the applicable provision or provisions hereof pursuant to which such termination is effected):
(i) if the Merger shall Effective Time has not have been consummated on or prior to the six (6) month anniversary of the date hereof occurred by June 10, 2015 (the “End Outside Date”), provided, however, ; provided that the right to terminate this Agreement pursuant to this Section 7.1(b6.1(b)(i) shall not be available to a any party if hereto the breach of whose obligations hereunder have been the primary cause of, or resulted in, either (x) the failure of the Closing conditions to occur by the obligations of the terminating party to consummate the Transactions to be satisfied prior to such date shall be due to termination or (y) the failure of the Effective Time to have occurred prior to such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementtermination;
(cii) by either Parent or if 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 approve this Agreement, and the Company Stockholder Approval shall not have been obtained at the Stockholders’ Meeting (and shall not have been approved at any adjournment or postponement thereof); or
(iii) if any Restraint having any Applicable Law or Order that enjoins or prohibits the consummation of the effects set forth in Section 6.1(b) Merger shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintnon-appealable;
(dc) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available written notice to the Company where specifying the failure applicable provision or provisions hereof pursuant to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;which such termination is effected):
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and if (iiA) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(fCompany Board has effected an Adverse Recommendation Change, (B) or cannot be cured by the End Date, provided, that the Company shall have given Parent written noticeexecuted an Alternative Acquisition Agreement, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(fC) and the basis for such termination;
(g) by Parent, if the Company Board shall have breached or failed to perform in any material respect any of publicly reaffirm its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination recommendation of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for following the provisions public announcement of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the a Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.Takeover Proposal within ten
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the ASARCO Merger by the stockholders respective shareholders of Parent and the CompanyASARCO:
(a) by the mutual written consent of the Board of Directors of Parent and the CompanyASARCO;
(b) by either Parent or ASARCO if, without fault of such terminating party, the Company if purchase of ASARCO Common Stock pursuant to the Merger ASARCO Offer shall not have been consummated occurred on or prior to the six (6) month anniversary before March 31, 2000, which date may be extended by mutual written consent of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;parties hereto; or
(c) by either Parent or the Company ASARCO if any Restraint having court of competent jurisdiction or other governmental body shall have issued an order (other than a temporary restraining order), decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the purchase of ASARCO Common Stock pursuant to the effects set forth in Section 6.1(b) shall be in effect ASARCO Offer or the ASARCO Merger, and such order, decree, ruling or other action shall have become final and nonappealable; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts efforts, subject to prevent the entry of and Section 5.6, to remove or lift such Restraint;
(d) order, decree or ruling; or any statute, rule, regulation, order, injunction or decree shall have been enacted, entered, promulgated or enforced by either Parent any 49 58 court, administrative agency or commission or other governmental authority or instrumentality which prohibits or makes illegal the consummation of the ASARCO Offer or the Company if ASARCO Merger and which, in the Company Stockholders’ Meeting (including case of any adjournments such order, injunction or postponements thereof) decree, shall have concluded become final and Company Stockholder Approval contemplated by this Agreement nonappealable; or there shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the a failure to obtain Company Stockholder Approval shall any required consent or approval under foreign laws or regulations which would prohibit or make the consummation of the ASARCO Offer or the ASARCO Merger illegal or would have been caused by or related to the Company’s material breach of this Agreement;
(e) by either a Material Adverse Effect on Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityASARCO.
Appears in 1 contract
Samples: Merger Agreement (Phelps Dodge Corp)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders shareholders of Parent and the CompanyXxxxx:
(a) by the mutual written consent of Parent Xxxxx and the CompanyLegacy;
(b) by Xxxxx, if there has been a material breach by Legacy of any representation, warranty, covenant or agreement set forth in this Agreement which breach (if susceptible to cure) has not been cured in all material respects within twenty (20) business days following receipt by Legacy of notice of such breach;
(c) by Legacy, if there has been a material breach by Xxxxx of any representation, warranty, covenant or other agreement set forth in this Agreement which breach (if susceptible to cure) has not been cured in all material respects within twenty (20) business days following receipt by Xxxxx of notice of such breach;
(d) by either Parent Xxxxx or Legacy, if (i) there is a law, rule or regulation that makes the Company if consummation of the Merger shall not have been consummated on illegal or prior to the six otherwise prohibited or (6ii) month anniversary any judgment, injunction, order or decree of a court or other Governmental Entity of competent jurisdiction is entered that permanently restrains, enjoins or otherwise prohibits either Xxxxx or Legacy from consummating of the date hereof Merger and such judgment, injunction, order or decree will have become final and nonappealable; or
(e) by either Xxxxx or Legacy, if (i) the “End Date”), provided, however, that Permit is not issued by the right California Commissioner or (ii) Xxxxx fails to obtain the affirmative vote of the holders of a majority of the outstanding shares of Xxxxx Common Stock (with the holders of Xxxxx Series A Common Stock and the holders of Xxxxx Series B Common Stock voting together as a single class) approving the Merger. The party desiring to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure 7.1 will give written notice of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under party, specifying the provision pursuant to which such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equitytermination is being effected.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent, if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of before the date hereof that is 120 calendar days after the date of this Agreement (the “End Termination Date”), provided, however, that ) and (ii) the right party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if have breached in any material respect its obligations under this Agreement in any manner that shall have proximately caused the failure of to consummate the Closing to occur by Merger on or before such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(c) by either Parent the Company, prior to the date that is 20 business days after the date of this Agreement in order to concurrently enter into a letter of intent, agreement in principle, acquisition agreement or other similar agreement with respect to any Company Superior Proposal, but only so long as:
(i) the Company provides Parent with at least five business days prior written notice (“Superior Proposal Notice”) that it intends to enter into such letter of intent, agreement in principle, acquisition agreement or other similar agreement, which Superior Proposal Notice shall specify the reasons for the Company’s intent to enter into such letter of intent, agreement in principle, acquisition agreement or other similar agreement and attach the most current version of such document; and
(ii) during the period of five business days following receipt of a Superior Proposal Notice (the “Parent Review Period”), if any Restraint having any requested by Parent, the Company and its Representatives shall have engaged in good faith negotiations with Parent and its Representatives over amendments or modifications to this Agreement proposed by Parent and the Board of Directors of the effects set forth Company shall, in determining whether to enter into a letter of intent, agreement in principle, acquisition agreement or other similar agreement, take into account any amendments or modifications to this Agreement proposed by Parent. For the avoidance of doubt, (i) if a Company Superior Proposal is received after the date that is 20 business days after the date of this Agreement, then the Company shall not be permitted to terminate this Agreement and (ii) upon receipt by Parent of a Superior Proposal Notice, the Company shall have the right to terminate this Agreement pursuant to this Section 6.1(b7.1(c) upon entering into a letter of intent, agreement in principle, acquisition agreement or other similar agreement with the third party that has made the Company Superior Proposal (or an amended Company Superior Proposal) that is the subject to the Superior Proposal Notice (or such amended notice), even if the Company enters into such letter of intent, agreement in principle, acquisition agreement or other similar agreement on a date that is later than 20 business days after the date of this Agreement; provided, however, that the Company’s right to terminate this Agreement pursuant to this Section 7.1(c) after the 20-business day period following the date of this Agreement, shall be terminate three business days following the expiration of the Parent Review Period in effect connection with a Company Superior Proposal received during such 20-business day period (or an amendment to such Company Superior Proposal);
(d) by Parent, if the Principal Stockholders shall have failed to deliver the Principal Stockholder Consents as contemplated by this Agreement;
(e) by either the Company or Parent, if an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such order, decree, ruling or injunction shall have become final and nonappealable; provided, that non-appealable and the party seeking to terminate this Agreement pursuant to this Section 7.1(c7.1(e) shall have used its all reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent injunction, order, decree or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementruling;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Termination Date, provided, provided that the Company shall have given Parent written notice, delivered at least 30 forty-five (45) days prior to such termination (but no later than the expected Closing Date)termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Termination Date, provided, provided that Parent shall have given the Company written notice, delivered at least 30 forty-five (45) days prior to such termination (but no later than the expected Closing Date)termination, stating Parent’s intention to terminate this the Agreement pursuant to this Section 7.1(g) and the basis for such termination;; and
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has (i) the Merger shall not have been a Parent Change consummated within nine (9) business days of Recommendationthe first date upon which all conditions set forth in Section 6.1 and Section 6.3 (other than 6.3(d)) are satisfied and (ii) at the time of such termination such conditions continue to be satisfied. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the Confidentiality Agreement and the provisions of Sections 7.2, 8.2, 8.4, 8.5 Section 7.2 and 8.6Article VIII), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or intentional or material a breach of this Agreement Agreement, including as provided in Section 8.12, or as provided for in the Confidentiality Agreement, Agreement in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity; provided, however, that nothing herein shall relieve any party from liability for willful breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Samsonite Corp/Fl)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyTarget:
(a) by the mutual written consent of Parent Target and the CompanyAcquiror;
(b) by either Parent Target or the Company Acquiror if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before December 31, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2000; providedPROVIDED, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 8.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either Target or Acquiror if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; PROVIDED, that the party seeking to terminate this Agreement pursuant to this clause 8.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company Acquiror if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Target Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote or related to consent at the Company’s material breach of this AgreementTarget Meeting;
(e) by either Parent or Target in accordance with Section 6.8(b); PROVIDED that, in order for the Company if Parent Stockholders’ Meeting termination of this Agreement pursuant to this paragraph (including any adjournments or postponements thereofe) to be deemed effective, Target shall have concluded complied with all provisions contained in Section 6.8, including the notice provisions therein, and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; providedwith applicable requirements, howeverincluding the payment of the Termination Fee, that the right to terminate under this of Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement8.2;
(f) by the CompanyTarget, if Parent Acquiror shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 7.2(a) or Section 6.2 (b), and (ii) is incapable of being cured by Acquiror or is not cured within 30 days of receipt notice of the written notice contemplated by the proviso below in this Section 7.1(f) such breach or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationfailure;
(g) by ParentAcquiror, if the Company Target shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 7.3(a) or Section 6.3 (b), and (ii) is incapable of being cured by Target or is not cured within 30 days of receipt notice of the written notice contemplated by the proviso below such breach or failure. Except as provided in Sections 8.2 and 9.2 of this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the CompanyAgreement, in the event of the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.18.1, this Agreement shall terminate (except for the provisions of Sections 7.2forthwith become void, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent Acquiror, Sub or the Company Target or any of their respective officers or directors to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to and all rights and remedies available at law obligations of any party hereto shall cease, except that nothing herein shall relieve any party from liability for any misrepresentation or in equitybreach of any covenant or agreement under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Tech Sym Corp)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective TimeTimes, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:Hyde Park Stockholder Approval or Company Member Approval have been obtained (except as otherwise provided below):
(a) by the mutual written consent of Parent Hyde Park and the Company;
(b) by either Parent Hyde Park or the Company Company, if the Merger Mergers shall not have been consummated on or prior to the six (6) month anniversary of the date hereof May 1, 2014 (the “End Date”), ; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party Party if (i) the failure of the Closing to occur by such date shall be due to the failure material breach by such Party of any representation, warranty, covenant or other agreement of such party to perform or comply in all material respects with the covenants and agreements of such party Party set forth in this AgreementAgreement and (ii) the other Party has filed (and is then pursuing) an action seeking specific performance as permitted by Section 8.5;
(c) by either Parent Hyde Park or the Company Company, if any Restraint having any an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the effects set forth in Section 6.1(b) shall be in effect Mergers and such injunction shall have become final and nonappealable; provided, however, that the party seeking right to terminate this Agreement pursuant to under this Section 7.1(c) shall have used not be available to a Party if such injunction was due to the failure of such Party to perform any of its reasonable best efforts to prevent the entry of and to remove such Restraintobligations under this Agreement;
(d) by either Parent Hyde Park or the Company Company, if the Company Stockholders’ Hyde Park Stockholders Meeting (including any adjournments or postponements thereof) shall have concluded and Company the Hyde Park Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent the Company, if after giving effect to the exercise of redemption rights by holders of Hyde Park Common Stock pursuant to the Hyde Park Organizational Documents, Hyde Park does not have at least an aggregate of Forty Million Dollars ($40,000,000) of cash held in the Trust Account.
(f) by Hyde Park or the Company, if the Company if Parent Stockholders’ Unitholders Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder the Company Unitholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(fg) by the Company, if Parent Hyde Park shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if it occurred or was continuing to occur on the Closing Date, would result in a failure of a condition set forth in Section 6.1 6.2(a) or Section 6.2 6.2(b) and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or its nature, cannot be cured prior to the End Date or, if such breach or failure is capable of being cured by the End Date, provided, Hyde Park does not diligently attempt or ceases to diligently attempt to cure such breach or failure after receiving written notice from the Company describing such breach or failure in reasonable detail (provided that the Company shall have given Parent written noticeis not then in material breach of any representation, delivered at least 30 days prior to such termination (but no later than the expected Closing Datewarranty, covenant or other agreement contained herein), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;; and
(gh) by ParentHyde Park, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if it occurred or was continuing to occur on the Closing Date, would result in a failure of a condition set forth in Section 6.1 6.3(a) or Section 6.3 6.3(b) and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or its nature, cannot be cured prior to the End Date or, if such breach or failure is capable of being cured by the End Date, provided, that Parent shall have given the Company does not diligently attempt or ceases to diligently attempt to cure such breach or failure after receiving written notice, delivered at least 30 days prior to notice from Hyde Park describing such termination breach or failure in reasonable detail (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, provided that Hyde Park is not then in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement any representation, warranty, covenant or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityother agreement contained herein).
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent Patriot and the CompanyTrident;
(b) by either Parent Trident or the Company Patriot if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof February 1, 2013 (the “End Outside Date”), ; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b7.01(b) shall not be available to a party Party if the failure of the Closing to occur by such date shall be due to the failure of such party Party to perform or comply in all material respects with the covenants and agreements of such party Party set forth in this Agreement or the Separation Agreement;
(c) by either Parent Trident or the Company Patriot if (A) there is any Restraint having any Law that makes consummation of the effects set forth in Section 6.1(bTransactions illegal or otherwise prohibited or (B) shall be in effect any Governmental Authority having competent jurisdiction has issued an order, decree or ruling or taken any other action (which the terminating Party must have complied with its obligations hereunder to resist, resolve or lift) permanently restraining, enjoining or otherwise prohibiting any material component of the transactions hereunder, and shall have become such order, decree, ruling or other action becomes final and nonappealablenon-appealable; provided, however, that the party seeking right to terminate this Agreement pursuant to this Section 7.1(c7.01(c) shall have used not be available to any Party whose failure to perform any of its reasonable best efforts to prevent the entry of and to remove obligations under Section 5.01 resulted in such Restraintorder, decree or ruling;
(d) by either Parent Trident or the Company Patriot if the Company Stockholders’ Patriot Shareholder Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder the Patriot Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d7.01(d) shall not be available to the Company Patriot where the failure to obtain Company Stockholder the Patriot Shareholder Approval shall have been caused by or related to the CompanyPatriot’s material breach of this Agreement;
(e) by either Parent Trident or Patriot if the Company if Parent Stockholders’ Trident Shareholder Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder the Trident Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e7.01(e) shall not be available to Parent Trident where the failure to obtain Parent Stockholder the Trident Shareholder Approval shall have been caused by or related to ParentTrident’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and the Offers and the Mergers may be abandoned at any time prior to the first to occur of the Acceptance Time or the First Effective TimeTime (if applicable, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Stockholder Approval shall have been obtained (unless otherwise provided below)), only as follows:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) (i) by either Parent or the Company or Parent, if the Merger Offer shall not have been consummated on terminated or prior expired in accordance with its terms (subject to the six (6rights and obligations of Parent and Purchaser to extend the Offer pursuant to Section 1.1(c)(ii)) month anniversary without Purchaser having accepted for payment any shares of Company Common Stock pursuant to the date hereof (the “End Date”), Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b8.1(b) shall not be available (A) to any Party whose action or failure to fulfill any obligations under this Agreement proximately causes (1) any of the Offer Conditions to fail to be satisfied or (2) the expiration or termination of the Offer in accordance with the terms of this Agreement and the Offer without Purchaser having accepted for payment any shares of Company Common Stock; (B) to either the Company or Parent if a party Meeting Election shall have been made; or (C) to the Company, at any time, if less than ninety-five percent (95%) of the shares of Company Common Stock subject to any Voting and Support Agreement shall have been tendered into the Offer and have not been withdrawn, or (ii) by either the Company or Parent if the failure of Company Stockholder Approval shall not have been obtained at the Closing to occur Company Stockholder Meeting duly convened and held or any adjournment or postponement thereof permitted by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either the Company or Parent prior to the Acceptance Time, or if an Offer Termination has occurred, prior to the Closing, if the Closing shall not have occurred on or prior to 12:00 midnight, New York City time, on February 4, 2016 (the “End Date”); provided, however, that if (i) all of the Offer Conditions, other than the conditions set forth in paragraph (A) of Annex A, shall have been satisfied or waived (other than the Minimum Condition and the delivery of the certificates and opinions referenced in paragraph (E)(4), (E)(5) and (E)(6) of Annex A, which certificates and opinions only need to be capable of being delivered), and the Offer shall not have been terminated theretofore, or, (ii) if the Offer Termination shall have occurred, if all of the conditions set forth in Article VII, other than the condition set forth in Section 7.1(a)(ii) shall have been satisfied or waived (and other than the delivery of certificates and opinions referenced in Section 7.2(c), Section 7.2(d), Section 7.3(c) and Section 7.3(d), which certificates and opinions need only be capable of being delivered (or such delivery has been validly waived)), in each case of clause (i) and (ii), the End Date may be extended to 12:00 midnight, New York City time, on May 2, 2016 at the election of either of Parent or the Company if any Restraint having any of by written notice to the effects set forth in Section 6.1(b) shall be in effect other; and shall have become final and nonappealable; provided, further, that the party seeking right to extend or terminate this Agreement pursuant to this Section 7.1(c8.1(c) shall not be available to any Party whose action or failure to fulfill any obligation under this Agreement proximately caused any of the Offer Conditions, or if the Offer Termination shall have used its reasonable best efforts occurred, the conditions set forth in Article VII, to prevent the entry fail to be satisfied and such action or failure to act constitutes a material breach of and to remove such Restraintthis Agreement;
(d) by either Parent or the Company or Parent if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) an order by a Governmental Entity of competent jurisdiction shall have concluded been issued permanently restraining, enjoining or otherwise prohibiting the consummation of the Offer (if an Offer Termination has not occurred) or either Merger and Company Stockholder Approval contemplated by this Agreement such order shall not have been obtained; become final and nonappealable provided, however, that the right to terminate this Agreement under this Section 7.1(d8.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by a Party if such order (or related such order becoming final and nonappealable) was due to the Company’s material breach by such Party of any covenant or other agreement of such Party set forth in this Agreement;
(e) by either Parent or the Company (provided that (i) the Company is not then in breach of any representation, warranty, covenant or other agreement contained herein such that any condition set forth in paragraph (E)(2) or (E)(3) of Annex A would not be satisfied (if Parent Stockholders’ Meeting an Offer Termination has not occurred) or any condition set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied (including any adjournments or postponements thereofif an Offer Termination has occurred), and (ii) shall have concluded and Parent Stockholder Approval contemplated by this Agreement the Acceptance Time shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(eoccurred) shall not be available to if: (A) (1) Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent and/or either Merger Sub TABLE OF CONTENTS shall have breached or failed to perform in any material respect any of their covenants or other agreements contained in this Agreement, or (2) (x) if an Offer Termination has not occurred, any of the representations and warranties of Parent and the Merger Subs contained in (I) Article V (other than in Section 5.9(b) (without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in such representation and warranty)) shall have become inaccurate, which breach or inaccuracy, individually or when aggregated with other breaches or inaccuracies, would reasonably be expected to have a Parent Material Adverse Effect or prevent or materially delay Parent from consummating the Offer prior to the End Date; and (II) Section 5.9(b) shall not be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date or (y) if the Offer Termination has occurred, Parent shall have breached any of its representations and warranties contained in this Agreement, which breach if occurring or continuing to occur as of the Closing Date, would result in a failure of the condition set forth in Section 7.3(a); and (B) the relevant breaches, failures to perform or inaccuracies referred to in clause (A) of this Section 8.1(e) is or are either not curable or is not cured by the earlier of (A) two (2) Business Days prior to the (x) End Date if an Offer Termination has occurred or (y) if an Offer Termination has not occurred, the Expiration Date, if all conditions set forth in Annex A would be satisfied or waived (to the extent waivable) as of such Expiration Date and (B) the date that is thirty (30) calendar days following written notice from the Company to Parent describing such breach or failure or inaccuracy in reasonable detail;
(f) by the Company, prior to the Cut-off Time, in accordance with Section 6.3(f) in order to enter into a definitive agreement providing for a Company Superior Proposal either concurrently with or immediately following such termination, provided that (i) the Company has complied with its obligations contained in (A) Section 6.3(f), and (B) the remaining provisions of Section 6.3 in all material respects and (ii) immediately prior to or concurrently with (and as a condition to) the termination of this Agreement, the Company pays to Parent the Termination Fee in the manner provided in Section 8.3(a);
(g) by Parent (provided that (i) Parent is not then in breach of any representation, warranty, covenant or other agreement contained herein and such breach results in the failure of any of, if the Offer Termination has not occurred, the Offer Conditions to be satisfied, or, if an Offer Termination has occurred, the conditions set forth in Section 7.1 or Section 7.3 to be satisfied, and (ii) the Acceptance Time shall not have occurred), if (A) the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i1) if the Offer Termination shall not have occurred, if it occurred or was continuing to occur at the Acceptance Time, would result in a failure of a condition set forth in (E)(2) or (E)(3) of Annex A, or (2) if an Offer Termination has occurred, if it occurred or was continuing to occur at the Closing Date, would result in a failure of a condition set forth in Section 6.1 7.2(a) or Section 6.2 7.2(b), and (iiB) the relevant breaches, failures to perform or inaccuracies referred to in clause (A) of this Section 8.1(g) is or are not curable or is not cured within 30 by the earlier of (x) the date that is thirty (30) days of receipt of the following written notice contemplated by from Parent to the proviso below Company describing such breach or failure in this Section 7.1(freasonable detail and (y) or cannot be cured by two (2) Business Days prior to the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;; and
(h) by Parent or the CompanyParent, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approvalthe Cut-off Time, in order to enter into a written definitive agreement for following a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityAdverse Recommendation Change.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent Modtech Stockholder Approvals and the CompanySPI Stockholder Approvals:
(a) by the mutual written consent of Parent Modtech and the CompanySPI;
(b) by either Parent Modtech or the Company SPI, if the Merger Effective Time shall not have been consummated occurred on or prior to the before six (6) month anniversary of months from the date hereof (the “End Date”), of this Agreement; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b) shall not be available to a any party if whose breach of this Agreement has been the cause of, or resulted in, the failure of the Closing Effective Time to occur by on or before such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(c) by either Parent Modtech or SPI if any court of competent jurisdiction in the United States or other United States governmental body shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the Modtech Merger or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such RestraintSPI Merger;
(d) by either Parent Modtech, (i) if SPI shall materially breach any of its representations, warranties or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded covenants hereunder and Company Stockholder Approval contemplated by this Agreement such breach shall not have been cured within ten (10) business days after receipt by SPI of written notice of such breach, (ii) if any required approval of the shareholders of SPI has not been obtained, or (iii) if the Board of Directors of SPI shall have withdrawn or modified its recommendation of the approval of this Agreement or the SPI Merger in a manner adverse to Modtech or shall have resolved to do any of the foregoing;
(e) by SPI, (i) if Modtech shall materially breach any of its representations, warranties or covenants hereunder and such breach shall not have been cured within ten (10) business days after receipt by Modtech of written notice of such breach, (ii) if any required approval of the shareholders of Modtech has not been obtained, or (iii) if the Board of Directors of Modtech shall have withdrawn or modified its recommendation of the approval of this Agreement or the Modtech Merger in a manner adverse to SPI or shall have resolved to do any of the foregoing;
(f) by Modtech, at any time prior to the Effective Time, by action of the Board of Directors of Modtech, if Modtech receives an Acquisition Proposal on terms Modtech's Board of Directors (after consultation with its independent financial advisors) determines in good faith to be more favorable to the Modtech's stockholders than the terms of the Modtech Merger, and Modtech's Board of Directors determines, upon the advice of its legal counsel, that, to continue to recommend that holders of Modtech Shares vote in favor of the Modtech Merger, notwithstanding the receipt of such offer with respect to an Acquisition Proposal, or to fail to recommend or accept the Acquisition Proposal, would not be consistent with the fiduciary duties of Modtech's Board of Directors; provided, however, that the right to terminate under this Section 7.1(d) Modtech shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention permitted to terminate this Agreement pursuant to this Section 7.1(f) unless it has provided SPI with three (3) business days' prior written notice of its intent to so terminate this Agreement, together with a detailed summary of the terms and the basis for conditions (including proposed financing, if any) of such termination;Acquisition Proposal; or
(g) by ParentSPI, at any time prior to the Effective Time, by action of the Board of Directors of SPI, if SPI receives an Acquisition Proposal on terms SPI's Board of Directors (after consultation with its independent financial advisors) determines in good faith to be more favorable to the Company shall have breached or failed to perform in any material respect any SPI's stockholders than the terms of the SPI Merger, and SPI's Board of Directors determines, upon the advice of its representationslegal counsel, warrantiesthat, covenants or other agreements contained to continue to recommend that holders of SPI Shares vote in this Agreementfavor of the SPI Merger, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of notwithstanding the receipt of such offer with respect to an Acquisition Proposal, or to fail to recommend or accept the written notice contemplated by the proviso below in this Section 7.1(g) or canAcquisition Proposal, would not be cured by consistent with the End Date, fiduciary duties of SPI's Board of Directors; provided, however, that Parent SPI shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention not be permitted to terminate this Agreement pursuant to this Section 7.1(g) unless it has provided Modtech with three (3) business days' prior written notice of its intent to so terminate this Agreement, together with a detailed summary of the terms and the basis for such termination;
conditions (hincluding proposed financing, if any) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityAcquisition Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization and Merger (Modtech Holdings Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Timeabandoned, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Stockholder Approval:
(a) by the mutual written consent of Parent the Company and Parent, by their respective boards of directors, at any time prior to the CompanyEffective Time;
(b) by either Parent or the Company if or Parent, if:
(i) the Merger shall not Offer (as it may have been consummated on or prior extended pursuant to Section 1.1) expires as a result of the non-satisfaction of any condition to the six (6) month anniversary of the date hereof (the “End Date”), Offer set forth in Annex A or is terminated or withdrawn pursuant to its terms without any Shares being purchased thereunder; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b7.1(b)(i) shall not be available to a any party if whose breach of this Agreement has been the failure cause or resulted in the non-satisfaction of the Closing to occur by such date shall be due any condition to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party Offer set forth in this AgreementAnnex A or the termination or withdrawal of the Offer pursuant to its terms without any Shares being purchased thereunder;
(cii) by either Parent any Governmental Entity shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting (i) prior to the Company if any Restraint having any of Acceptance Time, the effects set forth in Section 6.1(bacceptance for payment of, or payment for, Shares pursuant to the Offer or (ii) shall be in effect prior to the Effective Time, the Merger, and such Order or other action shall have become final and nonappealable; providednonappealable (which Order or other action the party seeking to terminate this Agreement shall have used its reasonable best efforts to resist, that resolve or lift, as applicable, subject to the provisions of Section 5.4);
(iii) the Acceptance Time shall not have occurred on or before the Outside Date and the party seeking to terminate this Agreement pursuant to this Section 7.1(c7.1(b)(iii) shall not have used breached in any material respect its reasonable best efforts obligations under this Agreement in any manner that shall have proximately caused the failure to prevent consummate the entry of and to remove such RestraintMerger on or before the Outside Date;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(fc) by the Company:
(i) if Parent or the Purchaser fails to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as provided in Section 1.1 hereof within seven (7) Business Days after the date hereof;
(ii) at any time prior to the Acceptance Time, if Parent or the Purchaser shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform cannot be cured by the Outside Date, provided that the Company shall have given Parent and the Purchaser written notice, delivered at least thirty (30) days prior to such termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(c)(ii) and the basis for such termination; or
(iii) at any material time following the 30th Business Day after having commenced the Offer (within the meaning of Rule 14d-2 under the Exchange Act) as provided in Section 1.1 hereof and prior to the Acceptance Time, in order to enter into a transaction that is a Superior Proposal, if, prior to the Acceptance Time, (A) the Board of Directors determines that it has received a Superior Proposal, (B) the Company has notified Parent in writing of its intention to terminate this Agreement pursuant to this Section 7.1(c)(iii), and included with such notice the identity of the Person making such proposal, the most current written agreements relating to the transaction that constitutes such Superior Proposal and all related transaction agreements, (C) at least five (5) Business Days following receipt by Parent of the notice referred to in clause (B) above, and taking into account any revised proposal committed to by Parent since receipt of the notice referred to in clause (B) above, the Board of Directors shall have determined in good faith, after consultation with outside counsel and the Company’s financial advisor, that such Superior Proposal continues to be more favorable to the stockholders of the Company from a financial point of view than the revised proposal committed to by Parent, if any, (D) prior to or concurrently with such termination, the Company pays the fee due under Section 7.2, and (E) concurrently with or immediately following the termination of this Agreement pursuant to this Section 7.1(c)(iii), the Company enters into a binding definitive transaction agreement with respect to such Superior Proposal;
(d) by Parent, if:
(i) at any time prior to the Acceptance Time, the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 paragraphs (c)(iii) or Section 6.2 (iv) of Annex A to be satisfied and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Outside Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, provided that Parent shall have given the Company written notice, delivered at least 30 thirty (30) days prior to such termination (but no later than the expected Closing Date)termination, stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g7.1(d)(i) and the basis for such termination;
(hii) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approvalthe Acceptance Time, the Board of Directors or any committee thereof (A) effects a Change of Recommendation, (B) fails to include in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, Proxy Statement or the Schedule 14D-9 the Recommendation or (C) publicly approves or recommends any Alternative Proposal (it being agreed that any such purported termination the taking by the Company or any of its Representatives of any of the actions permitted by Section 5.2(c) shall not give rise to a right to terminate pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2clause (ii));
(jiii) by Parent, at any time prior to obtaining Parent Stockholder Approvalthe Acceptance Time, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company gives Parent Termination Fee in accordance with the notification contemplated by Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation7.1(c)(iii); or
(liv) by at any time prior to the CompanyAcceptance Time, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there any proceeding shall be no other liability on the part of Parent commenced or any petition shall be filed seeking relief with respect to the Company to the other except or any Significant Subsidiary under such provisionsany bankruptcy, insolvency or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for similar Law, which, in the Confidentiality Agreementcase of any involuntary proceeding, in which case the aggrieved party shall be entitled to all rights and remedies available at law not have been vacated, discharged or in equity.dismissed within sixty
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained -------------------------------------- in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyXxxxxx Xxxxxxxx:
(a) by the mutual written consent of Parent Xxxxxx Xxxxxxxx and the CompanyFalcon;
(b) (i) by either Parent Xxxxxx Xxxxxxxx or the Company Falcon if the Merger Shares shall not have been consummated purchased pursuant to the Offer on or prior before July 15, 1999 and (ii) by Xxxxxx Xxxxxxxx if after 90 days following the commencement of the Offer, the conditions to the six (6) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) Offer have not been satisfied or waived and Sub shall not be available have elected to a party if extend the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealableOffer; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c8.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to purchase Shares pursuant to the Offer on or before such date;
(c) by either Xxxxxx Xxxxxxxx or Falcon if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the purchase of Shares pursuant to the Offer or the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the purchase of Shares pursuant to the Offer or consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non- appealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 8.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or Xxxxxx Xxxxxxxx prior to the Company purchase of Shares pursuant to the Offer if the Company Stockholders’ Meeting Board of Directors of Xxxxxx Xxxxxxxx determines in good faith (including any adjournments based upon advice of its independent financial advisor and outside counsel, as appropriate) that (i) a Takeover Proposal constitutes a Superior Proposal and (ii) the failure to accept such Superior Proposal will violate its obligations or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by duties to Xxxxxx Xxxxxxxx or its stockholders under applicable law, provided, that this Agreement shall not have been obtained; provided, however, that the right terminate pursuant to terminate under this Section 7.1(d8.1(d) shall not be available unless (A) Xxxxxx Xxxxxxxx has provided Falcon with two business days' prior written notice of its intention to accept such Superior Proposal, together with a detailed description of the Company where terms and conditions of such Superior Proposal and (B) simultaneously with such termination Xxxxxx Xxxxxxxx enters into a definitive acquisition, merger or similar agreement to effect such Superior Proposal and pays the failure Termination Fee (as defined in Section 8.2(b)) required pursuant to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this AgreementSection 8.2(b);
(e) by either Parent Xxxxxx Xxxxxxxx or Falcon prior to the Company purchase of any Shares pursuant to the Offer if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) the other shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; providedbreached, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform comply with, in any material respect any of its representationsobligations under this Agreement or any representation or warranty made by such other party shall have been untrue when made or as of the time of such termination as if made on and as of such time (except for representations and warranties made as of a specified date, warrantieswhich need be true only as of the specified date), covenants provided such breach, failure or misrepresentation is not cured prior to the earlier of ten (10) days after notice thereof from the other agreements contained party or two (2) business days prior to the date upon which the Offer expires, and with respect to any covenant or agreement or any representation or warranty not qualified by "Material Adverse Effect," such breaches, failures or misrepresentations, individually or in the aggregate, results or is reasonably likely to result in a Material Adverse Effect on Xxxxxx Xxxxxxxx or Falcon, as the case may be;
(f) by Falcon (i) if the Board of Directors of Xxxxxx Xxxxxxxx or any committee of the Board of Directors of Xxxxxx Xxxxxxxx (A) shall withdraw, modify or change in any adverse manner (including by amendment of the Schedule 14D-9) to Falcon or Sub, or fail to reconfirm upon the request of Falcon, its approval or recommendation of this Agreement, which breach the Offer or failure the Merger, (B) shall approve or recommend any Takeover Proposal, in each case, other than by Falcon or an affiliate of Falcon, or (C) shall resolve to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt take any of the written notice contemplated by the proviso below actions specified in this Section 7.1(fclauses (A) or cannot be cured (B) above;
(g) by Xxxxxx Xxxxxxxx if Sub fails to commence the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days Offer on or prior to such termination (but no later than five business days following the expected Closing Date)date of initial public announcement of the Offer, stating the Company’s intention to provided that Xxxxxx Xxxxxxxx may not terminate this Agreement pursuant to this Section 7.1(f8.1(g) and the basis for if Xxxxxx Xxxxxxxx is at such termination;
(g) by Parent, if the Company shall have breached or failed to perform time in breach in any material respect any of its representations, warranties, covenants or other agreements contained in obligations under this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;; or
(h) by Parent either of Xxxxxx Xxxxxxxx or Falcon if the Offer shall have been terminated, or the Company, in the event the other party or Offer has expired without any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d)Shares being purchased therein; provided, howeverhowever that the right to terminate this Agreement under this Section 8.1(h) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the termination of the Offer or the failure of Falcon or Sub, as the case may be, to purchase Shares pursuant to the Offer on or prior to such date; and provided, further, that any such purported no termination by the Company Xxxxxx Xxxxxxxx shall be effective pursuant to this Section 7.1(i8.1(d) shall be void and of no force or effect unless Parent pays to Parent the Company under circumstances in which a Termination Fee would be payable by Xxxxxx Xxxxxxxx under Section 8.2 unless concurrently with such termination, such Termination Fee is paid in full by Xxxxxx Xxxxxxxx in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, Section 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after only as follows, and subject to any approval required authorizations of the matters presented in connection with Company Board of Directors or the board of directors of Merger Sub to the extent required by the stockholders DGCL (and in the case of the Company Board of Directors, acting upon the recommendation of the Special Committee), as applicable (and notwithstanding the adoption of this Agreement by Parent and as the Company:sole stockholder of Merger Sub):
(a) by the mutual written consent of Parent the Company (upon approval of the Special Committee) and the CompanyParent;
(b) by either Parent or the Company (upon approval of the Special Committee) or Parent, if the Merger Requisite Company Stockholder Approvals shall not have been consummated obtained upon a vote taken thereon at the Company Stockholder Meeting or at any adjournment or postponement thereof;
(c) by either the Company (upon approval of the Special Committee) or Parent if the Closing shall not have occurred on or prior to the six 12:01 a.m., Chicago time, on September 20, 2024 (6) month anniversary of the date hereof (such date, the “End Date”), whether such date is before or after the date of the receipt of Requisite Company Stockholder Approvals; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b7.1(c) shall may not be available exercised by any party whose failure to a party if perform any covenant or obligation under this Agreement has been the principal cause of, or resulted in, the failure of the Closing to occur by such date shall be due to have occurred on or before the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such RestraintEnd Date;
(d) by either Parent or the Company (upon approval of the Special Committee) or Parent if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) an Order by a Governmental Entity of competent jurisdiction shall have concluded been issued permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and Company Stockholder Approval contemplated by this Agreement such Order shall not have been obtainedbecome final and nonappealable; provided, however, that the right to terminate this Agreement under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by a Party if such Order (or related such Order becoming final and nonappealable) was due to the Company’s material breach of such Party of any representation, warranty, covenant or agreement of such Party set forth in this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereofupon approval of the Special Committee) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; (provided, however, that the right Company is not then in breach of any representation, warranty, covenant or other agreement contained herein such that any condition set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied), if: (A) Parent or Merger Sub shall have breached or failed to terminate under perform any of their representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform, if it occurred or was continuing to occur at the Effective Time, would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b); and (B) the relevant breach, failure to perform or inaccuracy referred to in clause (A) of this Section 7.1(e) shall either is not be available curable or is not cured by the earlier of (x) the End Date and (y) the date that is thirty (30) calendar days following written notice from the Company to Parent where the describing such breach, failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementinaccuracy in reasonable detail;
(f) by the CompanyCompany (upon approval of the Special Committee), prior to obtaining the Requisite Company Stockholder Approvals, in accordance with Section 5.5(e) in order to enter into a definitive agreement providing for a Company Superior Proposal (after compliance in all material respects with the terms of Section 5.5) either concurrently with or immediately following such termination; provided, that immediately prior to or concurrently with (and as a condition to) the termination of this Agreement, the Company pays to Parent the Company Termination Fee in the manner provided in Section 7.3(a)(i);
(g) by Parent (provided, that Parent is not then in breach of any representation, warranty, covenant or other agreement contained herein such that any condition set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied), if Parent (A) the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) perform, if it occurred or was continuing to occur at the Effective Time, would result in a failure of a condition set forth in Section 6.1 6.2(a) or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date6.2(b), stating (B) the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parentrelevant breach, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform or inaccuracy referred to in clause (iA) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) either is not curable or canis not be cured by the earlier of (x) the End Date, provided, Date and (y) the date that is thirty (30) calendar days following written notice from Parent shall have given to the Company written noticedescribing such breach, delivered at least 30 days prior failure or inaccuracy in reasonable detail, and (C) the relevant breach, failure to such termination perform or inaccuracy referred to in clause (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to A) of this Section 7.1(g) and is not an inaccuracy in any representation or warranty of the basis for such terminationCompany set forth in Article III that the Company can reasonably demonstrate the individuals listed on Section 8.20(a)(xlv) of the Parent Disclosure Letter had actual knowledge of, without any obligation to have undertaken due inquiry, prior to the date of this Agreement;
(h) by Parent or if, prior to obtaining the CompanyRequisite Company Stockholder Approvals, a Company Adverse Recommendation Change shall have occurred; provided, that the Company pays to Parent the Company Termination Fee in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached manner provided in any material respect any of their respective obligations under Section 5.3;7.3(a)(ii); and
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offerthe Effective Time, if (i) all of the conditions set forth in Section 6.1 and Section 6.2 have been (and remain) satisfied or, to the extent permissible, waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, provided, that each such condition is then capable of being satisfied if the Closing were to occur at such time and will be satisfied at the Closing), (ii) Parent and Merger Sub shall have failed to consummate the Transaction by the date on which the Closing should have occurred pursuant to Section 1.2, (iii) the Company has complied with its obligations under provided to Parent and Merger Sub irrevocable written notice stating that (A) all of the closing conditions set forth in Section 5.3(d); 6.1 and Section 6.3 have been satisfied or, to the extent permissible, waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, provided, however, that any each such purported termination by condition is then capable of being satisfied if the Closing were to occur at such time and will be satisfied at the Closing) and (B) the Company is ready, willing and able to consummate, and will consummate, the Closing as of such date and prior to such termination and (C) the Company intends to terminate this Agreement pursuant to this Section 7.1(i) shall be void and of no force or effect unless (iv) Parent pays and Merger Sub fail to Parent consummate the Company Termination Fee in accordance with Section 7.2;
Closing within five (j5) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d)Business Days following such irrevocable notice; provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j(x) shall be void and of no force or effect unless Parent pays the conditions to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part obligations of Parent or the Company to the other except under and Merger Sub set forth in Section 6.1 and Section 6.2 must remain continuously satisfied throughout such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party five (5) Business Day period and (y) Parent shall not be entitled to all rights and remedies available at law or in equityterminate this Agreement during such five (5) Business Day period.
Appears in 1 contract
Samples: Merger Agreement (Keypath Education International, Inc.)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and the Offers and the Mergers may be abandoned at any time prior to the first to occur of the Acceptance Time or the First Effective TimeTime (if applicable, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Stockholder Approval shall have been obtained (unless otherwise provided below)), only as follows:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) (i) by either Parent or the Company or Parent, if the Merger Offer shall not have been consummated on terminated or prior expired in accordance with its terms (subject to the six (6rights and obligations of Parent and Purchaser to extend the Offer pursuant to Section 1.1(c)(ii)) month anniversary without Purchaser having accepted for payment any shares of Company Common Stock pursuant to the date hereof (the “End Date”), Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b8.1(b) shall not be available (A) to any Party whose action or failure to fulfill any obligations under this Agreement proximately causes (1) any of the Offer Conditions to fail to be satisfied or (2) the expiration or termination of the Offer in accordance with the terms of this Agreement and the Offer without Purchaser having accepted for payment any shares of Company Common Stock; (B) to either the Company or Parent if a party Meeting Election shall have been made; or (C) to the Company, at any time, if less than ninety-five percent (95%) of the shares of Company Common Stock subject to any Voting and Support Agreement shall have been tendered into the Offer and have not been withdrawn, or (ii) by either the Company or Parent if the failure of Company Stockholder Approval shall not have been obtained at the Closing to occur Company Stockholder Meeting duly convened and held or any adjournment or postponement thereof permitted by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either the Company or Parent prior to the Acceptance Time, or if an Offer Termination has occurred, prior to the Closing, if the Closing shall not have occurred on or prior to 12:00 midnight, New York City time, on February 4, 2016 (the “End Date”); provided, however, that if (i) all of the Offer Conditions, other than the conditions set forth in paragraph (A) of Annex A, shall have been satisfied or waived (other than the Minimum Condition and the delivery of the certificates and opinions referenced in paragraph (E)(4), (E)(5) and (E)(6) of Annex A, which certificates and opinions only need to be capable of being delivered), and the Offer shall not have been terminated theretofore, or, (ii) if the Offer Termination shall have occurred, if all of the conditions set forth in Article VII, other than the condition set forth in Section 7.1(a)(ii) shall have been satisfied or waived (and other than the delivery of certificates and opinions referenced in Section 7.2(c), Section 7.2(d), Section 7.3(c) and Section 7.3(d), which certificates and opinions need only be capable of being delivered (or such delivery has been validly waived)), in each case of clause (i) and (ii), the End Date may be extended to 12:00 midnight, New York City time, on May 2, 2016 at the election of either of Parent or the Company if any Restraint having any of by written notice to the effects set forth in Section 6.1(b) shall be in effect other; and shall have become final and nonappealable; provided, further, that the party seeking right to extend or terminate this Agreement pursuant to this Section 7.1(c8.1(c) shall not be available to any Party whose action or failure to fulfill any obligation under this Agreement proximately caused any of the Offer Conditions, or if the Offer Termination shall have used its reasonable best efforts occurred, the conditions set forth in Article VII, to prevent the entry fail to be satisfied and such action or failure to act constitutes a material breach of and to remove such Restraintthis Agreement;
(d) by either Parent or the Company or Parent if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) an order by a Governmental Entity of competent jurisdiction shall have concluded been issued permanently restraining, enjoining or otherwise prohibiting the consummation of the Offer (if an Offer Termination has not occurred) or either Merger and Company Stockholder Approval contemplated by this Agreement such order shall not have been obtained; become final and nonappealable provided, however, that the right to terminate this Agreement under this Section 7.1(d8.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by a Party if such order (or related such order becoming final and nonappealable) was due to the Company’s material breach by such Party of any covenant or other agreement of such Party set forth in this Agreement;
(e) by either Parent or the Company (provided that (i) the Company is not then in breach of any representation, warranty, covenant or other agreement contained herein such that any condition set forth in paragraph (E)(2) or (E)(3) of Annex A would not be satisfied (if Parent Stockholders’ Meeting an Offer Termination has not occurred) or any condition set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied (including any adjournments or postponements thereofif an Offer Termination has occurred), and (ii) shall have concluded and Parent Stockholder Approval contemplated by this Agreement the Acceptance Time shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(eoccurred) shall not be available to if: (A) (1) Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent and/or either Merger Sub shall have breached or failed to perform in any material respect any of their covenants or other agreements contained in this Agreement, or (2) (x) if an Offer Termination has not occurred, any of the representations and warranties of Parent and the Merger Subs contained in (I) Article V (other than in Section 5.9(b) (without regard to “materiality,” Material Adverse Effect and similar qualifiers contained in such representation and warranty)) shall have become inaccurate, which breach or inaccuracy, individually or when aggregated with other breaches or inaccuracies, would reasonably be expected to have a Parent Material Adverse Effect or prevent or materially delay Parent from consummating the Offer prior to the End Date; and (II) Section 5.9(b) shall not be true and correct in all respects at and as of the date of this Agreement and at and as of the Closing Date as though made at and as of the Closing Date or (y) if the Offer Termination has occurred, Parent shall have breached any of its representations and warranties contained in this Agreement, which breach if occurring or continuing to occur as of the Closing Date, would result in a failure of the condition set forth in Section 7.3(a); and (B) the relevant breaches, failures to perform or inaccuracies referred to in clause (A) of this Section 8.1(e) is or are either not curable or is not cured by the earlier of (A) two (2) Business Days prior to the (x) End Date if an Offer Termination has occurred or (y) if an Offer Termination has not occurred, the Expiration Date, if all conditions set forth in Annex A would be satisfied or waived (to the extent waivable) as of such Expiration Date and (B) the date that is thirty (30) calendar days following written notice from the Company to Parent describing such breach or failure or inaccuracy in reasonable detail;
(f) by the Company, prior to the Cut-off Time, in accordance with Section 6.3(f) in order to enter into a definitive agreement providing for a Company Superior Proposal either concurrently with or immediately following such termination, provided that (i) the Company has complied with its obligations contained in (A) Section 6.3(f), and (B) the remaining provisions of Section 6.3 in all material respects and (ii) immediately prior to or concurrently with (and as a condition to) the termination of this Agreement, the Company pays to Parent the Termination Fee in the manner provided in Section 8.3(a);
(g) by Parent (provided that (i) Parent is not then in breach of any representation, warranty, covenant or other agreement contained herein and such breach results in the failure of any of, if the Offer Termination has not occurred, the Offer Conditions to be satisfied, or, if an Offer Termination has occurred, the conditions set forth in Section 7.1 or Section 7.3 to be satisfied, and (ii) the Acceptance Time shall not have occurred), if (A) the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i1) if the Offer Termination shall not have occurred, if it occurred or was continuing to occur at the Acceptance Time, would result in a failure of a condition set forth in (E)(2) or (E)(3) of Annex A, or (2) if an Offer Termination has occurred, if it occurred or was continuing to occur at the Closing Date, would result in a failure of a condition set forth in Section 6.1 7.2(a) or Section 6.2 7.2(b), and (iiB) the relevant breaches, failures to perform or inaccuracies referred to in clause (A) of this Section 8.1(g) is or are not curable or is not cured within 30 by the earlier of (x) the date that is thirty (30) days of receipt of the following written notice contemplated by from Parent to the proviso below Company describing such breach or failure in this Section 7.1(freasonable detail and (y) or cannot be cured by two (2) Business Days prior to the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;; and
(h) by Parent or the CompanyParent, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approvalthe Cut-off Time, in order to enter into a written definitive agreement for following a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityAdverse Recommendation Change.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Synageva Biopharma Corp)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval receipt of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Shareholder Approval:
(a) by the mutual written consent of Parent the Company and the CompanyPurchaser;
(b) by either Parent the Company or the Company Purchaser by notice to the other, if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before September 28, 2008 (the “End Date”), provided, however, that ) and (ii) the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party Party seeking to terminate this Agreement pursuant to this Section 7.1(c8.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately caused the failure of the Effective Date to occur on or before such date;
(c) by either the Company or the Purchaser by notice to the other, if a Restraint shall have been entered permanently preventing, enjoining or otherwise prohibiting the consummation of the Merger and such Restraint shall have become final and non-appealable; provided that, the Party seeking to terminate this Agreement pursuant to this Section 8.1(c) (i) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint, and (ii) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately caused such injunction to be issued;
(d) by either Parent the Company or the Company Purchaser by notice to the other, if the Company StockholdersShareholders’ Meeting (including any adjournments or postponements thereof) shall have been convened and concluded and the Company Stockholder Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that notice to the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the CompanyPurchaser, if Parent (i) the Purchaser shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform perform, (iA) would result in a failure of a condition set forth in Section 6.1 7.1 or Section 6.2 7.3 and (iiB) is not capable of being cured by the End Date or, if capable of being cured, is not cured within 30 thirty (30) days of following receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that from the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f8.1(e) or (ii) the conditions to closing set forth in Section 7.1 and Section 7.2 have been satisfied and the basis for Purchaser has failed to consummate the Merger within ten (10) Business Days (or such terminationlonger period specified by the Company in a notice to the Purchaser scheduling the Closing) after the later of (A) the first day that the conditions set forth in Section 7.1 and Section 7.2 have been satisfied and (B) the date on which the Company provides such notice to the Purchaser irrevocably undertaking to close the Merger in accordance with this Agreement on the date specified in such notice;
(gf) by Parentthe Purchaser by notice to the Company, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 7.1 or Section 6.3 7.2 and (ii) is not cured within 30 days capable of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be being cured by the End DateDate or, providedif capable of being cured, that Parent shall have given is not cured within thirty (30) days following receipt of notice from the Company written notice, delivered at least 30 days prior to such termination (but no later than Purchaser stating the expected Closing Date), stating ParentPurchaser’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination8.1(f);
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(ig) by the CompanyCompany by notice to the Purchaser, at any time prior to obtaining the receipt of the Company Stockholder Shareholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the board of directors of the Company has complied approved or recommended a Superior Proposal in accordance with its obligations under Section 5.3(d6.5(d); providedprovided that, however, that any such purported termination by the Company pursuant to this Section 7.1(i8.1(g) shall be void conditioned on and subject to the payment of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation8.2(a)(i); or
(lh) by the Purchaser by notice to the Company, if there has been the Board of Directors shall have (i) made or resolved to make a Parent Change of Recommendation, (ii) failed to recommend against a tender or exchange offer constituting an Acquisition Proposal in any publicly disclosed position taken pursuant to Rules 14d-9 and 14e-2 under the Exchange Act, except to the extent permitted pursuant to Section 6.5(e), (iii) recommended to the shareholders of the Company or approved any Acquisition Proposal or (iv) failed to include the Recommendation in any materials sent to the shareholders of the Company in connection with the Company Shareholders’ Meeting. In the event of termination of this Agreement pursuant to this Section 7.18.1, this Agreement shall terminate and be of no further force or effect (except for the Confidentiality Agreement, the provisions of Sections 7.2, 8.2, 8.4, 8.5 Section 8.2 and 8.6Article IX), and there shall be no other liability on the part of Parent the Company or the Company Purchaser and the Merger Sub to the other except under such provisionsother; provided that, or for nothing herein shall relieve any Party from liability arising out of fraud or intentional or material breach of prior to the date on which this Agreement or as provided for in the Confidentiality Agreementis terminated, in which case the aggrieved party shall Party shall, subject to the terms of this Agreement, be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before August 30, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1998; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either the Company or Parent if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this clause 7.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintorder, decree, ruling or injunction;
(d) by either Parent or the Company or Parent if the approval of the stockholders of the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain the required vote at the Company Stockholder Approval shall have been caused by Meeting or related to the Company’s material breach of this Agreementany postponement or adjournment thereof;
(e) by either Parent or if the Board of Directors of the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and (i) withdrawn, modified or amended in any respect adverse to Parent Stockholder Approval contemplated by its approval or recommendation of this Agreement shall not have been obtained; providedor any of the transactions contemplated herein, however, that (ii) failed to include in the right Proxy Statement when mailed the recommendation of the Board of Directors of the Company or (iii) recommended to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to its stockholders any Acquisition Proposal of a Person other than Parent’s material breach of this Agreement;
(f) by the Company (i) if the Board of Directors of the Company determines to accept an Acquisition Proposal that such Board has determined in good faith, after consultation with its outside legal counsel and financial advisor, to be more favorable to its stockholders than the transactions contemplated hereby, (ii) if the Board of Directors of the Company takes any action set forth in subsection (e) of this Section 7.1; or (iii) upon notice to Parent, authorized by the Board of Directors of the Company, if at any time during the period between the date hereof and the two days prior to the Effective Time, the average of the Parent Common Stock closing prices, regular way, on the NYSE for any fifteen (15) consecutive trading day period is less than or equal to $49.85 (the "Floor Price") and, in the event the Custom Index at the time of any such calculation declines from the date hereof, the amount by which the percentage decrease in the average of the Parent Common Stock from $62.3125 exceeds the percentage decrease, if any, in the Custom Index from $36.0375 is greater than or equal to 20 percentage points; provided, however, that no right of termination shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in arise under this Agreement, which breach or failure to perform Section 7.1(f)(iii) if (ix) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured Parent elects within 30 5 business days of receipt of such notice to increase the written number of shares of Parent Common Stock included in the Merger Consideration such that the per share value of the Parent Common Stock consideration (valued at the Floor Price) is at least equal to the per share consideration that would have been received if the Conversion Number had been equal to a number such that the per share value of the Company Common Stock is equal to $41.50, (y) the issuance of the additional shares of stock does not necessitate a vote of the shareholders of the Parent to approve such issuance and (z) in the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., the transaction as adjusted qualifies as a tax-free "reorganization" within the meaning of Section 368 of the Code; provided, further, however, that no right of termination shall arise under Section 7.1(f)(iii) if, prior to the delivery of notice contemplated by the proviso below Company to Parent provided for in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date7.1(f)(iii), stating the Company’s intention average of closing prices for a subsequent fifteen (15) consecutive trading day period is not less than or equal to the Floor Price or for the same period the amount by which the percentage decrease in the average prices of the Parent Common Stock exceeds the percentage decrease in the Custom Index is not greater than or equal to 20 percentage points. The party desiring to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company 7.1 shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the give written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to of such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityparty.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Shareholder Approval:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent, if (i) the Merger Closing Date shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before February 28, 1999 (the “End "Termination Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b") shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(cii) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have contributed to the failure to consummate the Merger on or before such date;
(c) by either the Company or Parent, if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) (A) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable and (B) the party seeking to terminate this Agreement pursuant to this clause 7.1(c)(ii) shall have used its all reasonable best efforts to prevent the entry of and to remove such Restraintorder, decree, ruling or injunction;
(d) by either Parent or the Company or Parent, if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote at a duly held meeting of shareholders or related to the Company’s material breach of this Agreementany adjournment, postponement or continuation thereof;
(e) by either Parent or the Company if Parent Stockholders’ Meeting pursuant to Section 5.7(b), except that the Company may not terminate this Agreement pursuant to this clause 7.1(e) unless and until (including any adjournments or postponements thereofi) the Company shall have concluded complied with its obligations under Section 5.7, and Parent Stockholder Approval contemplated by this Agreement (ii) the Company shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available simultaneously pay to Parent where the failure Parent Termination Fee (as defined below) and, to obtain the extent required by Section 7.2, the Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this AgreementExpense Amount (as defined below);
(f) by Parent, if the Company Board shall have approved or recommended any Takeover Proposal;
(g) by the Company, if any person or group (other than any party hereto or any of its Subsidiaries or affiliates) acquires prior to the Effective Time, or if prior to the Effective Time, Parent enters into an agreement pursuant to which any person or group is to acquire, more than 50% of the issued and outstanding voting securities of Parent; or
(h) by either the Company or Parent, if there shall have breached or failed to perform in any been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the conditions set forth in Section 6.1 Sections 6.2(a) or Section 6.2 6.3(a), as the case may be, not to be satisfied, and (ii) is such breach shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2this Section 7.1, 8.2, 8.4, 8.5 Section 7.2 and 8.6), Article VIII) and there shall be no other liability hereunder on the part of Parent Parent, Merger Sub or the Company to the other Company, except under such provisions, or for liability arising out of fraud or intentional or material any willful breach of this Agreement occurring prior to the date on which this Agreement is terminated or as provided for in the Confidentiality Agreement. In addition, in which case the aggrieved party Confidentiality Agreement shall survive the termination hereof, provided that upon termination of this Agreement for any reason, the Confidentiality Agreement shall be entitled amended, without any further action on the part of any party thereto, to all rights delete Section 17 thereof in its entirety; and remedies available at law from and after such termination, neither Parent nor any of its controlled affiliates (as defined therein) shall acquire any Company Common Shares prior to May 7, 1999; provided, however, that nothing contained herein shall prohibit Parent or in equityany of its controlled affiliates from commencing a tender offer or exchange offer for Company Common Shares pursuant to Section 14(d) of the Exchange Act prior to such time so long as no Company Common Shares are acquired prior to such time.
Appears in 1 contract
Samples: Merger Agreement (Betzdearborn Inc)
Termination or Abandonment. Notwithstanding anything in this This Agreement to and the contrary, this Agreement transactions contemplated herein may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyDate:
(a) by the mutual written consent of Parent CORE, Purchaser, Founder and the CompanySellers;
(b) by CORE if (i) any of the representations or warranties of Sellers or Founder contained herein shall have been untrue or incorrect in any material respect on the date hereof or (ii) any Seller or Founder shall be in material breach of any of its covenants, agreements or obligations hereunder and such breach shall continue uncured until the earlier of (x) the scheduled Closing Date, or (y) the third day following the receipt by the breaching party of notice thereof;
c) by Founder or Sellers if (i) any of the representations or warranties of CORE or Purchaser contained herein shall have been untrue or incorrect in any material respect on the date hereof or (ii) CORE or Purchaser shall be in material breach of any of its covenants, agreements or obligations hereunder and such breach shall continue uncured until the earlier of (x) the scheduled Closing Date, or (y) the third day following the receipt by the breaching party of notice thereof;
d) by either Parent Founder, any Seller, Purchaser or CORE if, without fault of such terminating party, the Company Closing has not become effective by September 30, 1997, or such other date, if any, as Founder and CORE shall agree in writing upon;
e) by CORE pursuant to Section 1.7 hereof or if the Merger shall conditions set forth in Section 9.18 (Due Diligence) have not have been consummated satisfied on or prior to the six (6Closing Date;
f) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party by CORE if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party conditions set forth in this AgreementArticle IX hereof have not been satisfied on or prior to the Closing Date;
(cg) by either Parent Founder or any Seller if the Company if any Restraint having any of the effects conditions set forth in Section 6.1(b) shall be in effect and shall Article VIII hereof have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent not been satisfied on or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available prior to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Samples: Asset Purchase Agreement (Core Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective TimeClosing Date, whether before or after any approval of the matters presented in connection with the Merger Recapitalization by the stockholders shareholders of Parent and the CompanyKaty:
(a) by the mutual written consent of Parent Katy and the CompanyPurchaser;
(b) by either Parent Katy or the Company Purchaser if the Merger Closing Date shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before June 30, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2001; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall not have breached -------------- in any material respect its obligations under this Agreement in any manner that shall have substantially contributed to the failure to consummate the Recapitalization on or before such date;
(c) by either Katy or Purchaser if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Recapitalization substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Recapitalization substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided that the party seeking to terminate this Agreement pursuant to this clause (ii) of Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to -------------- remove such Restraintorder, decree, ruling or injunction;
(d) by either Parent or the Company Purchaser if the Company Stockholders’ Meeting (including any adjournments Purchaser Closing Conditions are not satisfied on or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available prior to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this AgreementClosing Date;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement[reserved];
(f) by the CompanyKaty, if Parent Purchaser shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 6.2(a) or Section 6.2 -------------- (b), and (ii) is incapable of being cured by Purchaser or is not cured within 30 --- days of receipt notice of the written notice contemplated by the proviso below in this Section 7.1(f) such breach or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationfailure;
(g) by ParentPurchaser, if the Company Katy shall have breached or failed to perform perform, or shall have failed to cause any Subsidiary to perform, in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 or Section 6.3 6.3(a), and (ii) is incapable of -------------- being cured by Katy or is not cured within 30 days of receipt notice of such breach or failure;
(h) by Katy, if at any time prior to the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Closing Date, provided, a Superior Proposal is received by Katy and Katy's Board of Directors determines in good faith (after consultation with outside legal counsel) that Parent shall have given failure to terminate this Agreement and enter into an agreement to effect the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to Superior Proposal would be inconsistent with its fiduciary duties under applicable law; provided that Xxxx xxx not terminate this Agreement pursuant to this Section 7.1(g7.1(h) unless and -------------- until (i) three (3) Business Days have elapsed following delivery to Purchaser of a written notice of such good faith determination by Katy's Board of Directors and during such three (3) Business Day period Katy has fully cooperated with Purchaser, including without limitation, informing Purchaser of the terms and conditions of such Superior Proposal, and the basis for identity of the person making such Superior Proposal, with the intent of enabling both parties to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected; (ii) at the end of such three (3) Business Day period the Katy Takeover Proposal continues to constitute a Superior Proposal and Katy's Board of Directors confirms its good faith determination (after consultation with outside legal counsel) that failure to terminate this Agreement and enter into an agreement to effect the Superior Proposal would be inconsistent with its fiduciary duties under applicable law; and (iii) (A) at or prior to such termination;, Purchaser has received payment of any amounts required by Section 7.2 to be paid at or prior to termination, but ----------- only if and when such amounts are payable under Section 7.2, by wire transfer in ----------- same day funds, and (B) as soon as practicable following such termination Katy enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal.
(hi) by Parent or the CompanyExcept as provided in Sections 7.2 and 8.2 hereof, in the event ------------ --- of the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement ----------- shall terminate (except for the provisions of Sections 7.2forthwith become void, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent Purchaser or the Company Katy or any of their respective officers or directors to the other and all rights and obligations of any party hereto shall cease, except under such provisions, that nothing herein shall relieve any party from liability for any misrepresentation or for liability arising out of fraud or intentional or material breach of any covenant or agreement under this Agreement or as provided for from the confidentiality obligations in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.Section 5.2 hereof. -----------
Appears in 1 contract
Samples: Preferred Stock Purchase and Recapitalization Agreement (Katy Industries Inc)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the ASARCO Merger by the stockholders shareholders of Parent and the CompanyASARCO:
(a) by the mutual written consent of Parent ASARCO and the CompanyParent;
(b) by either Parent ASARCO or Parent, if (i) the Tender Offer shall have expired without any shares of ASARCO Common Stock being purchased pursuant thereto or (ii) the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the Company if the Merger shall Tender Offer has not have been consummated on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before February 29, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2000; providedPROVIDED, that the party seeking to terminate this Agreement pursuant to this clause 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure of shares of ASARCO Common Stock to have been purchased on or before such date;
(c) by Parent, if, prior to the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the purchase of any shares of ASARCO Common Stock pursuant to the Tender Offer, ASARCO shall have breached Section 7.1(c5.7;
(d) by ASARCO, in accordance with Section 5.7(b), prior to the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the acceptance for purchase of any shares of ASARCO Common Stock pursuant to the Tender Offer, PROVIDED that ASARCO shall have complied with all provisions of Sections 5.7(b); and PROVIDED FURTHER that any such termination will not be effective unless the Termination Fee pursuant to Section 7.4 shall have been paid contemporaneously with such termination.
(e) by Parent, if (i) prior to the ASARCO Merger (in the event the ASARCO Shareholders Meeting occurs prior to the expiration or termination of the Tender Offer) or the purchase of any shares of ASARCO Common Stock pursuant to the Tender Offer, the ASARCO Board of Directors or any committee thereof shall have amended, withdrawn or modified (or publicly disclosed its intention to do so) in a manner adverse to Parent its approval or recommendation of the Tender Offer or this Agreement (it being understood that ASARCO taking no position or remaining neutral with respect to a tender or exchange offer from a third party (a "Neutral Statement"), or making a recommendation in favor of an ASARCO Takeover Proposal, in a filing made pursuant to Rules l4d-9 and 14e-2(a) promulgated under the Exchange Act shall constitute an adverse modification of its approval or recommendation of the Tender Offer or ASARCO Merger, unless, in the case of a Neutral Statement only, contemporaneously with the filing of such Neutral Statement ASARCO publicly confirms that it continues to recommend approval of the ASARCO Merger and continues to actively support the ASARCO Merger thereafter), or (ii) any condition to the Tender Offer described in Annex A hereto shall not have been satisfied on or prior to the earlier of 30 days of notice that such condition has not been satisfied and February 29, 2000;
(f) by ASARCO, if all of the conditions to the Tender Offer have been satisfied and Parent or the Purchaser shall have terminated the Tender Offer without purchasing any Shares thereunder; PROVIDED, that ASARCO shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure of shares of ASARCO Common Stock to have been purchased in the Tender Offer;
(g) by either Parent or ASARCO, if any court of competent jurisdiction or other governmental body shall have issued an order (other than a temporary restraining order), decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the purchase of ASARCO Common Stock pursuant to the ASARCO Merger, and such order, decree, ruling or other action shall have become final and nonappealable; PROVIDED that the party seeking to terminate this Agreement shall have used its reasonable best efforts to prevent the entry of and to remove or lift such Restraint;
(d) by either Parent order, decree or the Company if the Company Stockholders’ Meeting (including ruling; or any adjournments statute, rule regulation, order, injunction or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval decree shall have been caused enacted, entered, promulgated or enforced by any court, administrative agency or related to commission or other governmental authority or instrumentality which prohibits or makes illegal the Company’s material breach consummation of this Agreement;
(e) by either Parent the ASARCO Merger and which, in the case of any such order, injunction or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) decree, shall have concluded become final and Parent Stockholder Approval contemplated by this Agreement shall not have been obtainednonappealable; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;or
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior OfferASARCO, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant shareholders of ASARCO fail to this Section 7.1(i) shall be void approve and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of adopt this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for and approve the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on ASARCO Merger at the part of Parent ASARCO Shareholders Meeting or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityany adjournment thereof.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyeMerge:
(a) by the mutual written consent of Parent the Company and the CompanyeMerge;
(b) by either Parent or the Company or eMerge if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six before April 1, 2007 and (6ii) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c9.01(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either the Company or eMerge if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and nonappealable and the party seeking to terminate this Agreement pursuant to this Section 9.01(c) shall have used its commercially reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company or eMerge if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company eMerge Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote at a duly held meeting of stockholders or related to the Company’s material breach of this Agreementat any adjournment thereof;
(e) by either Parent or eMerge if the Equity Capital Term Sheets reasonably acceptable to eMerge have not been delivered by the Company if Parent Stockholders’ Meeting (including any adjournments to eMerge on or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; providedbefore November 15, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement2006;
(f) by eMerge if the Definitive Commitments reasonably acceptable to eMerge have not been delivered by the Company to eMerge on or before December 15, 2006;
(g) by eMerge if at any time after December 15, 2006 the Definitive Commitments cease to be in effect or enforceable in accordance with their terms;
(h) by eMerge if the board of directors of eMerge in good faith determines that a Takeover Proposal constitutes a Superior Proposal, except that eMerge may not terminate this Agreement pursuant to this Section 9.01(h) unless and until (i) three business days have elapsed following delivery to the Company of a written notice of such determination by the board of directors of eMerge and during such three-business-day period eMerge (A) informs the Company of the terms and conditions of such Takeover Proposal and the identity of the Person making such Takeover Proposal and (B) eMerge in good faith considers any proposals made during such three day period by the Company to amend or modify the terms and conditions of this Agreement, (ii) at the end of such three-business-day period, the board of directors of eMerge continues in good faith to believe that such Takeover Proposal constitutes a Superior Proposal, (iii) simultaneously with such termination, eMerge enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal and (iv) eMerge pays to the Company the amount specified in Section 9.03 within the time period specified in Section 9.03;
(i) by the Company if the board of directors of eMerge shall have withdrawn or modified in a manner adverse to the Company its approval of this Agreement and the transactions contemplated hereby or its recommendation of approval of this Agreement to its stockholders, except the Company may not terminate this Agreement if the eMerge board of directors withdraws or modifies such approval or recommendation in the event that (i) Equity Capital Termsheets acceptable to eMerge are not delivered to eMerge by the Company on or before November 15, 2006, (ii) the Definitive Commitments acceptable to eMerge are not delivered to eMerge by the Company on or before December 15, 2006, (iii) at any time after December 15, 2006, the Definitive Commitments are no longer effective or enforceable, or (iv) if the Merger is not closed on or before April 1, 2007;
(j) by the Company if (i)(A) there is a successful tender offer made by any Person for more than 50% of the shares of eMerge Common Stock prior to the record date for the eMerge Stockholder Meeting or (B) any Person other than the eMerge board of directors acquires valid and unrevoked proxies to vote more than 50% of the shares of eMerge Common Stock at the eMerge Stockholder Meeting and (ii) Stockholder Approval is not received at the eMerge Stockholder Meeting.
(k) by either the Company or eMerge if, in the case of the Company, if Parent there shall have breached been a material breach either eMerge or failed to perform in any material respect Merger Sub of any of its representations, their respective representations or warranties, or covenants or other agreements contained in this Agreement, or if, in the case of eMerge, there shall have been a material breach by either the Company or Shield of any of their respective representations or warranties, or covenants or agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the respective conditions set forth in Section 6.1 Article VIII, as the case may be, not to be satisfied, and such breach is incapable of being cured, or Section 6.2 and (ii) is shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) breach, on or cannot be cured by the End Datebefore April 1, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation2007. In the event of termination of this Agreement pursuant to this Section 7.19.01, this Agreement shall terminate (except for the confidentiality provisions contained in Section 5.01 and the provisions of Sections 7.2, 8.2, 8.4, 8.5 9.02 and 8.69.03 and Article XI), and there shall be no other liability on the part of Parent or the Company or eMerge to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after only as follows, and subject to any approval required authorizations of the matters presented in connection with Company Board of Directors or the board of directors of Merger Sub to the extent required by the stockholders DGCL (and in the case of the Company Board of Directors, acting upon the recommendation of the Special Committee), as applicable (and notwithstanding the adoption of this Agreement by Parent and as the Company:sole stockholder of Merger Sub):
(a) by the mutual written consent of Parent the Company (upon approval of the Special Committee) and the CompanyParent;
(b) by either Parent or the Company (upon approval of the Special Committee) or Parent, if the Merger Requisite Company Stockholder Approvals shall not have been consummated obtained upon a vote taken thereon at the Company Stockholder Meeting or at any adjournment or postponement thereof;
(c) by either the Company (upon approval of the Special Committee) or Parent if the Closing shall not have occurred on or prior to the six 12:01 a.m., New York City time, on September 15, 2023 (6) month anniversary of the date hereof (such date, the “End Date”), whether such date is before or after the date of the receipt of Requisite Company Stockholder Approvals; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b7.1(c) shall may not be available exercised by any party whose failure to a party if perform any covenant or obligation under this Agreement has been the principal cause of, or resulted in, the failure of the Closing to occur by such date shall be due to have occurred on or before the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such RestraintEnd Date;
(d) by either Parent or the Company (upon approval of the Special Committee) or Parent if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) an Order by a Governmental Entity of competent jurisdiction shall have concluded been issued permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and Company Stockholder Approval contemplated by this Agreement such Order shall not have been obtainedbecome final and nonappealable; provided, however, that the right to terminate this Agreement under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by a Party if such Order (or related such Order becoming final and nonappealable) was due to the Company’s material breach of such Party of any representation, warranty, covenant or agreement of such Party set forth in this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereofupon approval of the Special Committee) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; (provided, however, that the right Company is not then in breach of any representation, warranty, covenant or other agreement contained herein such that any condition set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied) if: (A) Parent or Merger Sub shall have breached or failed to terminate under perform any of their covenants, representations or warranties contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of any condition set forth in Section 6.3(a) or Section 6.3(b); and (B) the relevant breaches, failures to perform or inaccuracies referred to in clause (A) of this Section 7.1(e) shall is or are either not be available curable or is not cured by the earlier of (x) the End Date and (y) the date that is thirty (30) calendar days following written notice from the Company to Parent where the describing such breach or failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementinaccuracy in reasonable detail;
(f) by the CompanyCompany (upon approval of the Special Committee), prior to obtaining the Requisite Company Stockholder Approvals, in accordance with Section 5.5(e) in order to enter into a definitive agreement providing for a Company Superior Proposal (after compliance in all material respects with the terms of Section 5.5) either concurrently with or immediately following such termination; provided, that immediately prior to or concurrently with (and as a condition to) the termination of this Agreement, the Company pays to Parent the Company Termination Fee in the manner provided in Section 7.3(a);
(g) by Parent (provided, that Parent is not then in breach of any representation, warranty, covenant or other agreement contained herein such that any condition set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied), if Parent (A) the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) perform, if it occurred or was continuing to occur at the Effective Time, would result in a failure of a condition set forth in Section 6.1 6.2(a) or Section 6.2(b), and (B) the relevant breaches, failures to perform or inaccuracies referred to in clause (A) of this Section 7.1(g) is or are not curable or is not cured by the earlier of (x) the End Date and (y) the date that is thirty (30) days following written notice from Parent to the Company describing such breach or failure in reasonable detail; and
(h) by Parent if, prior to obtaining the Requisite Company Stockholder Approvals, a Company Adverse Recommendation Change shall have occurred.
(i) by the Company (upon approval of the Special Committee), if (i) all of the conditions set forth in Section 6.1 and Section 6.2 (other than conditions which are to be satisfied by actions taken at the Closing, but which shall then be capable of satisfaction if the Closing were to occur on such date) have been and continue to be satisfied, (ii) is not cured within 30 days of receipt the Company has notified Parent in writing that all of the written conditions set forth in Section 6.1 and Section 6.2 have been satisfied or, with respect to the conditions set forth in Section 6.2, validly waived (or would be satisfied or validly waived if the Closing were to occur on the date of such notice contemplated by and other than the proviso below conditions set forth in this Section 7.1(f) or can6.1 which may not be cured waived by any party) and it stands ready, willing and able to consummate the End DateMerger at such time, provided, that (iii) the Company shall have given Parent written notice, delivered notice at least 30 days three (3) Business Days prior to such termination (but no later than the expected Closing Date), stating that the Company’s intention is to terminate this Agreement pursuant to this Section 7.1(f7.1(i) and (iv) Parent fails to consummate the basis for such termination;
(g) by Parent, if the Company shall have breached Closing on or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to the day after such termination three (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g3) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityBusiness Day period.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Stockholders:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either the Company or Parent if there shall be any Law that makes consummation of the Merger or the Share Issuance illegal or otherwise prohibited, or if any judgment, injunction, order or decree of a competent Governmental Authority enjoining the Company or Parent from consummating the Merger or the Share Issuance shall have been entered and such judgment, injunction, order or decree shall have become final and nonappealable; provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall have used its commercially reasonable efforts to render inapplicable such Law or regulation or remove such judgment, injunction, order or decree as required by Section 5.7;
(c) by either the Company or Parent if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof before 11:59 p.m. Eastern Time on December 7, 2015 (the “"End Date”"), ; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b7.1(c) shall not be available to a party if any Party whose material breach of any representation, warranty covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Closing to occur by such date shall be due to on or before the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such RestraintEnd Date;
(d) by either Parent or prior to obtaining the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated (i) at any time following an Adverse Recommendation Change by the Company Board or (ii) if after the date of this Agreement a Company Acquisition Proposal is publicly announced or disclosed (or any person shall have publicly announced an intention (whether or not have been obtained; conditional) to make such Company Acquisition Proposal) and the Company Board fails to affirm the Company Board Recommendation within five Business Days after receipt of a written request from Parent to do so with respect to such Company Acquisition Proposal (provided, however, that the right to terminate under this Section 7.1(d) shall not be available to in no event will the Company where the failure Board be required to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or affirm the Company if Parent Stockholders’ Meeting (including Board Recommendation more than once with respect to any adjournments particular Company Acquisition Proposal or postponements more than once with respect to a material amendment thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement);
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger or the other Acquisition Transactions by the stockholders of Parent and the Company:Company (unless otherwise indicated below):
(a) by the mutual written consent of Parent the Company and the CompanyParents;
(b) by either Parent the Company or the Company Parents if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof before September 4, 2010 (the “End Date”), provided, however, that ) and (ii) the right party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if have breached in any material respect its obligations under this Agreement in any manner that shall have proximately caused the failure of to consummate the Closing to occur by Acquisition Transactions on or before such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(c) by either Parent the Company or the Company Parents if (i) there shall be any Restraint applicable United States federal or state Law that makes the transactions contemplated by this Agreement illegal or otherwise prohibited or (ii) any Governmental Entity having any competent jurisdiction shall have entered an injunction or other order permanently restraining, enjoining or otherwise prohibiting the consummation of the effects set forth in Section 6.1(b) shall be in effect Acquisition Transactions and such injunction or order shall have become final and nonappealablenon-appealable; provided, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction;
(d) by either Parent the Company or the Company Parents if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Cable Buyer, Metro Parent or Merger Sub shall have breached or failed to perform in any material respect any of its their respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) shall not have been cured, or is not cured capable of being cured, within 30 twenty (20) days following receipt by either Parent of receipt of the written notice contemplated by of such breach or failure to perform from the proviso below in this Section 7.1(f) Company (or cannot be cured by if earlier, the End Date, provided, ); provided that the Company shall not have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention right to terminate this Agreement pursuant to this Section 7.1(f7.1(e) and if it is then in breach of any of its representations, warranties, covenants or other agreements contained in this Agreement that would result in the basis for such terminationconditions to Closing set forth in Section 6.1 or Section 6.3 not to be satisfied;
(gf) by Parentthe Parents, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) shall not have been cured, or is not cured capable of being cured, within 30 twenty (20) days following receipt by the Company of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) of such breach or cannot be cured by failure to perform from either Parent (or if earlier, the End Date, provided, that Parent ); provided the Parents shall not have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention right to terminate this Agreement pursuant to this Section 7.1(f) if either of the Parents or Merger Sub is then in breach of any of their representations, warranties, covenants or other agreements contained in this Agreement that would result in the conditions to Closing set forth in Section 6.1 or Section 6.2 not to be satisfied;
(g) by the Company, prior to receipt of the Company Stockholder Approval, if the Board of Directors of the Company or the Special Committee shall have effected a Change of Recommendation; provided, that the Company shall concurrently with a termination pursuant to this Section 7.1(g) and pay the basis for such terminationTermination Fee to the Parents or another person designated in writing by the Parents;
(h) by Parent or the Company, to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal pursuant to Section 5.3(e); provided that the Company shall concurrently with a termination pursuant to this Section 7.1(h) pay the Termination Fee to the Parents or another person designated in writing by the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3Parents;
(i) by the CompanyParents, at if (i) the Company has failed to make the Recommendation in the Proxy Statement or the Special Committee or the Board of Directors of the Company or any time other authorized committee thereof has effected a Change of Recommendation prior to obtaining the Company Stockholder Approval; (ii) the Special Committee, in order the Board of Directors of the Company or any other authorized committee thereof shall have adopted, approved, endorsed or recommended to enter into the stockholders of the Company an Alternative Proposal; (iii) a written definitive agreement tender offer or exchange offer for a outstanding shares of Company Superior OfferCommon Stock that would, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee consummated in accordance with Section 7.2its terms, constitute an Alternative Proposal shall have been commenced (other than by the Parents or any of their respective affiliates) and the Special Committee, the Board of Directors of the Company or any other authorized committee thereof recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within ten (10) business days after the public announcement of such tender or exchange offer or, if earlier, prior to the date of the Company Meeting, the Special Committee, the Board of Directors of the Company or any other authorized committee thereof fails to recommend against acceptance of such offer; (iv) the Company enters into an Alternative Acquisition Agreement; or (v) the Company, the Special Committee, the Board of Directors of the Company or any other authorized committee thereof shall have publicly announced its intention to do any of the foregoing;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offerthe Company, if Parent all of the conditions set forth in Section 6.1 and Section 6.3 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) and the Company has complied indicated in writing that the Company is ready, willing and able to consummate the transactions contemplated by this Agreement (subject to the satisfaction or waiver of all of the conditions set forth in Section 6.1 and Section 6.2), and the Parents and Merger Sub fail to consummate the transactions contemplated by this Agreement within ten (10) business days following the date on which the Closing should have occurred pursuant to Section 1.2 (it being understood that during the period of twelve (12) business days following the date on which the Closing should have occurred pursuant to Section 1.2, the Parents shall not be entitled to terminate this Agreement pursuant to Section 7.1(b)). For the avoidance of doubt, the Company may not exercise the termination right in this Section 7.1(j) if the Company’s failure to comply in any material respect with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j5.11(c) shall be void and of no force caused or effect unless Parent pays contributed materially to the Company failure of Cable Buyer, Metro Parent Termination Fee in accordance with Section 7.2;and Merger Sub to consummate the transactions under the circumstances described herein; or
(k) by Parentthe Parents, if after the date of this Agreement, there has been shall have occurred any facts, circumstances, events, conditions, occurrences or changes that have had or would reasonably be expected to have, individually or in the aggregate, a Company Change of Recommendation; or
Material Adverse Effect, which (lif curable) shall not have been cured by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate Company within twenty (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or 20) days following receipt by the Company to of written notice from the other except under Parents of such provisionsCompany Material Adverse Effect (or if earlier, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityEnd Date).
Appears in 1 contract
Samples: Merger Agreement (RCN Corp /De/)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyHi-Lo:
(a) by the mutual written consent of Parent Hi-Lo and the CompanyO'Reilly;
(b) (i) by either Parent Hi-Lo or the Company O'Reilly if the Merger Shares shall not have been consummated purchased pursuant to the Offer on or prior before June 30, 1998 and (ii) by Hi-Lo if after 90 days following the commencement of the Offer, the conditions to the six (6) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) Offer have not been satisfied or waived and Sub shall not be available have elected to a party if extend the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealableOffer; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c8.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to purchase Shares pursuant to the Offer on or before such date;
(c) by either Hi-Lo or O'Reilly if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the purchase of Shares pursuant to the Offer or the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the purchase of Shares pursuant to the Offer or consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non- appealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 8.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or Hi-Lo prior to the Company purchase of Shares pursuant to the Offer if the Company Stockholders’ Meeting Board of Directors of Hi-Lo determines in good faith based upon advice of its outside counsel (including any adjournments i) that a Takeover Proposal constitutes a Superior Proposal and (ii) that failure to accept such Superior Proposal will violate its obligations or postponements thereof) shall have concluded duties to Hi-Lo and Company Stockholder Approval contemplated by Hi-Lo's stockholders under applicable law, provided, that this Agreement shall not have been obtained; provided, however, that the right terminate pursuant to terminate under this Section 7.1(d8.1(d) shall not be available unless (A) Hi-Lo has provided O'Reilly with two business day's prior written notice of its intention to accept such Superior Proposal, together with a detailed description of the Company where terms and conditions of such Superior Proposal and (B) simultaneously with such termination Hi-Lo enters into a definitive acquisition, merger or similar agreement to effect such Superior Proposal and pays the failure Termination Fee (as defined in Section 8.2(b)) required pursuant to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this AgreementSection 8.2(b);
(e) by either Parent Hi-Lo or O'Reilly prior to the Company purchase of any Shares pursuant to the Offer if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) the other shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; providedbreached, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform comply with, in any material respect any of its representations, warranties, covenants obligations under this Agreement or any representation or warranty made by such other agreements contained in this Agreementparty shall have been untrue when made or as of the time of such termination as if made on and as of such time (except for representations and warranties made as of a specified date, which breach need be true only as of the specified date), provided such breach, failure or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) misrepresentation is not cured within 30 thirty days of receipt of after notice thereof from the written notice contemplated other party and with respect to any representation or warranty not qualified by "Material Adverse Effect," such breaches, failures or misrepresentations, individually or in the proviso below aggregate, results or is reasonably likely to result in this Section 7.1(f) a Material Adverse Effect on Hi-Lo or cannot be cured by O'Reilly, as the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationcase may be;
(gf) by Parent, O'Reilly (i) if the Company Board of Directors of Hi-Lo or any committee of the Board of Directors of Hi-Lo, (A) shall have breached withdraw, modify or failed to perform change in any material respect any adverse manner (including by amendment of the Schedule 14D-9) to O'Reilly or Sub its representations, warranties, covenants approval or other agreements contained in recommendation of this Agreement, which breach the Offer or failure the Merger, (B) shall approve or recommend any Takeover Proposal in each case, other than by O'Reilly or an affiliate of O'Reilly, or (C) shall resolve to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt take any of the written notice contemplated by the proviso below actions specified in this Section 7.1(gclauses (A) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(gB) and the basis for such terminationabove;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent Patriot and the CompanyTrident;
(b) by either Parent Trident or the Company Patriot if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof February 1, 2013 (the “End Outside Date”), ; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b7.01(b) shall not be available to a party Party if the failure of the Closing to occur by such date shall be due to the failure of such party Party to perform or comply in all material respects with the covenants and agreements of such party Party set forth in this Agreement or the Separation Agreement;
(c) by either Parent Trident or the Company Patriot if (A) there is any Restraint having any Law that makes consummation of the effects set forth in Section 6.1(bTransactions illegal or otherwise prohibited or (B) shall be in effect any Governmental Authority having competent jurisdiction has issued an order, decree or ruling or taken any other action (which the terminating Party must have complied with its obligations hereunder to resist, resolve or lift) permanently restraining, enjoining or otherwise prohibiting any material component of the transactions hereunder, and shall have become such order, decree, ruling or other action becomes final and nonappealablenon-appealable; provided, however, that the party seeking right to terminate this Agreement pursuant to this Section 7.1(c7.01(c) shall have used not be available to any Party whose failure to perform any of its reasonable best efforts to prevent the entry of and to remove obligations under Section 5.01 resulted in such Restraintorder, decree or ruling;
(d) by either Parent Trident or the Company Patriot if the Company Stockholders’ Patriot Shareholder Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder the Patriot Shareholder Approval contemplated by this Table of Contents Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.01(d) shall not be available to Patriot where the failure to obtain the Patriot Shareholder Approval shall have been caused by Patriot’s material breach of this Agreement;
(e) by either Trident or Patriot if the Trident Shareholder Meeting (including any adjournments or postponements thereof) shall have concluded and the Trident Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d7.01(e) shall not be available to the Company Trident where the failure to obtain Company Stockholder the Trident Shareholder Approval shall have been caused by or related to the CompanyTrident’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Samples: Merger Agreement (Tyco Flow Control International Ltd.)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent Patriot and the CompanyTrident;
(b) by either Parent Trident or the Company Patriot if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof February 1, 2013 (the “End Outside Date”), ; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b7.01(b) shall not be available to a party Party if the failure of the Closing to occur by such date shall be due to the failure of such party Party to perform or comply in all material respects with the covenants and agreements of such party Party set forth in this Agreement or the Separation Agreement;
(c) by either Parent Trident or the Company Patriot if (A) there is any Restraint having any Law that makes consummation of the effects set forth in Section 6.1(bTransactions illegal or otherwise prohibited or (B) shall be in effect any Governmental Authority having competent jurisdiction has issued an order, decree or ruling or taken any other action (which the terminating Party must have complied with its obligations hereunder to resist, resolve or lift) permanently restraining, enjoining or otherwise prohibiting any material component of the transactions hereunder, and shall have become such order, decree, ruling or other action becomes final and nonappealablenon-appealable; provided, however, that the party seeking right to terminate this Agreement pursuant to this Section 7.1(c7.01(c) shall have used not be available to any Party whose failure to perform any of its reasonable best efforts to prevent the entry of and to remove obligations under Section 5.01 resulted in such Restraintorder, decree or ruling;
(d) by either Parent Trident or the Company Patriot if the Company Stockholders’ Patriot Shareholder Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder the Patriot Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d7.01(d) shall not be available to the Company Patriot where the failure to obtain Company Stockholder the Patriot Shareholder Approval shall have been caused by or related to the CompanyPatriot’s material breach of this Agreement;
(e) by either Parent Trident or Patriot if the Company if Parent Stockholders’ Trident Shareholder Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder the Trident Shareholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e7.01(e) shall not be available to Parent Trident where the failure to obtain Parent Stockholder the Trident Shareholder Approval shall have been caused by or related to ParentTrident’s material breach of this Agreement;
(f) by the Company, Patriot:
(i) if Parent Trident shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement or the Separation Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 6.01 or Section 6.2 6.02 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be or has not been cured within 60 calendar days after the giving by the End Date, provided, that the Company shall have given Parent Patriot of written notice, delivered at least 30 days prior notice to Trident of such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationbreach;
(gii) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition the conditions set forth in Section 6.1 6.01 or Section 6.3 6.02 shall have become incapable of fulfillment and shall not have been waived by Patriot (iito the extent so waivable);
(iii) is not cured within 30 days of prior to receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Patriot Shareholder Approval, in order to enter into a written definitive agreement for a Company Patriot Superior Offer, if the Company has complied with its obligations under Section 5.3(d)Proposal; provided, howeverthat Patriot shall have complied in all material respects with Section 5.07; provided, further, that any such purported termination by Patriot shall have paid or shall concurrently pay the Company amounts due pursuant to this Section 7.1(i8.02(e) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;its terms; or
(jiv) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Trident Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.and
Appears in 1 contract
Samples: Merger Agreement (Pentair Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger Parent Stockholder Approvals by the stockholders of Parent and Parent, or the Companyapprovals of the shareholders of the Company or Members of Blue Sun:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six before June 30, 2007 and (6ii) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c11.1(b) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect its obligations under this Agreement in any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or manner that shall have proximately contributed to the failure to perform consummate the Mergers on or before such date;
(c) by either the Company or Parent if (i) would result in a failure Law shall have been enacted, entered or promulgated prohibiting the consummation of a condition set forth in Section 6.1 the Mergers substantially on the terms contemplated hereby or Section 6.2 and (ii) is not cured within 30 days of receipt an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the written notice Mergers substantially on the terms contemplated by the proviso below in this Section 7.1(f) hereby and such order, decree, ruling or cannot be cured by the End Date, provided, that the Company injunction shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than become final and nonappealable and the expected Closing Date), stating the Company’s intention party seeking to terminate this Agreement pursuant to this Section 7.1(f11.1(c) shall have used commercially reasonable efforts to remove such injunction, order or decree;
(d) by the Company or Parent if the Parent Stockholder Approvals shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting of stockholders of Parent or at any adjournment thereof;
(e) by Parent if Parent’s Board of Directors in good faith determines that a Takeover Proposal constitutes a Superior Proposal, except that Parent may not terminate this Agreement pursuant to this Section 11.1(e) unless and until (i) three Business Days have elapsed following delivery to the Company of a written notice of such determination by the Board of Directors of Parent and during such three-business-day period Parent (A) informs the Company of the terms and conditions of such Takeover Proposal and the basis for identity of the Person making such Takeover Proposal and (B) Parent in good faith considers any proposals made during such three day period by the Company to amend or modify the terms and conditions of this Agreement, (ii) at the end of such three-business-day period, the Board of Directors of Parent continues in good faith to believe that such Takeover Proposal constitutes a Superior Proposal and (iii) simultaneously with such termination, Parent enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal;
(f) by the Company if the Board of Directors of Parent shall have withdrawn or modified in a manner adverse to the Company its approval of this Agreement and the transactions contemplated hereby or its recommendation of approval of this Agreement to its stockholders, except the Company may not terminate this Agreement if the Parent Board of Directors withdraws or modifies such approval or recommendation in the event that (i) the Company fails to receive proceeds of and/or subscriptions for not less than $20,250,000 from the sale of Parent Series A Preferred Stock to third party investors or if such subscriptions have been terminated or (ii) if the Mergers are not closed on or before June 30, 2007;
(g) by the Company if (i)(A) there is a successful tender offer made by any Person for more than 50% of the shares of Parent Common Stock prior to the record date for the Parent Stockholder Meeting or (B) any Person other than the Parent Board of Directors acquires valid and unrevoked proxies to vote more than 50% of the shares of Parent Common Stock at the Parent Stockholder Meeting and (ii) the Parent Stockholder Approvals are not received at the Parent Stockholder Meeting.
(h) by either the Company or Parent if, in the case of the Company, there shall have been a material breach either Parent or Merger Sub of any of their respective representations or warranties, or covenants or agreements contained in this Agreement, or if, in the case of Parent, if there shall have been a material breach by either the Company shall have breached or failed to perform in any material respect Blue Sun of any of its representations, their respective representations or warranties, or covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the respective conditions set forth in Section 6.1 Article IX or Section 6.3 Article X, as the case may be, not to be satisfied, and (ii) such breach is incapable of being cured, or shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(g) breach, on or cannot be cured by the End Datebefore June 30, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation2007. In the event of any termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate 11.1 (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6other than pursuant to clause (a)), and there written notice setting forth the reasons thereof shall forthwith be no other liability on given by the part of Parent or the Company terminating party to the other except under such provisionsparties. The date, or for liability arising out of fraud or intentional or material breach of if any, on which this Agreement or as provided for in the Confidentiality Agreementis terminated pursuant to this Section 11.1, in which case the aggrieved party shall be entitled referred to all rights and remedies available at law or in equityherein as the “Termination Date”.
Appears in 1 contract
Samples: Merger Agreement (M Wave Inc)
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six before October 31, 2006 and (6ii) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c8.01 shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either the Company or Parent if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and nonappealable and the party seeking to terminate this Agreement pursuant to this Section 8.01 shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company or Parent if (i) the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval the required vote at a duly held meeting of stockholders or at any adjournment thereof, or (ii) the NASD shall not have been caused by or related to approved the Company’s material breach of this AgreementNASD 1017 Application;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by the board of directors of the Company reasonably determines that a Takeover Proposal constitutes a Superior Proposal, except that the Company may not terminate this Agreement shall not pursuant to this Section 8.01 unless and until (i) three business days have been obtained; provided, however, elapsed following delivery to Parent of a written notice of such determination by the board of directors of the Company and during such three-business-day period the Company (A) informs Parent of the terms and conditions of the Takeover Proposal and the identity of the person making the Takeover Proposal and (B) the Company otherwise cooperates with Parent with respect thereto (except that the right to terminate under this Section 7.1(e) board of directors of the Company shall not be available required to take any action that it believes, after consultation with outside legal counsel, would present a reasonable possibility of violating its obligations to the Company or the Company's stockholders under applicable law) with the intent of enabling Parent to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (ii) at the end of such three-business-day period the board of directors of the Company continues reasonably to believe that the Takeover Proposal constitutes a Superior Proposal, (iii) simultaneously with such termination, the Company enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal and (iv) the Company pays to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementamount specified in Section 8.02 within the time period specified in Section 8.02;
(f) by Parent if the Company, if Parent board of directors of the Company shall have breached (i) withdrawn or failed modified in a manner adverse to perform in Parent its approval or recommendation of this Agreement and the transactions contemplated hereby or (ii) approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal;
(g) by Parent if a tender offer or exchange offer for 50% or more of the outstanding shares of capital stock of the Company is commenced by a party other than Parent or an affiliate of Parent prior to the Company Meeting, and the board of directors of the Company fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders) within the time period specified by Rule 14e-2 under the Exchange Act;
(h) by either the Company or Parent if there shall have been a material respect breach by the other of any of its representationsrepresentations or warranties (as such representations or warranties made by the Company may be modified by the Disclosure Schedules, warrantiesas updated pursuant to Section 6.07), or covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the respective conditions set forth in Section 6.1 Article VII, as the case may be, not to be satisfied, and such breach is incapable of being cured or Section 6.2 and (ii) is shall not have been cured within 30 15 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.18.01, this Agreement shall terminate (except for the confidentiality provisions contained in Section 5.01 and the provisions of Sections 7.28.02, 8.2, 8.4, 8.5 8.03 and 8.610.10), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything in a. It shall be cause for the immediate termination of this Agreement Contract if, after its execution, the COUNTY determines that:
i) Either the CONTRACTOR or any of its principals, partners or corporate officers, if a corporation, including the corporation itself, has plead nolo contendere, or has plead or been found guilty of a criminal violation, whether state or federal, involving, but not limited to, governmental sales or purchases, including but not limited to the contraryrigging of bids, price fixing, or any other collusive and illegal activity pertaining to bidding and governmental contracting; or
ii) CONTRACTOR has subcontracted, assigned, delegated, transferred its rights, obligations or interests under this Agreement Contract without the County’s consent or approval; or
iii) CONTRACTOR has filed bankruptcy, become insolvent or made an assignment for the benefit of creditors, or a receiver, or similar officer has been appointed to take charge of all or part of CONTRACTOR assets.
b. The COUNTY may terminate the Contract upon five (5) days written notice by the COUNTY or its authorized agent to the CONTRACTOR for Contractor’s failure to provide the Services specified under this Contract.
c. This Contract may be terminated and abandoned at any time prior by either party by giving thirty (30) days written notice to the Effective Timeother, whether before or after any approval the effective date of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof termination (the “End Termination Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination such termination, the CONTRACTOR shall be paid for all Services rendered prior to the Termination Date, provided the CONTRACTOR shall have delivered to COUNTY such statements, accounts, reports and other materials as required under this Contract; however, CONTRACTOR shall not be compensated for any anticipatory profits that have not been earned as of this Agreement pursuant the date of the Termination Date. All Services completed by CONTRACTOR prior to this Section 7.1, this Agreement the Termination Date shall terminate (except be documented and tangible work documents shall be transferred to and become the sole property of the COUNTY prior to payment for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on Services rendered.
d. Notwithstanding the part of Parent above or the Company any section herein to the other except under such provisionscontrary, or CONTRACTOR shall not be relieved of liability to the COUNTY for liability arising out damages sustained by the COUNTY by virtue of fraud or intentional or material any breach of this Agreement or the Contract by CONTRACTOR and the COUNTY may withhold any payments to CONTRACTOR for the purpose of setoff until such time as provided for in the Confidentiality Agreement, in which case exact amount of damages due the aggrieved party shall be entitled to all rights and remedies available at law or in equityCOUNTY from CONTRACTOR is determined.
Appears in 1 contract
Samples: County/Contractor Agreement
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this (a) This Agreement may be terminated and the Transactions may be abandoned at any time prior to before the Effective Appointment Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent and the Company;
(bi) by either Parent (by action duly authorized by the Parent Board of Directors, or an authorized committee thereof) or the Company (by action of the Company Board of Directors):
(A) if there has been a breach by the other party of any representation, warranty, covenant or agreement set forth in this Agreement, which breach (1) in the case of the Company shall result in any condition or requirement set forth in Annex I not being satisfied, and (2) in the case of a breach by Parent or Purchaser, shall have had or is reasonably like to have, individually or in the aggregate, a material adverse effect upon Parent or Purchaser’s ability to consummate the Offer or Merger (and in each case such breach is not reasonably capable of being cured or such condition is not reasonably capable of being satisfied within fifteen (15) Business Days after the receipt of notice thereof by the defaulting party from the non-defaulting party, it being understood and agreed that this Agreement may not be terminated pursuant to this Section 7.1(a)(i)(A) during, or following, such period of fifteen (15) Business Days if such breach is cured during such period); provided, however, that the right to terminate this Agreement is not available to the non-breaching party if the Merger other party is at that time in material breach of this Agreement;
(B) if Purchaser shall not have been consummated accepted for payment and paid for all Shares tendered pursuant to the Offer in accordance with the terms thereof on or prior to before the six (6) month anniversary of the date hereof (the “End Initial Outside Date”), ; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b7.1(a)(i)(B) shall not be available to a any party if the failure whose breach of the Closing to occur by such date shall be due to the failure of such party to perform any representation, warranty, covenant or comply in all material respects with the covenants and agreements of such party agreement set forth in this AgreementAgreement has been the cause of, or resulted in, Purchaser’s failure to accept for payment and pay for all Shares tendered pursuant to the Offer prior to the Initial Outside Date;
(cC) if the Offer shall have expired or been terminated in accordance with the terms of this Agreement without Parent or Purchaser having accepted for purchase any Shares pursuant to the Offer other than due to a breach of this Agreement by the terminating party; or
(ii) by Parent, if (A) the Company Board of Directors or any committee thereof shall have effected a Company Change in Recommendation (whether or not in compliance with Section 5.4), (B) the Company Board of Directors or any committee thereof shall have approved or recommended any Superior Proposal, (C) the Company or any Company Subsidiary shall have entered into any agreement (other than a confidentiality agreement as contemplated by Section 5.3(b)), including any letter of intent, with respect to any Acquisition Proposal, (D) the Company shall have failed to include the Company Recommendation in the Schedule 14D-9 or refused to permit Parent and Purchaser to include the Company Recommendation in the Offer Documents, (E) the Company Board of Directors shall have failed to reconfirm the Company Recommendations or its approval of this Agreement, the Offer, the Merger or any other Transaction promptly, and in any event within five (5) Business Days following Parent’s request to do so or (F) the Company Board of Directors or any committee thereof shall have resolved to take any action described in the preceding clauses (A) through (E);
(iii) by the Company, immediately prior to entering into a definitive agreement with respect to a Superior Proposal, provided that (A) the Company received such Superior Proposal other than as a result of a breach of or violation of the terms of Section 5.3 hereof, (B) the Company has not breached or violated the terms of Section 5.3 or 5.4 hereof in connection with such Superior Proposal, (C) subject to the terms of this Agreement, the Company Board of Directors has effected a Company Change in Recommendation in response to such Superior Proposal pursuant to and in compliance with Section 5.4(c) and authorized the Company to enter into such definitive agreement for such Superior Proposal (which authorization may be subject to termination of this Agreement), (D) immediately prior to the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 7.2(b) hereof, and (E) immediately following the termination of this Agreement, the Company enters into such definitive agreement to effect such Superior Proposal; or
(iv) by the Parent, if the Company or any of its Representatives, shall have intentionally or willfully breached Section 5.3.
(b) This Agreement may be terminated and the Transactions may be abandoned at any time before the Effective Time, whether before or after stockholder approval thereof:
(i) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent a court of competent jurisdiction or other Governmental Entity shall have breached issued a final, non-appealable order, decree or failed to perform ruling in any material respect any of its representationseach case permanently restraining, warranties, covenants enjoining or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of otherwise prohibiting the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of RecommendationTransactions; or
(lii) by mutual written consent of Parent and the Company, if there has been a Company duly authorized by the Company Board of Directors and the Board of Directors of Parent Change (the “Parent Board of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6Directors”), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityauthorized committee thereof.
Appears in 1 contract
Samples: Merger Agreement (Datascope Corp)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyCompany Stockholders:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either the Company or Parent if there shall be any Law that makes consummation of the Merger or the Share Issuance illegal or otherwise prohibited, or if any judgment, injunction, order or decree of a competent Governmental Authority enjoining the Company or Parent from consummating the Merger or the Share Issuance shall have been entered and such judgment, injunction, order or decree shall have become final and nonappealable; provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall have used its commercially reasonable efforts to render inapplicable such Law or regulation or remove such judgment, injunction, order or decree as required by Section 5.7;
(c) by either the Company or Parent if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof before 11:59 p.m. Eastern Time on December 7, 2015 (the “End Date”), ; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b7.1(c) shall not be available to a party if any Party whose material breach of any representation, warranty covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Closing to occur by such date shall be due to on or before the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent the entry of and to remove such RestraintEnd Date;
(d) by either Parent prior to obtaining the Company Stockholder Approval (i) at any time following an Adverse Recommendation Change by the Company Board or (ii) if after the date of this Agreement a Company Acquisition Proposal is publicly announced or disclosed (or any person shall have publicly announced an intention (whether or not conditional) to make such Company Acquisition Proposal) and the Company Board fails to affirm the Company Board Recommendation within five Business Days after receipt of a written request from Parent to do so with respect to such Company Acquisition Proposal (provided, however, that in no event will the Company Board be required to affirm the Company Board Recommendation more than once with respect to any particular Company Acquisition Proposal or more than once with respect to a material amendment thereof);
(e) by Parent or the Company if the Company Stockholders’ Stockholders Meeting has concluded (including after taking into account any adjournments adjournment or postponements postponement thereof) shall have concluded ), the Company Stockholders voted and the Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by Parent or the Company, Company if Parent there shall have breached or failed to perform in any material respect been a breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, or if any Event shall have occurred, which breach or failure to perform (i) Event would result in a the failure of a condition one or more of the conditions set forth in Section 6.1 6.2(a), Section 6.2(b) or Section 6.2 6.2(c) (in the case of a breach by, or Event with respect to, Parent) or Section 6.3(a), Section 6.3(b) or Section 6.3(c) (in the case of a breach by, or Event with respect to, the Company) to be satisfied on or prior to the End Date, and such breach or Event shall not be capable of being cured or shall not have been cured by the earlier of (i) the End Date and (ii) is not cured within 30 days of receipt of the Business Days after detailed written notice contemplated thereof shall have been received by the proviso below Party alleged to be in this Section 7.1(f) breach or cannot be cured by the End Datewith respect to which an Event is alleged to have occurred, provided, however, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention Party seeking to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
is not then in material breach of any representation, warranty or covenant under this Agreement; (g) by Parent, Parent if the Company there shall have breached or failed to perform in any been a material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d5.4(a); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyFNNI by action of their respective boards of directors;
(b) by either Parent FNNI within ten days after completion of the Due Diligence Review if FNNI discovers information from which a reasonable buyer would conclude that the business, results of operations or financial condition of the Company if or any Subsidiary are, in the Merger shall not have been consummated on or prior to aggregate, materially different than as described in the six (6) month anniversary of Company SEC Reports, the date hereof (2000 Financial Statements and the “End Date”), provided, however, that the right to terminate representations and warranties in this Agreement pursuant to this Section 7.1(b) shall not be available to a party if (including the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this AgreementSchedules hereto);
(c) by either Parent or the Company or FNNI if any Restraint having any of (i) the effects set forth in Section 6.1(bEffective Time shall not have occurred on or before March 31, 2002 and (ii) shall be in effect and shall have become final and nonappealable; provided, that the party Party seeking to terminate this Agreement pursuant to this Section 7.1(c8.01 shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(d) by either the Company or FNNI if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and nonappealable and the Party seeking to terminate this Agreement pursuant to this Section 8.01(d) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
(d) by either Parent injunction, order or the Company if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreementdecree;
(e) by either Parent or the Company if Parent Stockholders’ the stockholders of the Company fail to approve the Merger at the Company Meeting (including or at any adjournments or postponements adjournment thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, Company if Parent the board of directors of the Company reasonably determines that a Purchase Proposal constitutes a Superior Proposal and the Company pays to FNNI the amount specified in Section 8.02 within the time period specified in Section 8.02;
(g) by FNNI if the board of directors of the Company shall have breached (i) withdrawn or failed modified in a manner adverse to perform in FNNI its approval or recommendation of this Agreement and the transactions contemplated hereby or (ii) approved or recommended, or proposed publicly to approve or recommend, any Purchase Proposal;
(h) by FNNI if a tender offer or exchange offer for 50% or more of the outstanding shares of capital stock of the Company is commenced prior to the Company Meeting, and the board of directors of the Company fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders) within the time period specified by Rule 14e-2 under the Exchange Act; or
(i) by either the Company or FNNI if there shall have been a material respect breach by the other of any of its representationsrespective representations or warranties (as such representations or warranties made by the Company may be modified by the Disclosure Schedules, warrantiesas updated pursuant to Section 6.07), or covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the respective conditions set forth in Section 6.1 Article VII, as the case may be, not to be satisfied, and such breach is incapable of being cured or Section 6.2 and (ii) is shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below Party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.18.01, this Agreement shall terminate (except for the confidentiality provisions contained in Section 5.02 and the provisions of Sections 7.2, 8.2, 8.4, 8.5 8.02 and 8.69.10), and there shall be no other liability on the part of Parent or the Company or FNNI to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityLetter.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if (i) the Merger Effective Time shall not have been consummated occurred on or prior to the six before October 31, 2006 and (6ii) month anniversary of the date hereof (the “End Date”), provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c8.01 shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either the Company or Parent if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and nonappealable and the party seeking to terminate this Agreement pursuant to this Section 8.01 shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company or Parent if (i) the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval the required vote at a duly held meeting of stockholders or at any adjournment thereof, or (ii) the NASD shall not have been caused by or related to approved the Company’s material breach of this AgreementNASD 1017 Application;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by the board of directors of the Company reasonably determines that a Takeover Proposal constitutes a Superior Proposal, except that the Company may not terminate this Agreement shall not pursuant to this Section 8.01 unless and until (i) three business days have been obtained; provided, however, elapsed following delivery to Parent of a written notice of such determination by the board of directors of the Company and during such three-business-day period the Company (A) informs Parent of the terms and conditions of the Takeover Proposal and the identity of the person making the Takeover Proposal and (B) the Company otherwise cooperates with Parent with respect thereto (except that the right to terminate under this Section 7.1(e) board of directors of the Company shall not be available required to take any action that it believes, after consultation with outside legal counsel, would present a reasonable possibility of violating its obligations to the Company or the Company’s stockholders under applicable law) with the intent of enabling Parent to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (ii) at the end of such three-business-day period the board of directors of the Company continues reasonably to believe that the Takeover Proposal constitutes a Superior Proposal, (iii) simultaneously with such termination, the Company enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal and (iv) the Company pays to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementamount specified in Section 8.02 within the time period specified in Section 8.02;
(f) by Parent if the Company, if Parent board of directors of the Company shall have breached (i) withdrawn or failed modified in a manner adverse to perform in Parent its approval or recommendation of this Agreement and the transactions contemplated hereby or (ii) approved or recommended, or proposed publicly to approve or recommend, any Takeover Proposal;
(g) by Parent if a tender offer or exchange offer for 50% or more of the outstanding shares of capital stock of the Company is commenced by a party other than Parent or an affiliate of Parent prior to the Company Meeting, and the board of directors of the Company fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders) within the time period specified by Rule 14e-2 under the Exchange Act;
(h) by either the Company or Parent if there shall have been a material respect breach by the other of any of its representationsrepresentations or warranties (as such representations or warranties made by the Company may be modified by the Disclosure Schedules, warrantiesas updated pursuant to Section 6.07), or covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the respective conditions set forth in Section 6.1 Article VII, as the case may be, not to be satisfied, and such breach is incapable of being cured or Section 6.2 and (ii) is shall not have been cured within 30 15 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.18.01, this Agreement shall terminate (except for the confidentiality provisions contained in Section 5.01 and the provisions of Sections 7.28.02, 8.2, 8.4, 8.5 8.03 and 8.610.10), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the CompanyClosing Date:
(a) by the mutual written consent of Parent MWS and the CompanyBuyer;
(b) by either Parent MWS or the Company Buyer if the Merger Closing Date shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before September 30, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1998; provided, that that, the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 7.1(b) shall not have used breached in any material respect its reasonable best efforts obligations under this Agreement in any manner that shall have proximately contributed to prevent the entry failure to consummate the Closing on or before such date;
(c) by either MWS or Buyer if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Closing substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Closing substantially on the terms contemplated hereby and to remove such Restraintorder, decree, ruling or injunction shall have become final and non-appealable;
(d) by either Parent Buyer at any time prior to the Closing in the event any of the Sellers or any of the Company if the Company Stockholders’ Meeting (including Companies has breached any adjournments representation, warranty, or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by covenant contained in this Agreement in any material respect, the Buyer has notified MWS of the breach, and the breach has continued without cure for a period of 30 days after the notice of breach; provided that Buyer shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representationsrepresentation, warranties, covenants warranty or other agreements covenant contained in this Agreement; and
(e) MWS may terminate this Agreement on behalf of the Sellers and the Companies by giving written notice to the Buyer at any time prior to the Closing in the event the Buyer has breached any material representation, which warranty, or covenant contained in this Agreement in any material respect, MWS has notified the Buyer of the breach, and the breach or failure to perform (i) would result in has continued without cure for a failure period of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days after the notice of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, breach; provided that the no Seller and no Company shall have given Parent written noticebreached in any material respect any material representation, delivered at least 30 days prior to such termination warranty or covenant contained in this Agreement.
(but no later than f) MWS may terminate this Agreement on behalf of the expected Closing Date), stating Sellers and the Company’s intention Companies in accordance with the provisions of Section 5.9. The party desiring to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company 7.1 shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the give written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to of such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityparty.
Appears in 1 contract
Samples: Unit and Stock Purchase and Sale Agreement (Chancellor Media Corp of Los Angeles)
Termination or Abandonment. Notwithstanding anything -------------------------- contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders of Parent and the Company:
(a) by the mutual written consent of Parent the Company and the CompanyParent;
(b) by either Parent or the Company or Parent if (i) the Merger Effective Time shall - not have been consummated occurred on or prior before March 31, 2000 and (ii) the party seeking to the six (6) month anniversary of the date hereof (the “End Date”), provided, however, that the right to -- terminate this Agreement pursuant to this Section clause 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date have breached in any material respect its obligations under this Agreement in any manner that shall be due have proximately contributed to the failure of to consummate the Merger on or before such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(c) by either Parent or the Company or Parent if any Restraint having any (i) a statute, rule, - regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the effects set forth in Section 6.1(bMerger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction -- shall be in effect have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and nonappealable; provided, that non-appealable and the party seeking to terminate this Agreement pursuant to this Section 7.1(cclause 7.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company if the approval of the stockholders of the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval shall have been caused by the required vote at a duly held meeting of stockholders or related to the Company’s material breach of this Agreementat any adjournment thereof;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by the Company has received a Superior Proposal, except that the Company may not terminate this Agreement shall not pursuant to this clause 7.1(e) unless and until (i) four business days have been obtained; providedelapsed - following delivery to Parent of a written notice of the determination by the Board of Directors of the Company to terminate this Agreement, however, and during such four business day period the Company (x) informs Parent of the - terms and conditions of the Superior Proposal and the identity of the person making the Superior Proposal and (y) otherwise cooperates with - Parent with respect thereto with the intent of enabling Parent to agree to a modification of the terms and conditions of this Agreement so that the right transactions contemplated hereby may be effected, (ii) at the end of such -- four business day period the Takeover Proposal continues to terminate under be a Superior Proposal, taking into account any amendment of the terms of this Section 7.1(eAgreement or the Merger by Parent or any firm proposal (without conditions) shall not be available by Parent to amend the terms of this Agreement or the Merger, (iii) simultaneously --- with such termination the Company enters into a definitive acquisition, merger or similar agreement to effect the Superior Proposal and (iv) the Company pays to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementamount specified and -- within the time period specified in Section 7.2;
(f) by Parent if the Company, if Parent Board of Directors of the Company shall have breached (i) - withdrawn or failed modified in a manner adverse to perform in Parent its approval or recommendation of this Agreement and the transactions contemplated hereby or (ii) approved or recommended, or proposed publicly to approve or -- recommend, any Takeover Proposal;
(g) by Parent if a tender offer or exchange offer for 50% or more of the outstanding shares of capital stock of the Company is commenced prior to the Company Meeting, and the Board of Directors of the Company fails to recommend against acceptance of such tender offer or exchange offer by its stockholders (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders) within the time period specified by Rule 14e-2; or
(h) by either the Company or Parent if there shall have been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) if not cured would result in a failure of a condition cause the conditions set forth in Section 6.1 Sections 6.2(a) or Section 6.2 6.3(a), as the case may be, not to be satisfied, and (ii) such breach is incapable of being cured or shall not have been cured within 30 days of receipt of the written after notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendationbreach. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the Confidentiality Agreement referred to in Section 5.2 and the provisions of Sections 7.2, 8.2, 8.4, 8.5 8.4 and 8.68.5), and there shall be no other liability on the part of Parent or the Company or Parent to the other except under such provisions, or for liability arising out of fraud or an intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger this Agreement by the stockholders of Parent and the Company:
Arcadian: (a) by the mutual written consent of Parent PCS and the Company;
Arcadian; (b) by either Parent PCS or the Company Arcadian if the Merger Effective Time shall not have been consummated occurred on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before February 28, provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable1997; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(c8.01(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date; (c) by PCS or Arcadian if a United States federal or state court of competent jurisdiction or United States governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions substantially on the terms contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-appealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 8.01(c) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraint;
restraint, injunction or prohibition; (d) by either Parent or PCS if (i) the Company if approvals of the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval stockholders of Arcadian contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where obtained by reason of the failure to obtain Company Stockholder Approval the required vote at a duly held meeting of stockholders or any adjournment thereof or (ii) prior to the Special Meeting, the Board of Directors of Arcadian shall have been caused by withdrawn or related modified, or resolved to the Company’s material breach withdraw or modify its approval or recommendation of this Agreement;
; (e) by either Parent Arcadian or PCS, by a written notice delivered to the other party on or before 5:00 p.m. (Memphis time) on the 14th day after the date of this Agreement, if Arcadian's or PCS's, as the case may be, investigation of the business and operations of the other party shall have revealed the existence of 27 33 a fact or condition relating to such other party or its Subsidiaries that (i) is not disclosed in the PCS Disclosure Documents or the Company if Parent Stockholders’ Meeting Arcadian SEC Documents, as the case may be, and (including ii) in the terminating party's reasonable, good-faith judgment has had or may reasonably be expected to have a Material Adverse Effect on the other party in excess of any adjournments provision made with respect thereto in the other party's December 31, 1995 or postponements thereofJune 30, 1996 financial statements included in the PCS Disclosure Documents or Arcadian SEC Documents, as the case may be. Any such notice delivered pursuant to the first sentence of this Section 8.01(e) shall outline in reasonable detail the basis for such termination; (f) by Arcadian, if its Board of Directors shall have concluded determined, in its good faith judgment after consultation with legal counsel and Parent Stockholder Approval financial advisors, that such Board's fiduciary duties require termination of this Agreement; (g) by Arcadian, if the approval of the stockholders of Arcadian contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where obtained by reason of the failure to obtain Parent Stockholder Approval shall have been caused by the required vote at a duly held meeting of such stockholders or related to Parent’s material breach of this Agreement;
(f) by the Company, if Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.2 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such termination;
(g) by Parent, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or Section 6.3 and (ii) is not cured within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;
adjournment thereof; (h) by Parent Arcadian or by PCS, if the Company, in the event the other party Final PCS Common Stock Price is either (i) less than $65.00 or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(ii) greater than $90.00; and (i) by PCS, by a written notice delivered to Arcadian on or before 5:00 p.m. Memphis time on the Company14th day after the date of this Agreement based on PCS's reasonable determination that the cost of causing Arcadian's interests in Arcadian Trinidad Corporation, at Arcadian Fertilizer Corporation, AA Sulfuric Corporation, August Service Company Inc., Arcadian LCD Corporation and Arcadian FMF, L.L.C. and any time prior other interests in corporations or limited liability companies held by Arcadian Partners, L.P. or Arcadian Fertilizer L.P. to obtaining Company Stockholder Approvalbe held through a chain of corporations with no partnership in the chain of ownership exceeds $25,000,000 in addition to the costs of retiring debt (including, in order to enter into a written definitive agreement for a Company Superior Offerthe costs of retiring such debt, if the Company has complied with its obligations under Section 5.3(dall prepayment premiums payable thereon); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.18.01, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6)terminate, and there shall be no other liability under this Agreement on the part of Parent or the Company either party to the other party except under that (i) the obligations contained in Section 9.02 and in the Confidentiality Agreement shall survive the termination hereof and (ii) no such provisions, termination shall relieve either party of any liability or for liability damages arising out of fraud or intentional or material a breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equityby that party.
Appears in 1 contract
Samples: Merger Agreement (Arcadian Corp)
Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this This Agreement may be -------------------------- terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after Time (notwithstanding any approval of the matters presented in connection with the Merger this Agreement by the stockholders shareholders of Parent and the Company:):
(a) by the mutual written consent of Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have been consummated on or prior to the six (6) month anniversary of the date hereof (the “End Date”)before July 15, 1999; provided, however, that the right to terminate this Agreement pursuant to under this Section 7.1(b) shall not be available to a any party if whose failure to perform any covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Closing Merger to occur by on or before such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreementdate;
(c) by either Parent if (i) the Board of Directors of the Company shall or shall resolve to (A) withdraw the Company Board Recommendation, (B) modify such recommendation in a manner adverse to Parent or MergerSub or refuse to affirm the Company if Board Recommendation as promptly as practicable (but in any Restraint having case within 10 business days) after receipt of any of the effects set forth written request from Parent which request was made on a reasonable basis, or (C) approve or recommend any proposed Company Business Combination (as defined in Section 6.1(b7.3(d)), or (ii) shall be the Company has failed to call the Company Meeting or to mail the Proxy Statement to its shareholders on or before June 7, 1999, or has failed to include in effect and shall have become final and nonappealable; provided, that such statement mailed by the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used its reasonable best efforts to prevent Company the entry of and to remove such RestraintCompany Board Recommendation;
(d) by either Parent or the Company if at the Company Stockholders’ Meeting (including any adjournments adjournment or postponements postponement thereof) shall have concluded and the requisite vote of the shareholders of the Company Stockholder Approval contemplated by to approve this Agreement and the Merger shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this Agreement;
(e) by either the Company or Parent, if there shall be any Law or Decree that prohibits or makes illegal consummation of the Merger or if any Decree enjoining Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) from consummating the Merger is entered and such Decree shall have concluded become final and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreementnonappealable;
(f) by Parent or the Company, Company if Parent there shall have breached or failed to perform in any been a material respect breach by the other of any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a the failure to satisfy one or more of a condition the conditions set forth in Section 6.1 6.2 (in the case of a breach by the Company) or Section 6.2 6.3 (in the case of a breach by Parent), and (ii) is such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured within 30 days of receipt of the after written notice contemplated thereof shall have been received by the proviso below party alleged to be in this Section 7.1(f) or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationbreach;
(g) by Parent, Parent if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result the Company has filed a petition in a failure of a bankruptcy, is insolvent or has sought relief under any law related to the Company's financial condition set forth in Section 6.1 or Section 6.3 and its ability to meet its payment obligations or (ii) any involuntary petition in bankruptcy has been filed against Company, or any relief under any such law has been sought by any creditor(s) of Company, unless such involuntary petition is not cured dismissed, or such relief is denied, within 30 days of receipt of the written notice contemplated by the proviso below in this Section 7.1(g) after it has been filed or cannot be cured by the End Date, provided, that Parent shall have given the Company written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination;sought; or
(h) by Parent or the Company, in the event the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
if (i) by either (x) the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if aggregate liabilities of the Company has complied with and its obligations under Section 5.3(d); provided, however, that any such purported termination by Subsidiaries taken as a whole or (y) the consolidated net working capital of the Company pursuant and its Subsidiaries, each as set forth on the Final Audited Financials, is subject to this Section 7.1(ian adverse change in excess of 3% of such aggregate liabilities or consolidated net working capital, respectively, as set forth in the Draft Audited Financials or (ii) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee fails to deliver the Final Audited Financials in accordance with the time parameters set forth in Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent or the Company to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to all rights and remedies available at law or in equity5.13.
Appears in 1 contract
Termination or Abandonment. Notwithstanding anything -------------------------- contained in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the matters presented in connection with the Merger by the stockholders shareholders of Parent and the CompanyTarget:
(a) by the mutual written consent of Parent Target and the CompanyAcquiror;
(b) by either Parent Target or the Company Acquiror if the Merger Effective Time shall not have been consummated occurred on or prior to before November 15, 2000, or in the six (6) month anniversary event of the date hereof (the “End Date”)a Long Form Merger, providedFebruary 15, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the failure of such party to perform or comply in all material respects with the covenants and agreements of such party set forth in this Agreement;
(c) by either Parent or the Company if any Restraint having any of the effects set forth in Section 6.1(b) shall be in effect and shall have become final and nonappealable2001; provided, that the party seeking to terminate this Agreement -------- pursuant to this Section 7.1(cclause 7.1(b) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure to consummate the Merger on or before such date;
(c) by either Target or Acquiror if (i) a statute, rule, regulation or executive order shall have been enacted, entered or promulgated prohibiting the consummation of the Merger substantially on the terms contemplated hereby or (ii) an order, decree, ruling or injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated hereby and such order, decree, ruling or injunction shall have become final and non-appealable; provided, that the party -------- seeking to terminate this Agreement pursuant to this clause 7.1(c)(ii) shall have used its reasonable best efforts to prevent the entry of and to remove such Restraintinjunction, order or decree;
(d) by either Parent or the Company Acquiror if the Company Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Company Stockholder Approval contemplated by this Agreement shall Alternate Condition is not have been obtained; provided, however, that satisfied after the right to terminate under this Section 7.1(d) shall not be available to final expiration date of the Company where the failure to obtain Company Stockholder Approval shall have been caused by or related to the Company’s material breach of this AgreementOffer;
(e) by either Parent or the Company if Parent Stockholders’ Meeting (including any adjournments or postponements thereof) shall have concluded and Parent Stockholder Approval contemplated by this Agreement shall not have been obtained; provided, however, that the right to terminate under this Section 7.1(e) shall not be available to Parent where the failure to obtain Parent Stockholder Approval shall have been caused by or related to Parent’s material breach of this Agreement;
(f) by the CompanyTarget, if Parent Acquiror shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 6.2(a) or Section 6.2 -------------- (b), and (ii) is incapable of being cured by Acquiror or is not cured within 30 --- days of receipt notice of the written notice contemplated by the proviso below in this Section 7.1(f) such breach or cannot be cured by the End Date, provided, that the Company shall have given Parent written notice, delivered at least 30 days prior to such termination (but no later than the expected Closing Date), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(f) and the basis for such terminationfailure;
(gf) by ParentAcquiror, if the Company Target shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a give rise to the failure of a condition set forth in Section 6.1 6.3(a) or Section 6.3 -------------- (b), and (ii) is incapable of being cured by Target or is not cured within 30 --- days of receipt notice of the written notice contemplated such breach or failure.
(g) by the proviso below in this Section 7.1(g) or cannot be cured by the End DateTarget, provided, that Parent shall have given the Company written notice, delivered if at least 30 days any time prior to such termination the acceptance for payment of shares of Target Common Stock pursuant to the Offer a Superior Proposal is received by Target and Target's Board of Directors reasonably determines in good faith (but no later than after receiving advice of outside legal counsel) that it is necessary to terminate this Agreement and enter into an agreement to effect the expected Closing Date), stating Parent’s intention Superior Proposal to comply with its fiduciary duties under applicable law; provided that Target may not terminate this Agreement pursuant to this Section 7.1(g) unless and until (i) three (3) Business Days have elapsed following delivery to Acquiror of a written notice of such determination by Target's Board of Directors and during such three (3) Business Day period Target has fully cooperated with Acquiror, including without limitation, informing Acquiror of the terms and conditions of such Superior Proposal, and the basis for identity of the person making such Superior Proposal, with the intent of enabling both parties to agree to a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected; (ii) at the end of such three (3) Business Day period the Takeover Proposal continues to constitute a Superior Proposal and Target's Board of Directors confirms its determination (after receiving the advice of outside legal counsel) that it is necessary to terminate this Agreement and enter into an agreement to effect the Superior Proposal to comply with its fiduciary duties under applicable law; and (iii) (x) at or prior to such termination;
, Acquiror has received payment of the amounts described in Section 7.2 hereby by wire transfer in same day funds and (hy) by Parent as soon as practicable following such termination Target enters into a definitive acquisition, merger or similar agreement to effect the CompanySuperior Proposal. Except as provided in Sections 7.2 and 8.2 of this Agreement, in the event of ------------ --- the other party or any of such other party’s Subsidiaries or their respective affiliates, directors, officers, employees or Representatives shall have breached in any material respect any of their respective obligations under Section 5.3;
(i) by the Company, at any time prior to obtaining Company Stockholder Approval, in order to enter into a written definitive agreement for a Company Superior Offer, if the Company has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by the Company pursuant to this Section 7.1(i) shall be void and of no force or effect unless Parent pays to Parent the Company Termination Fee in accordance with Section 7.2;
(j) by Parent, at any time prior to obtaining Parent Stockholder Approval, in order to enter into a written definitive agreement for a Parent Superior Offer, if Parent has complied with its obligations under Section 5.3(d); provided, however, that any such purported termination by Parent pursuant to this Section 7.1(j) shall be void and of no force or effect unless Parent pays to the Company Parent Termination Fee in accordance with Section 7.2;
(k) by Parent, if there has been a Company Change of Recommendation; or
(l) by the Company, if there has been a Parent Change of Recommendation. In the event of termination of this Agreement pursuant to this Section 7.1, this Agreement shall terminate (except for the provisions of Sections 7.2----------- forthwith become void, 8.2, 8.4, 8.5 and 8.6), and there shall be no other liability on the part of Parent Acquiror, Sub or the Company Target or any of their respective officers or directors to the other except under such provisions, or for liability arising out of fraud or intentional or material breach of this Agreement or as provided for in the Confidentiality Agreement, in which case the aggrieved party shall be entitled to and all rights and remedies available at law obligations of any party hereto shall cease, except that nothing herein shall relieve any party from liability for any misrepresentation or in equitybreach of any covenant or agreement under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Kbii Holdings Inc)