Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 (other than pursuant to Section 9.1(a)) shall give notice of such termination to the other party or parties hereto, as the case may be: (a) by mutual written agreement of Parent and the Company; or (b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or (c) by either Parent or the Company, if the Offer shall not have been consummated on or before April 30, 2007 (the “Initial Termination Date”); provided, however, that in the event a condition to the Offer set forth in clause (A) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of ten (10) business days following satisfaction of the Unsatisfied Condition or July 31, 2007 (the “Extended Termination Date”); and provided further, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date, as applicable or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or (d) by the Company: (i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day period); or (ii) 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 or violation by the Company or any its Subsidiaries of the terms of Section 7.1 or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposal, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), and (F) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposal; or (e) by Parent: (i) in the event (A) of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period); (ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or (iii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (C) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (D) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (F) an Acquisition Proposal (whether or not a Superior Proposal) shall have been published or delivered to the Company Stockholders (and not withdrawn) by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal is first published or delivered to the Company Stockholders, the Company shall not have published or delivered to the Company Stockholders, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company Stockholders reject such Acquisition Proposal and not tender any Company Shares into such Acquisition Proposal if made in the form of a tender or exchange offer.
Appears in 2 contracts
Samples: Merger Agreement (Polycom Inc), Merger Agreement (Spectralink Corp)
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment TimeTime in accordance with this Article VII, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 7.1 (other than pursuant to Section 9.1(a)7.1(a) hereof) shall give written notice of such termination to the other party or parties hereto, as the case may be:
(a) by mutual written agreement consent of Parent and the Company; or, by action of their respective boards of directors;
(b) by either the Company or Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any shares of Company Shares Common Stock pursuant to the OfferOffer on or before March 31, 2008 (the “Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b7.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (iA) in any of the conditions to the Offer set forth in Annex A C hereto having failed to be satisfied on or before the Termination Date or (iiB) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any shares of Company Shares Common Stock pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent if:
(i) a Company Adverse Recommendation Change shall have occurred as permitted by Section 5.4;
(ii) the Company shall have entered into, or publicly announced its intention to enter into, a definitive agreement or an agreement in principle with respect to a Superior Proposal other than a confidentiality agreement permitted by Section 5.4(b);
(iii) the Company, if Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or failed to permit Parent and/or Merger Sub to include the Company Board Recommendation in the Offer shall not have been consummated on Documents;
(iv) a tender or before April 30, 2007 (exchange offer for the “Initial Termination Date”); provided, however, that in the event a condition to the Offer set forth in clause (A) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto Company Common Stock shall have been satisfied on or prior to the Initial Termination Date, either commenced (other than by Parent or an Affiliate of Parent) and the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of shall have not made within ten (10) business days following satisfaction of (for this purpose calculated in accordance with Section 14d-1(g)(3) under the Unsatisfied Condition Exchange Act) after such tender or July 31exchange offer is first published, 2007 (sent or given, pursuant to Rule 14e-2 promulgated under the “Extended Termination Date”); and provided furtherExchange Act, a statement disclosing that the right to terminate this Agreement pursuant to this Section 9.1(cCompany Board recommends rejection of such tender or exchange offer;
(v) shall not be available to a breach of any party hereto whose action representation or warranty or failure to fulfill perform any obligation under covenant or agreement on the part of the Company set forth in this Agreement has been the principal or any other event shall have occurred that (x) would cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed C not to be satisfied on and (y) is incapable of being cured by the Company or, if capable of being cured by the Company, the Company does not cure such breach, failure or before other event within 30 days after its receipt of written notice thereof from Parent; or
(vi) the Initial Termination Date Company or the Extended Termination Date, as applicable or (ii) in the expiration or termination any of the Offer (subject to its Representatives shall have willfully and materially breached any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreementits obligations under Section 5.4; or
(d) by the CompanyCompany if:
(i) immediately prior to entering into a definitive agreement with respect to a Superior Proposal, the Company Board authorizes the Company, subject to complying in all material respects with Section 5.4, to accept, or to enter into a written agreement for a transaction constituting, a Superior Proposal; provided that the event Company shall have paid or caused to be paid any amounts due pursuant to Section 7.3 in accordance with the terms specified therein concurrently with such termination; provided, further, that (Ax) the Company notifies Parent, in writing and at least three (3) Business Days prior to such termination, of its intention to terminate this Agreement to accept (or to enter into a binding written agreement for an Acquisition Proposal that constitutes) a Superior Proposal, attaching the most current and complete version of such agreement and all exhibits and other attachments thereto, and (y) Parent does not make prior to such termination a binding, unconditional offer that the Company Board determines in good faith, after consultation with its financial advisors, is at least as favorable to the stockholders of the Company as such Superior Proposal, it being understood that the Company shall not enter into any such binding agreement during such three (3) Business Day period; or
(ii) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or shall have occurred that (Bx) that any of would cause the representations and warranties of Parent and Merger Sub conditions set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would Annex C not to be reasonably likely to prevent, Parent satisfied and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach (y) is incapable of being cured by Parent or Merger Sub or, if capable of being cured by Parent or such inaccuracies in the representations and warranties of Merger Sub, Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall does not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i) if such breach or inaccuracy by Parent or Merger Sub is cured failure within such thirty (30) calendar day period); or
(ii) 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 or violation by the Company or any 30 days after its Subsidiaries of the terms of Section 7.1 or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposal, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), and (F) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposal; or
(e) by Parent:
(i) in the event (A) of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery receipt of written notice thereof from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period);
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (C) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (D) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (F) an Acquisition Proposal (whether or not a Superior Proposal) shall have been published or delivered to the Company Stockholders (and not withdrawn) by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal is first published or delivered to the Company Stockholders, the Company shall not have published or delivered to the Company Stockholders, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company Stockholders reject such Acquisition Proposal and not tender any Company Shares into such Acquisition Proposal if made in the form of a tender or exchange offerCompany.
Appears in 2 contracts
Samples: Merger Agreement (Applix Inc /Ma/), Merger Agreement (Cognos Inc)
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 8.1 (other than pursuant to Section 9.1(a)8.1(a) hereof) shall give notice of such termination to the other party or parties hereto, as the case may be:
(a) by mutual written agreement of Parent and the Company; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have been consummated on or before April 30September 21, 2007 2002 (the “Initial Termination Date”); provided, however, that in the event a that the condition to the Offer set forth in clause (Ai) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of ten (10) business days following satisfaction of the Unsatisfied Condition or July 31December 21, 2007 2002 (the “Extended Termination Date”); and provided further, that the right to terminate this Agreement pursuant to this Section 9.1(c8.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date, as applicable or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offerapplicable, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(dc) by the Company:
(i) , in the event (Ai) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement Agreement, or (Bii) that any of the representations and warranties of Parent and Merger Sub set forth in this the Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, prevent Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of its commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i8.1(c) until the earlier to occur of (1A) the expiration of a thirty fifteen (3015) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable applicable, or (2B) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i8.1(c) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty fifteen (3015) calendar day period); or
(ii) 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 or violation by the Company or any its Subsidiaries of the terms of Section 7.1 or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposal, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), and (F) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposal; or
(ed) by Parent:
(i) in the event (A) of a material breach of any covenant or agreement on the part of the Company set forth in this Agreement Agreement, or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions condition to the Offer set forth in clauses (C)(1v)(f) or (C)(2v)(g) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of its commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i8.1(d)(i) until the earlier to occur of (1A) the expiration of a thirty fifteen (3015) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2B) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i8.1(d)(i) if such breach or inaccuracy by the Company is cured within such thirty fifteen (3015) calendar day period);
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect in respect of the Company (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); orprovided, however, that notwithstanding the foregoing, in the event that the Material Adverse Effect on the Company is curable by the Company through the exercise of its commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 8.1(d)(ii) until the earlier to occur of (A) the expiration of a fifteen (15) calendar day period after delivery of written notice from Parent to the Company of such Material Adverse Effect on the Company, or (B) the ceasing by the Company to exercise commercially reasonable efforts to cure such Material Adverse Effect on the Company, provided that the Company continues to exercise commercially reasonable efforts to cure such Material Adverse Effect on the Company (it being understood that Parent may not terminate this Agreement pursuant to this Section 8.1(d)(ii) if such Material Adverse Effect on the Company is cured within such fifteen (15) calendar day period);
(iii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected withheld or withdrawn, or shall have for any reason amended or modified in a Company Board Recommendation Changemanner adverse to Parent, its recommendation in favor of the Offer or the adoption of this Agreement in accordance with Delaware Law (the “Recommendations”); (CB) the Company shall have failed to include the Company Board Recommendation Recommendations in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation inclusion of the Recommendations in the Offer Documents; (C) the Company shall have breached the provisions of Section 6.1 hereof in any material respect; (D) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders Company’s stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal)Transaction; (E) the Company shall have entered into a letter of intent, memorandum of understanding intent or similar Contract (other than a confidentiality agreement contemplated by Section 7.1(b)6.1 hereof) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) ; or (F) an Acquisition Proposal (whether or not a Superior Proposal) shall have been published or delivered to the Company Stockholders (made and not withdrawn) withdrawn by a Person unaffiliated with Parent andParent, and within ten (10) Business Days business days after notice of such Acquisition Proposal is first published published, sent or delivered given to the Company StockholdersCompany’s stockholders, the Company shall not have published or delivered sent to the Company Stockholders, its stockholders pursuant to Rule 14e-2 under the Exchange Act, Act a statement unconditionally reaffirming the Company Board Recommendation Recommendations and unconditionally recommending that the Company Stockholders Company’ stockholders reject such Acquisition Proposal and not tender any Company Shares into such Acquisition Proposal if made Proposal; or
(iv) in the form event that (A) Phoenix Technologies shall have breached the terms of the Tender and Voting Agreement between Phoenix Technologies and Parent in any material respect, or (B) the Termination and Amendment Agreement shall not be in full force and effect as a tender or exchange offerresult of any action taken by Phoenix Technologies.
Appears in 2 contracts
Samples: Merger Agreement (Insilicon Corp), Merger Agreement (Synopsys Inc)
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 (other than pursuant to Section 9.1(a)) hereof) shall give notice of such termination to the other party or parties hereto, as the case may be:
(a) by mutual written agreement of Parent and the Company; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have been consummated on or before April 30March 13, 2007 2011 (the “Initial Termination Date”); provided, however, that in the event a condition to the Offer set forth in clause (A) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of ten (10) business days following satisfaction of the Unsatisfied Condition or July 31June 13, 2007 2011 (the “Extended Termination Date”); and provided further, that the right to terminate this Agreement pursuant to this Section 9.1(c9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date, as applicable applicable, or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(dc) by the Company:
(i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, prevent Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i9.1(c)(i) until the earlier to occur of (1) (x) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has not been satisfied, the Initial Termination Date or Extended Termination Date, as applicable or (y) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has been satisfied, the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable inaccuracy or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i9.1(c)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day the applicable time period); or
(ii) 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 or violation by the Company or any its Subsidiaries of has not breached the terms of Section 7.1 7.1(a), (b) or (c) (other than breaches that are unintentional and not material in effect) or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposalhereof, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such to consummate a transaction that constitutes a Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends immediately prior to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), ) hereof and (FD) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposal; or
(ed) by Parent:
(i) in the event (A) of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i9.1(d)(i) until the earlier to occur of (1) (x) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has not been satisfied, the Initial Termination Date or Extended Termination Date, as applicable or (y) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has been satisfied, the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i9.1(d)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day the applicable time period);
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iiiii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (CB) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (DC) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (FD) an Acquisition Proposal (whether or not a Superior Proposal) Transaction Tender Offer shall have been published or delivered to the Company Stockholders (and not withdrawn) made by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal Transaction Tender Offer is first published published, sent or delivered given to the Company Stockholders, the Company shall not have published or delivered to the Company Stockholdersmade, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company Stockholders reject such Acquisition Proposal Transaction Tender Offer and not tender any Company Shares into such Acquisition Proposal if made in the form of a tender or exchange offerTransaction Tender Offer.
Appears in 2 contracts
Samples: Merger Agreement (Hewlett Packard Co), Merger Agreement (ArcSight Inc)
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 (other than pursuant to Section 9.1(a)) hereof) shall give notice of such termination to the other party or parties hereto, as the case may be:
(a) by mutual written agreement of Parent and the Company; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have expired or been consummated terminated in accordance with the terms hereof and neither Merger Sub or Parent on Merger Sub’s behalf shall have accepted for payment any Company Shares pursuant to the Offer on or before April 30October 31, 2007 2006 (the “Initial Termination Date”); provided, however, that in the event a condition to the Offer set forth in clause (A) or clause (C)(8) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of ten (10) business days following satisfaction of the Unsatisfied Condition or July March 31, 2007 following the date of commencement of the Offer (the “Extended Termination Date”); and provided provided, further, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date, as applicable applicable, or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(d) by the Company:
(i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, prevent Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day period); or
(ii) 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 or violation by of the terms of Section 7.1 hereof, (B) the Company has not breached or any its Subsidiaries of violated the terms of Section 7.1 or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) hereof in connection with such Superior ProposalProposal (or any Acquisition Proposal that was a precursor thereto), (BC) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change in response to such Superior Proposal and authorized the Company to enter into a such definitive agreement in connection with for such Superior ProposalProposal (which authorization may be subject to termination of this Agreement), (CD) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends to enter into a such definitive agreement with respect to for such Superior Proposal, which notice shall include the most current version of such definitive agreement, agreement and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (DE) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b)) hereof, a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor a financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (EF) concurrently with immediately prior to the termination of this Agreement, the Company pays to Parent the Termination Fee Amount payable pursuant to Section 9.4(b)(iii)) hereof, and (FG) immediately following such terminationthe termination of this Agreement, the Company enters into a such definitive agreement to effect such Superior Proposal; or
(e) by Parent:
(i) in the event (A) of a material breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period);
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iiiii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: :
(A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.27.2 hereof (for purposes of this clause (A), disregarding any qualifiers with respect to “materiality” set forth in Section 7.1 or Section 7.2 hereof);
(B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; ;
(C) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; ;
(D) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); or
(E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (F) an Acquisition Proposal (whether or not a Superior Proposal) shall have been published published, sent or delivered given to the Company Stockholders (and not withdrawn) by a Person unaffiliated with Parent and, promptly (and in any event within ten (10) Business Days after notice of such Acquisition Proposal is first published or delivered to the Company StockholdersDays) following a request by Parent, the Company shall not have published made or delivered sent to the Company StockholdersStockholders (in Parent’s discretion), pursuant to Rule 14e-2 under the Exchange ActAct or otherwise, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company Stockholders reject such Acquisition Proposal and not tender any Company Shares into such Acquisition Proposal if made in the form of a tender or exchange offer.
Appears in 1 contract
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 8.1 (other than pursuant to Section 9.1(a8.1(a)) shall give notice of such termination to the other party or parties hereto, only as the case may befollows:
(a) by mutual written agreement of Parent and the Company; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b8.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have expired or been consummated terminated in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer on or before April 30July 31, 2007 2008 (the “Initial Termination Date”); provided, however, that (i) in the event a condition to the Offer set forth in clause (AA)(1) of the first paragraph or (A)(2) of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and as it may be extended pursuant hereto), but all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination DateDate (as it may be extended pursuant hereto), either Parent or the Company may elect to extend the Initial Termination DateDate (as it may be extended pursuant hereto), by written notice to the other party prior to or on the Initial Termination DateDate (as it may be extended pursuant hereto) for thirty (30) calendar days; provided, until however, that the earlier of ten termination date may not be extended for more than three 30-day periods in the aggregate, and (10ii) business days following satisfaction of the Unsatisfied Condition or July 31, 2007 (the “Extended Termination Date”); and provided further, that the right to terminate this Agreement pursuant to this Section 9.1(c8.1(c) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (iA) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date(as it may be extended pursuant hereto), as applicable or (iiB) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(d) by either Parent or the Company if any Governmental Authority of competent jurisdiction shall have issued or granted any Order that is in effect and has the effect of making any of the transactions contemplated hereby (including the Offer and the Merger) illegal in any jurisdiction, or which has the effect of prohibiting or otherwise preventing the consummation of any of the transactions contemplated by the Agreement (including the Offer and the Merger) in any jurisdiction, and such Order has become final and non-appealable; or
(e) by the Company:
(i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, prevent Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i8.1(e)(i) until the earlier to occur of (1) the expiration of a thirty fifteen (3015) calendar day period days after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues and continuing not to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i8.1(e)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty fifteen (3015) calendar day period); or
(ii) 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 or violation by the Company or any and its Subsidiaries of the terms of Section 7.1 have not breached or Section 7.2 violated (or because of actions taken by any Company Representative, be deemed, pursuant to the terms thereof, to have breached or violated such termsviolated) in connection with such Superior Proposalthe terms of Section 6.1 or Section 6.2, (B) subject to the terms of this Agreement, including Section 6.2(b), the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such for a transaction that constitutes a Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes immediately prior and as a Superior Proposal and intends condition to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this AgreementAgreement pursuant to this Section 8.1(e)(ii), the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), 8.4(b)(ii) and (FD) immediately following such termination, the Company enters into a such definitive agreement to effect such Superior Proposalagreement; or
(ef) by Parent:
(i) in the event (A) of a material breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i8.1(f)(i) until the earlier to occur of (1) the expiration of a thirty fifteen (3015) calendar day days period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the Company ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues and continuing not to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i8.1(f)(i) if such breach or inaccuracy by the Company is cured within such thirty fifteen (3015) calendar day period);; or
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached the provisions of Section 6.1 or Section 6.2 (or because of actions taken by any Company Representative, be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2(without regard to whether such breach results in an Acquisition Proposal), (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change, whether pursuant to or in breach of this Agreement; (C) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (D) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b6.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (F) an Acquisition Proposal (whether or not a Superior Proposal) shall have been published or delivered to the Company Stockholders (and not withdrawn) made by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal is first published published, sent or delivered given to the Company Stockholders, the Company shall not have published or delivered sent to the Company Stockholders, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company Stockholders reject such Acquisition Proposal and not tender any Company Shares into such Acquisition Proposal if made in the form of a tender or exchange offer.
Appears in 1 contract
Samples: Merger Agreement (Autodesk Inc)
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 (other than pursuant to Section 9.1(a)) hereof) shall give notice of such termination to the other party or parties hereto, as the case may be:
(a) by mutual written agreement of Parent and the Company; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s 's behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s 's behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have expired or been consummated terminated in accordance with the terms hereof and neither Merger Sub or Parent on Merger Sub's behalf shall have accepted for payment any Company Shares pursuant to the Offer on or before April 30October 31, 2007 2006 (the “"Initial Termination Date”"); provided, however, that in the event a condition to the Offer set forth in clause (A) or clause (C)(8) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of ten (10) business days following satisfaction of the Unsatisfied Condition or July March 31, 2007 following the date of commencement of the Offer (the “"Extended Termination Date”"); and provided provided, further, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date, as applicable applicable, or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s 's behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(d) by the Company:
(i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day period); or
(ii) 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 or violation by the Company or any its Subsidiaries of the terms of Section 7.1 or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposal, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), and (F) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposal; or
(e) by Parent:
(i) in the event (A) of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period);
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (C) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (D) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (F) an Acquisition Proposal (whether or not a Superior Proposal) shall have been published or delivered to the Company Stockholders (and not withdrawn) by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal is first published or delivered to the Company Stockholders, the Company shall not have published or delivered to the Company Stockholders, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company Stockholders reject such Acquisition Proposal and not tender any Company Shares into such Acquisition Proposal if made in the form of a tender or exchange offer.
Appears in 1 contract
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 8.1 (other than pursuant to Section 9.1(a8.1(a)) shall give notice of such termination to the other party or parties hereto, only as the case may befollows:
(a) by mutual written agreement of Parent and the Company; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b8.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have expired or been consummated terminated in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer on or before April 30July 31, 2007 2008 (the “Initial Termination Date”); provided, however, that (i) in the event a condition to the Offer set forth in clause (AA)(1) of the first paragraph or (A)(2) of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and as it may be extended pursuant hereto), but all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination DateDate (as it may be extended pursuant hereto), either Parent or the Company may elect to extend the Initial Termination DateDate (as it may be extended pursuant hereto), by written notice to the other party prior to or on the Initial Termination DateDate (as it may be extended pursuant hereto) for thirty (30) calendar days; provided, until however, that the earlier of ten termination date may not be extended for more than three 30-day periods in the aggregate, and (10ii) business days following satisfaction of the Unsatisfied Condition or July 31, 2007 (the “Extended Termination Date”); and provided further, that the right to terminate this Agreement pursuant to this Section 9.1(c8.1(c) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (iA) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date(as it may be extended pursuant hereto), as applicable or (iiB) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(d) by the Company:
(i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day period); or
(ii) 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 or violation by the Company or any its Subsidiaries of the terms of Section 7.1 or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposal, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), and (F) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposal; or
(e) by Parent:
(i) in the event (A) of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period);
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (C) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (D) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (F) an Acquisition Proposal (whether or not a Superior Proposal) shall have been published or delivered to the Company Stockholders (and not withdrawn) by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal is first published or delivered to the Company Stockholders, the Company shall not have published or delivered to the Company Stockholders, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company Stockholders reject such Acquisition Proposal and not tender any Company Shares into such Acquisition Proposal if made in the form of a tender or exchange offer.
Appears in 1 contract
Samples: Merger Agreement (Moldflow Corp)
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that the party desiring to terminate this Agreement pursuant to this Section 9.1 (other than pursuant to Section 9.1(a)) hereof) shall give notice of such termination to the other party or parties hereto, as the case may be:
(a) by mutual written agreement of Parent and the Company; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have expired or been consummated terminated in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer on or before April 30July 26, 2007 2006 (the “Initial Termination Date”); provided, however, that in the event a condition to the Offer set forth in clause (A) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of ten (10) business days following satisfaction of the Unsatisfied Condition or July 31, 2007 (the “Extended Termination Date”); and provided further, that the right to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date, as applicable or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(d) by the Company:
(i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, prevent Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day period); or
(ii) 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 or violation by the Company or any its Subsidiaries of the terms of Section 7.1 or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposal, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such for a transaction that constitutes a Superior Proposal, (CB) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal that constitutes a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, agreement and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (DC) Parent shall not have made, within the five three (53) Business Day period contemplated by Section 7.2(b)Days after receipt of such notice with respect to such Superior Proposal, a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor a financial advisor of nationally recognized standing and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, Proposal and (ED) concurrently with immediately prior to the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), and (F) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposalhereof; or
(e) by Parent:
(i) in the event (A) of a material breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses paragraph (C)(15) or (C)(26) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i9.1(e)
(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period);
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iiiii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (C) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (DB) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); , (EC) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) hereof) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (FD) an Acquisition Proposal (whether a tender offer or not a Superior Proposal) exchange offer for outstanding Company Shares shall have been published commenced (other than by Parent or delivered to the Company Stockholders (an Affiliate of Parent) and not withdrawn) by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal is first published or delivered to the Company Stockholders, the Company shall not have published or delivered to the Company Stockholders, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending recommends that the stockholders of the Company Stockholders reject tender their shares in such Acquisition Proposal and not tender any Company Shares into or exchange offer or, within 10 business days after the commencement of such Acquisition Proposal if made in the form of a tender or exchange offer, the Company Board fails to recommend against acceptance of such offer.
Appears in 1 contract
Termination Prior to Appointment Time. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Appointment Time, provided that provided, that, the party desiring to terminate this Agreement pursuant to this Section 9.1 (other than pursuant to Section 9.1(a)) hereof) shall give notice of such termination to the other party or parties hereto, as the case may be:
(a) by the mutual written agreement consent of Parent the Company and Parent, which consent shall have been approved by the Companyaction of the Company Board and Parent’s board of directors, respectively; or
(b) by either Parent or the Company, if the Offer shall have expired or been terminated in accordance with the terms hereof (subject to any required extensions of the Offer pursuant to the terms hereof) without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 9.1(b) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement has been the principal cause of or resulted (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(c) by either Parent or the Company, if the Offer shall not have been consummated on or before April 30September 12, 2007 2012 (the “Initial Termination Date”); provided, however, that in the event a condition to the Offer set forth in clause (A) of the first paragraph of Annex A hereto shall not have been satisfied on or prior to the Initial Termination Date (the “Unsatisfied Condition”) and all of the other conditions to the Offer set forth on Annex A hereto shall have been satisfied on or prior to the Initial Termination Date, either Parent or the Company may elect to extend the Initial Termination Date, by written notice to the other prior to or on the Initial Termination Date, until the earlier of ten (10) business days following satisfaction of the Unsatisfied Condition or July 31December 12, 2007 2012 (the “Extended Termination Date”); and provided further, that the right to terminate this Agreement pursuant to under this Section 9.1(c9.1(b) shall not be available to any party hereto whose action or failure to fulfill breach of any obligation under this Agreement has been the principal cause of or resulted in (i) in any of the conditions to the Offer set forth in Annex A hereto having failed to be satisfied on or before the Initial Termination Date or the Extended Termination Date, as applicable applicable, or (ii) in the expiration or termination of the Offer (subject to any required extensions of the Offer pursuant to the terms hereof) in accordance with the terms hereof without Merger Sub (or Parent on Merger Sub’s behalf) having accepted for payment any Company Shares pursuant to the Offer, and in either such case, such action or failure to act constitutes a material breach of this Agreement; or
(dc) by the Company:
(i) in the event (A) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (B) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case so as would prevent, or would be reasonably likely to prevent, prevent Parent and Merger Sub from consummating the Offer in accordance with the terms hereof; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(d)(i9.1(c)(i) until the earlier to occur of (1) (x) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has not been satisfied, the Initial Termination Date or Extended Termination Date, as applicable, or (y) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has been satisfied, the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable inaccuracy or (2) Parent or Merger Sub ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent or Merger Sub continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d)(i9.1(c)(i) if such breach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day the applicable time period); or
(ii) immediately prior to entering into a definitive agreement Acquisition Agreement with respect to a Superior Proposal; provided, provided that (A) the Company received such Superior Proposal other than as a result of a breach or violation by the Company or has not intentionally breached in any its Subsidiaries of material respect the terms of Section 7.1 7.1(a), Section 7.1(b) or Section 7.2 (or be deemed, pursuant to the terms thereof, to have breached or violated such terms) in connection with such Superior Proposal7.2, (B) subject to the terms of this Agreement, the Company Board has effected a Company Board Recommendation Change and authorized the Company to enter into a definitive agreement in connection with such Superior Proposal, (C) the Company has notified Parent in writing that the Company Board has received an Acquisition Proposal Agreement to consummate a transaction that constitutes a Superior Proposal and intends to enter into a definitive agreement with respect to such Superior Proposal, which notice shall include the most current version of such definitive agreement, and the identity of the Person making such Superior Proposal, all with the purpose and intent of enabling Parent and the Company (C) immediately prior to discuss in good faith a modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected, (D) Parent shall not have made, within the five (5) Business Day period contemplated by Section 7.2(b), a counter-offer or proposal that the Company Board reasonably determines in good faith, after consultation with an Authorized Financial Advisor and its outside legal counsel, is at least as favorable to the Company Stockholders as such Superior Proposal, (E) concurrently with the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to Section 9.4(b)(iii), and (F9.4(b) immediately following such termination, the Company enters into a definitive agreement to effect such Superior Proposalhereof; or
(ed) by Parent:
(i) in the event (A) of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case such that the conditions to the Offer set forth in clauses (C)(1) or (C)(2) of the first paragraph of Annex A hereto, respectively, would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e)(i9.1(d)(i) until the earlier to occur of (1) (x) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has not been satisfied, the Initial Termination Date or Extended Termination Date, as applicable, or (y) if the condition set forth in clause (A) of the first paragraph of Annex A hereto has been satisfied, the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e)(i9.1(d)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day the applicable time period);; or
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred and be continuing a Company Material Adverse Effect (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iii) in the event that a Triggering Event shall have occurred. For all purposes of and under this Agreement, a “Triggering Event” shall be deemed to have occurred if, prior to the Effective Appointment Time, any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms thereof, to have breached) in any material respect the provisions of Section 7.1 or Section 7.2, (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change; (CB) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9 or to permit Parent to include the Company Board Recommendation in the Offer Documents; (DC) the Company Board or any committee thereof shall have for any reason approved, or recommended that the Company Stockholders Shareholders approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1(b)) accepting or agreeing to discuss or negotiate any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal) or (FD) an Acquisition Proposal (whether or not a Superior Proposal) Transaction Tender Offer shall have been published or delivered to the Company Stockholders (and not withdrawn) made by a Person unaffiliated with Parent and, within ten (10) Business Days after notice of such Acquisition Proposal Transaction Tender Offer is first published published, sent or delivered given to the Company StockholdersShareholders, the Company shall not have published or delivered to the Company Stockholdersmade, pursuant to Rule 14e-2 under the Exchange Act, a statement unconditionally reaffirming the Company Board Recommendation and unconditionally recommending (provided, that, in such case, such statement may also include, at the sole discretion of the Company, a “stop-look-and-listen” communication to the Company Shareholders pursuant to Section 14d-9(f) promulgated under the Exchange Act (or any similar communications to the Company Shareholders), notwithstanding the fact that the Company Stockholders reject inclusion of such Acquisition Proposal and reaffirmation statement is not tender any Company Shares into explicitly permitted by Section 14d-9(f)). The party desiring to terminate this Agreement pursuant to subsection (b), (c) or (d) of this Section 9.1 shall give written notice of such Acquisition Proposal if made termination to the other party in accordance with Section 10.2, specifying the form of a tender provision or exchange offerprovisions hereof pursuant to which such termination is effected.
Appears in 1 contract
Samples: Merger Agreement (Sonosite Inc)
