Termination Prior to the Closing. (a) Notwithstanding anything herein to the contrary, this Agreement may be terminated, and the Transaction abandoned: (i) at any time before the Closing, by mutual consent of Buyer and ISA without penalty or payment; (ii) at any time before the Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event of material breach of this Agreement by the non‑terminating Party, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging breach, provided that the terminating Party shall not itself be in material breach of its representations, warranties, covenants or obligations hereunder; (iii) by Buyer, on the one hand, or ISA, on the other hand, if the Closing shall not have taken place on or before the Closing Date Deadline, provided that the terminating Party shall not be in material breach of its representations, warranties, covenants or obligations under this Agreement; provided, however, that if all conditions to Closing other than the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to be satisfied as of the Closing Date Deadline, then ISA (if Section 6.05 has not been satisfied) or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party; or (iv) at any time before the Closing, by Sellers, pursuant to a Board Termination. (b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. (c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterly.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Industrial Services of America Inc), Asset Purchase Agreement (Industrial Services of America Inc)
Termination Prior to the Closing. This Agreement may be terminated at any time prior to the Closing as set forth below:
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated, and the Transaction abandoned:
(i) at any time before the Closing, by mutual written consent of Buyer and ISA without penalty or paymentthe Company;
(ii) at any time before the Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event of material breach of this Agreement by the non‑terminating Party, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging breach, provided that the terminating Party shall not itself be in material breach of its representations, warranties, covenants or obligations hereunder;
(iiib) by Buyer, on either the one hand, Company or ISA, on the other hand, Buyer if the Closing shall not have taken place been consummated by the date that is nine (9) months following the date of this Agreement (the “End Date”); provided, that the right to terminate this Agreement under this Section 11.1(b) shall not be available to any party whose action or failure to act has been a principal cause of, or resulted in the failure of, the Closing to occur on or before the Closing Date Deadline, provided that the terminating Party shall not be in material such date and such action or failure to act constitutes a breach of its representations, warranties, covenants or obligations under this Agreement; provided;
(c) by either the Company or Buyer, howeverif a Governmental Authority shall have issued or enacted any Legal Requirement or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing, which Legal Requirement is final and nonappealable, as applicable;
(d) by the Company, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by Buyer or Sangoma, such that if all conditions to Closing other than the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to 9.1 would not be satisfied as of the Closing time of such breach; provided, that if such breach by Buyer or Sangoma is curable prior to the End Date Deadlinethrough the exercise of reasonable efforts, then ISA the Company may not terminate this Agreement under this Section 11.1(d) prior to twenty (20) days following the receipt by Bxxxx of written notice from the Company to Buyer of such breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 11.1(d) if (i) such breach by Buyer or Sangoma is cured such that such conditions would then be satisfied or (ii) the Company or any Seller is in breach of this Agreement such that the conditions set forth in Section 6.05 has 8.1 would not been be satisfied);
(e) by Buyer, upon a breach of any representation, warranty, covenant or Buyer (agreement set forth in this Agreement by the Company or any Seller, such that the conditions set forth in Section 8.1 would not be satisfied as of the time of such breach; provided, that if Section 7.05 has not been satisfied) may extend such breach by the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) Company or Sellers, as applicable, is curable prior to the other PartyEnd Date through the exercise of reasonable efforts, then Buyer may not terminate this Agreement under this Section 11.1(c) prior to twenty (20) days following the receipt by the Company of written notice from Buyer to the Company of such breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 11.1(e) if (i) such breach by the Company or Sellers is cured such that such conditions would then be satisfied, or (ii) Buyer or Sangoma is in breach of this Agreement such that the conditions set forth in Section 9.1 would not be satisfied); or
(ivf) at any time before by the ClosingCompany, by Sellers, pursuant to a Board Termination.
(b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on Buyer or Sangoma if the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination Sangoma Shareholder Approval or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee TSX-V Approval is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterlyobtained.
Appears in 1 contract
Samples: Stock Purchase Agreement (Sangoma Technologies Corp)
Termination Prior to the Closing. (a) Notwithstanding anything herein 14.1 This Agreement shall terminate and be of no further force or effect between the parties hereto except as to liability for breach or default of any covenant, agreement, representation, warranty, duty or obligation occurring or arising prior to the contrarydate of termination, this Agreement may be terminatedupon the occurrence of any of the following:
14.1.1 Immediately prior to Closing, the Purchaser has given notice to ZiaSun of the material breach or default by AIS or ZiaSun in the performance of any covenant, agreement, representation, warranty, duty or obligation hereunder, and the Transaction abandoned:
(i) at any time before the provided that no such termination shall be effective if, prior to Closing, by mutual consent the breaching party shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of Buyer and ISA without penalty or payment;termination.
(ii) at any time before the 14.1.2 Immediately prior to Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event ZiaSun has given notice to Purchaser of material breach or default in the performance of any covenant, agreement, representation, warranty, duty or obligation of Purchaser hereunder, and provided that no such termination shall be effective, if prior to Closing the Purchaser shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of termination.
14.2 Notwithstanding anything to the contrary contained herein, no party hereto shall have the right to terminate this Agreement due to its own breach or because of any immaterial breach by any other party hereto or any covenant, agreement, representation, warranty, duty or obligation hereunder.
14.3 No termination of this Agreement by the non‑terminating Partyfor any reason or in any manner shall release, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging or be construed as so releasing, any party hereto from any liability or damage to any other party hereto arising out of, in connection with or otherwise relating to, directly to, directly or indirectly, said party's breach, provided that the terminating Party shall not itself be default, or failure in material breach performance of any of its representationscovenants, warrantiesagreements, covenants duties or obligations arising hereunder;
(iii) by Buyer, on the one hand, or ISA, on the other hand, if the Closing shall not have taken place on or before the Closing Date Deadline, provided that the terminating Party shall not be in material breach of its representations, warranties, covenants or obligations under this Agreement; provided, however, that if all conditions to Closing other than the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to be satisfied as of the Closing Date Deadline, then ISA (if Section 6.05 has not been satisfied) or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party; or
(iv) at any time before the Closing, by Sellers, pursuant to a Board Termination.
(b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part misrepresentations of any Party (representations or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equitywarranty herein contained.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterly.
Appears in 1 contract
Termination Prior to the Closing. (a) Notwithstanding anything herein 14.1 This Agreement shall terminate and be of no further force or effect between the parties hereto except as to liability for breach or default of any covenant, agreement, representation, warranty, duty or obligation occurring or arising prior to the contrarydate of termination, this Agreement may be terminatedupon the occurrence of any of the following:
14.1.1 Immediately prior to Closing, the Purchaser has given notice to ZiaSun of the material breach or default by MAI or ZiaSun in the performance of any covenant, agreement, representation, warranty, duty or obligation hereunder, and the Transaction abandoned:
(i) at any time before the provided that no such termination shall be effective if, prior to Closing, by mutual consent the breaching party shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of Buyer and ISA without penalty or payment;termination.
(ii) at any time before the 14.1.2 Immediately prior to Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event ZiaSun has given notice to Purchaser of material breach or default in the performance of any covenant, agreement, representation, warranty, duty or obligation of Purchaser hereunder, and provided that no such termination shall be effective, if prior to Closing the Purchaser shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of termination.
14.2 Notwithstanding anything to the contrary contained herein, no party hereto shall have the right to terminate this Agreement due to its own breach or because of any immaterial breach by any other party hereto or any covenant, agreement, representation, warranty, duty or obligation hereunder.
14.3 No termination of this Agreement by the non‑terminating Partyfor any reason or in any manner shall release, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging or be construed as so releasing, any party hereto from any liability or damage to any other party hereto arising out of, in connection with or otherwise relating to, directly to, directly or indirectly, said party's breach, provided that the terminating Party shall not itself be default, or failure in material breach performance of any of its representationscovenants, warrantiesagreements, covenants duties or obligations arising hereunder;
(iii) by Buyer, on the one hand, or ISA, on the other hand, if the Closing shall not have taken place on or before the Closing Date Deadline, provided that the terminating Party shall not be in material breach of its representations, warranties, covenants or obligations under this Agreement; provided, however, that if all conditions to Closing other than the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to be satisfied as of the Closing Date Deadline, then ISA (if Section 6.05 has not been satisfied) or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party; or
(iv) at any time before the Closing, by Sellers, pursuant to a Board Termination.
(b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part misrepresentations of any Party (representations or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equitywarranty herein contained.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterly.
Appears in 1 contract
Termination Prior to the Closing. (a) Notwithstanding anything herein to the contrary, this This Agreement may be terminated, and the Transaction abandoned:
(i) terminated at any time before prior to the Closing, Closing as set forth below:by mutual written consent of Buyer and ISA without penalty or paymentSeller;
(a) (i) by Seller if Buyer has not confirmed in writing that it has not identified any material issues or concerns arising from the Open Diligence Matters by 5:00 PM ET on Monday, June 8, 2020 or (ii) at any time before the Closing, by Buyer, on the one hand, either Seller or ISA, on the other hand, in the event of material breach of this Agreement by the non‑terminating Party, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging breach, provided that the terminating Party shall not itself be in material breach of its representations, warranties, covenants or obligations hereunder;
(iii) by Buyer, on the one hand, or ISA, on the other hand, Buyer if the Closing shall not have taken place been consummated by June 19, 2020 (the “End Date”); provided, that the right to terminate this Agreement under this Section 8.1 shall not be available to (x) any party whose action or failure to act has been a principal cause of, or resulted in the failure of, the Closing to occur on or before the Closing Date Deadline, provided that the terminating Party shall not be in material such date and such action or failure to act constitutes a breach of its representations, warranties, covenants or obligations under this Agreement; provided, however, that if Agreement and (y) Buyer to the extent all conditions to Closing set forth in Section 6 other than those set forth in Section 6.2(g) have been satisfied;
(b) by either Seller or Buyer, if a Governmental Authority shall have issued or enacted any Legal Requirement or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing, which Legal Requirement is final and nonappealable, as applicable;
(c) by Seller, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by Buyer, such that the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to 6.3 would not be satisfied as of the Closing time of such breach; provided, that if such breach by Buyer is curable before the End Date Deadlinethrough the exercise of reasonable efforts, then ISA Seller may not terminate this Agreement under this Section 8.1(d) before the 20th day following the receipt of written notice from Seller to Buyer of such breach (it being understood that Seller may not terminate this Agreement pursuant to this Section 8.1(d) if (i) such breach by Buyer is cured such that such conditions would then be satisfied or (ii) Seller is in breach of this Agreement such that the conditions set forth in Section 6.05 has 6.2 would not been be satisfied) or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party); or
(ivd) at by Buyer, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by a Seller, such that the conditions set forth in Section 6.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue; provided, that if such breach is curable by Seller, as applicable, before the ClosingEnd Date through the exercise of reasonable efforts, by Sellers, then Buyer may not terminate this Agreement under this Section 8.1(e) before the 20th day following the receipt of written notice from Buyer to Seller of such breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 8.1(e) if (i) such breach by Seller is cured such that such conditions would then be satisfied or (ii) Buyer is in breach of this Agreement such that the conditions set forth in Section 6.3 would not be satisfied).; or
(e) by Buyer, if it notified Seller in writing pursuant to Section 6.2(f) that it has identified a Board Terminationmaterial issue or concern arising from the Open Diligence Matters, as a result of which it has decided not to consummate the transactions contemplated by this Agreement.
(bf) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of Notwithstanding any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part provision of this Agreement, and that without these agreements, the Parties would Buyer may not enter into terminate this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order Agreement based on a failure of Buyer to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterlyInsurance.
Appears in 1 contract
Samples: Securities Purchase Agreement (Circor International Inc)
Termination Prior to the Closing. This Agreement may be terminated at any time prior to the Closing as set forth below:
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated, and the Transaction abandoned:
(i) at any time before the Closing, by mutual written consent of Buyer and ISA without penalty or paymentthe Sellers;
(ii) at any time before the Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event of material breach of this Agreement by the non‑terminating Party, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging breach, provided that the terminating Party shall not itself be in material breach of its representations, warranties, covenants or obligations hereunder;
(iiib) by Buyer, on either the one hand, Sellers or ISA, on the other hand, Buyer if the Closing shall not have taken place been consummated by March 23, 2020 (the “End Date”); provided, that the right to terminate this Agreement under this Section 10.1 shall not be available to any party whose action or failure to act has been a principal cause of, or resulted in the failure of, the Closing to occur on or before the Closing Date Deadline, provided that the terminating Party shall not be in material such date and such action or failure to act constitutes a breach of its representations, warranties, covenants or obligations under this Agreement; provided;
(c) by either the Sellers or Buyer, howeverif a Governmental Authority shall have issued or enacted any Legal Requirement or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing, which Legal Requirement is final and nonappealable, as applicable;
(d) by the Sellers, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by Buyer, such that if all conditions to Closing other than the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to 8.1 would not be satisfied as of the Closing time of such breach; provided, that if such breach by Buyer is curable prior to the End Date Deadlinethrough the exercise of reasonable efforts, then ISA the Sellers may not terminate this Agreement under this Section 10.1(d) prior to 20 days following the receipt of written notice from the Sellers to Buyer of such breach (it being understood that the Sellers may not terminate this Agreement pursuant to this Section 10.1(d) if (i) such breach by Buyer is cured such that such conditions would then be satisfied or (ii) the Sellers are in breach of this Agreement such that the conditions set forth in Section 6.05 has 7.1 would not been be satisfied) or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party); or
(ive) at by Buyer, upon a breach of any time before representation, warranty, covenant or agreement set forth in this Agreement by the Closing, by Sellers, pursuant to a Board Termination.
(b) If this Agreement is validly terminated pursuant to such that the conditions set forth in Section 8.05(a)(i), this Agreement will 7.1 would not be null and void, and there will be no liability on the part satisfied as of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case such breach or as of the terminating Party time such representation or warranty shall have at its disposal all rights and remedies available to it at law or in equity.
(c) If this Agreement become untrue; provided, that if such breach is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing curable by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination FeeSellers, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on prior to the Board Termination Costs and/or the Board Termination Fee or portion thereof End Date through the date exercise of payment at reasonable efforts, then Buyer may not terminate this Agreement under this Section 10.1(e) prior to 20 days following the rate receipt of 8% per annum, compounded quarterlywritten notice from Buyer to the Sellers of such breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 10.1(e) if (i) such breach by the Sellers 62 is cured such that such conditions would then be satisfied or (ii) Buyer is in breach of this Agreement such that the conditions set forth in Section 8.1 would not be satisfied).
Appears in 1 contract
Samples: Securities Purchase Agreement (Circor International Inc)
Termination Prior to the Closing. (a) Notwithstanding anything herein 12.1 This Agreement shall terminate and be of no further force or effect between the parties hereto except as to liability for breach or default of any covenant, agreement, representation, warranty, duty or obligation occurring or arising prior to the contrarydate of termination, this Agreement may be terminatedupon the occurrence of any of the following:
12.1.1 Immediately prior to Closing, the Purchaser has given notice to ZiaSun of the material breach or default by ZiaSun in the performance of any covenant, agreement, representation, warranty, duty or obligation hereunder, and the Transaction abandoned:
(i) at any time before the provided that no such termination shall be effective if, prior to Closing, by mutual consent the breaching party shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of Buyer and ISA without penalty or payment;termination.
(ii) at any time before the 12.1.2 Immediately prior to Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event ZiaSun has given notice to Purchaser of material breach or default in the performance of any covenant, agreement, representation, warranty, duty or obligation of Purchaser hereunder, and provided that no such termination shall be effective, if prior to Closing the Purchaser shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of termination.
12.2 Notwithstanding anything to the contrary contained herein, no party hereto shall have the right to terminate this Agreement due to its own breach or because of any immaterial breach by any other party hereto or any covenant, agreement, representation, warranty, duty or obligation hereunder.
12.3 No termination of this Agreement by the non‑terminating Partyfor any reason or in any manner shall release, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging or be construed as so releasing, any party hereto from any liability or damage to any other party hereto arising out of, in connection with or otherwise relating to, directly to, directly or indirectly, said party's breach, provided that the terminating Party shall not itself be default, or failure in material breach performance of any of its representationscovenants, warrantiesagreements, covenants duties or obligations arising hereunder;
(iii) by Buyer, on the one hand, or ISA, on the other hand, if the Closing shall not have taken place on or before the Closing Date Deadline, provided that the terminating Party shall not be in material breach of its representations, warranties, covenants or obligations under this Agreement; provided, however, that if all conditions to Closing other than the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to be satisfied as of the Closing Date Deadline, then ISA (if Section 6.05 has not been satisfied) or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party; or
(iv) at any time before the Closing, by Sellers, pursuant to a Board Termination.
(b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part misrepresentations of any Party (representations or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equitywarranty herein contained.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterly.
Appears in 1 contract
Termination Prior to the Closing. This Agreement may be terminated at any time prior to the Closing as set forth below (with any termination by Seller Representative also being an effective termination by each Seller, Blocker and the Company):
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated, and the Transaction abandoned:
(i) at any time before the Closing, by mutual consent written agreement of Buyer and ISA without penalty or paymentthe Seller Representative;
(ii) at any time before the Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event of material breach of this Agreement by the non‑terminating Party, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging breach, provided that the terminating Party shall not itself be in material breach of its representations, warranties, covenants or obligations hereunder;
(iiib) by Buyer, on either the one hand, Seller Representative or ISA, on the other hand, Buyer if the Closing shall not have taken place been consummated by December 18, 2024 (the “End Date”); provided, that the right to terminate this Agreement under this Section 12.1(b) shall not be available to any Party (including, for purposes of the Seller Representative’s right to terminate this Agreement under this Section 12.1(b), the Company, Blocker or any Sellers) whose action or failure to act has been a principal cause of the failure of the Closing to occur on or before the Closing Date Deadlinesuch date, provided that the terminating Party shall not be in material and such action or failure to act constitutes a breach of its representations, warranties, covenants or obligations under this Agreement; provided, howeverfurther, that if all conditions to Closing other than of the conditions set forth in Section 6.05 or 8, Section 7.07 have been satisfied or 9 and Section 10 (other than those conditions that by their terms are able to be satisfied at the Closing) are satisfied or waived as of the Closing End Date Deadlinebut the three (3) Business Day period contemplated by Section 2.3(a) has not expired, the End Date shall automatically be extended to the Business Day following such three (3) Business Day period;
(c) by either the Seller Representative or Buyer, if a Governmental Authority shall have obtained an Order or issued or enacted any Law or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing, which Order or Law is final and nonappealable; provided that the right to terminate this Agreement under this Section 12.1(c) shall not be available to any Party (including, for purposes of the Seller Representative’s right to terminate this Agreement under this Section 12.1(c), the Company, Blocker or any Sellers) whose action or failure to act has been a principal cause of the imposition of such Order, issuance or enactment of such Law or the failure of such Order to be vacated, terminated or lifted, and such action or failure to act constitutes a breach of Section 7.3;
(d) by the Seller Representative, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by Buyer, such that the conditions set forth in Section 10.1(a) or Section 10.1(b) would not be satisfied; provided, that if such breach by Buyer is curable prior to the End Date through the exercise of reasonable efforts, then ISA the Seller Representative may not terminate this Agreement under this Section 12.1(d) prior to the date that is twenty (20) days following Xxxxx’s receipt of written notice from the Seller Representative of such breach and of the Seller Representative’s intention to terminate this Agreement pursuant to this Section 12.1(d) as a result thereof (it being understood that the Seller Representative may not terminate this Agreement pursuant to this Section 12.1(d) if (i) such breach by Buyer is cured such that such conditions would then be satisfied or (ii) the Company, Blocker, the Seller Representative or any Seller is in breach of this Agreement such that the conditions set forth in Section 6.05 has not been satisfied9.1(a) or Buyer (if Section 7.05 has 9.1(b) would not been be satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party); or
(ive) at any time before the Closing, by Sellers, pursuant to a Board Termination.
(b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by the amount of Buyer's legalCompany, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000Blocker , the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from Seller Representative or any Seller, such that the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest conditions set forth in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwiseSection 9.1(a) or all or substantially all of Section 9.1(b) would not be satisfied; provided, that if such breach is curable by the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv)Company, then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amountBlocker, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee Seller Representative or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination FeeSeller, as applicable, prior to the End Date through the exercise of reasonable efforts, then Buyer may not terminate this Agreement under this Section 12.1(e) prior to the date that is twenty (A20) days following the Seller Representative’s receipt of written notice from Buyer of such breach and of Buyer’s costs and expenses intention to terminate this Agreement pursuant to this Section 12.1(e) as a result thereof (including attorneys’ feesit being understood that Buyer may not terminate this Agreement pursuant to this Section 12.1(e) if (i) such breach by the Company, Blocker, the Seller Representative or any Seller, as applicable, is cured such that such conditions would then be satisfied or (ii) Buyer is in connection with breach of this Agreement such suit and (Bthat the conditions set forth in Section 10.1(a) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterlySection 10.1(b) would not be satisfied).
Appears in 1 contract
Termination Prior to the Closing. This Agreement may be terminated at any time prior to the Closing as set forth below:
(a) Notwithstanding anything herein to the contrary, this Agreement may be terminated, and the Transaction abandoned:
(i) at any time before the Closing, by mutual written consent of Buyer and ISA without penalty or paymentthe Seller Representative;
(ii) at any time before the Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event of material breach of this Agreement by the non‑terminating Party, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging breach, provided that the terminating Party shall not itself be in material breach of its representations, warranties, covenants or obligations hereunder;
(iiib) by Buyer, on either the one hand, Seller Representative or ISA, on the other hand, Buyer if the Closing shall not have taken place been consummated by January 23, 2019 (the “End Date”); provided, that the right to terminate this Agreement under this Section 11.1 shall not be available to any party whose action or failure to act has been a principal cause of, or resulted in the failure of, the Closing to occur on or before the Closing Date Deadline, provided that the terminating Party shall not be in material such date and such action or failure to act constitutes a breach of its representations, warranties, covenants or obligations under this Agreement; provided, howeverfurther, that if all of the conditions to Closing have been satisfied or shall be then capable of being satisfied, other than the conditions set forth in Section 6.05 0, and Buyer is continuing to use its reasonable best efforts to cause the conditions set forth in Section 0 to be satisfied (and pledges to continue such efforts pursuant to a plan to be mutually agreed-upon by Buyer and Seller Representative), then Buyer and the Seller Representative shall discuss in good faith an agreement to extend the Termination Date (such agreement not to be unreasonably withheld, conditioned or delayed) and, if the Buyer and the Seller Representative agree to extend the Termination Date, then the Termination Date shall be extended until such mutually agreed date.
(c) by either the Seller Representative or Buyer, if a Governmental Authority shall have issued or enacted any Legal Requirement or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing, which Legal Requirement is final and nonappealable, as applicable;
(d) by the Seller Representative, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement by Buyer, such that the conditions set forth in Section 7.07 have been satisfied or are able to 9.1 would not be satisfied as of the Closing time of such breach; provided, that if such breach by Buyer is curable prior to the End Date Deadlinethrough the exercise of reasonable efforts, then ISA the Seller Representative may not terminate this Agreement under this Section 11.1(d) prior to thirty (30) days following the receipt of written notice from the Seller Representative to Buyer of such breach (it being understood that the Seller Representative may not terminate this Agreement pursuant to this Section 11.1(d) if (i) such breach by Buyer is cured such that such conditions would then be satisfied, or (ii) the Company or any Seller is in breach of this Agreement such that the conditions set forth in Section 6.05 has 8.1 would not been be satisfied) ); or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30US-day period via notice in writing (which may be provided via email) to the other Party; orDOCS\102662145.20
(ive) at by Buyer, upon a breach of any time before the Closingrepresentation, by Sellerswarranty, pursuant to a Board Termination.
(b) If covenant or agreement set forth in this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on by the part of any Party (Company or any Seller, such that the conditions set forth in Section 8.1 would not be satisfied as of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case such breach or as of the terminating Party time such representation or warranty shall have at its disposal all rights and remedies available to it at law or in equity.
(c) If this Agreement become untrue; provided, that if such breach is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing curable by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee Company or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination FeeSeller, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on prior to the Board Termination Costs and/or the Board Termination Fee or portion thereof End Date through the date exercise of payment at reasonable efforts, then Buyer may not terminate this Agreement under this Section 11.1(e) prior to thirty (30) days following the rate receipt of 8% per annumwritten notice from Buyer to the Seller Representative of such breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 11.1(e) if (i) such breach by the Seller Representative and any Seller, compounded quarterlyas applicable, is cured such that such conditions would then be satisfied, or (ii) Buyer is in breach of this Agreement such that the conditions set forth in Section 9.1 would not be satisfied).
Appears in 1 contract
Samples: Merger Agreement (Cimpress N.V.)
Termination Prior to the Closing. (a) Notwithstanding anything herein 14.1 This Agreement shall terminate and be of no further force or effect between the parties hereto except as to liability for breach or default of any covenant, agreement, representation, warranty, duty or obligation occurring or arising prior to the contrarydate of termination, this Agreement may be terminatedupon the occurrence of any of the following:
14.1.1 Immediately prior to Closing, the Purchasers have given notice to ZiaSun of the material breach or default by APT or ZiaSun in the performance of any covenant, agreement, representation, warranty, duty or obligation hereunder, and the Transaction abandoned:
(i) at any time before the provided that no such termination shall be effective if, prior to Closing, by mutual consent the breaching party shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of Buyer and ISA without penalty or payment;termination.
(ii) at any time before the 14.1.2 Immediately prior to Closing, by Buyer, on the one hand, or ISA, on the other hand, in the event ZiaSun has given notice to Purchasers of material breach or default in the performance of any covenant, agreement, representation, warranty, duty or obligation of Purchasers hereunder, and provided that no such termination shall be effective, if prior to Closing the Purchasers shall have fully and completely corrected and cured the grounds for the termination as set forth in said notice of termination.
14.2 Notwithstanding anything to the contrary contained herein, no party hereto shall have the right to terminate this Agreement due to its own breach or because of any immaterial breach by any other party hereto or any covenant, agreement, representation, warranty, duty or obligation hereunder.
14.3 No termination of this Agreement by the non‑terminating Partyfor any reason or in any manner shall release, which breach is not cured by the breaching Party within 15 days following receipt of written notice of the alleged breach sent by the Party alleging or be construed as so releasing, any party hereto from any liability or damage to any other party hereto arising out of, in connection with or otherwise relating to, directly to, directly or indirectly, said party's breach, provided that the terminating Party shall not itself be default, or failure in material breach performance of any of its representationscovenants, warrantiesagreements, covenants duties or obligations arising hereunder;
(iii) by Buyer, on the one hand, or ISA, on the other hand, if the Closing shall not have taken place on or before the Closing Date Deadline, provided that the terminating Party shall not be in material breach of its representations, warranties, covenants or obligations under this Agreement; provided, however, that if all conditions to Closing other than the conditions set forth in Section 6.05 or Section 7.07 have been satisfied or are able to be satisfied as of the Closing Date Deadline, then ISA (if Section 6.05 has not been satisfied) or Buyer (if Section 7.05 has not been satisfied) may extend the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) to the other Party; or
(iv) at any time before the Closing, by Sellers, pursuant to a Board Termination.
(b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part misrepresentations of any Party (representations or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equitywarranty herein contained.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterly.
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Termination Prior to the Closing. (a) Notwithstanding anything herein to the contrary, this This Agreement may be terminated, and the Transaction abandoned:
(i) terminated at any time before the Closing, Closing Date:
(a) by the mutual written consent of Buyer and ISA without penalty or paymentthe Parties hereto;
(iib) at by either the Purchaser or Seller, if any time before Requisite Regulatory Approval or any other approval of a Governmental Authority, the lack of which would result in the failure to satisfy the condition set forth in Section 5.1(a), has been denied by the applicable Governmental Authority and such denial has become final and nonappealable;
(c) by either the Purchaser or Seller, if prior to the Closing, (i) any permanent injunction or action by Buyer, on any Governmental Authority of competent jurisdiction prohibiting consummation of the one hand, or ISA, on the other hand, in the event of material breach of transactions contemplated by this Agreement by or the non‑terminating Party, which breach is not cured by the breaching Party within 15 days following receipt of written notice Ancillary Agreements becomes final and nonappealable; (ii) any law or regulation makes consummation of the alleged breach sent transactions contemplated by this Agreement or the Party alleging breachAncillary Agreements illegal or otherwise prohibited; or (iii) consummation of the transactions contemplated by this Agreement or the Ancillary Agreements would violate any nonappealable final order, provided that the terminating Party shall not itself be in material breach decree or judgment of its representations, warranties, covenants or obligations hereunderany Governmental Authority having competent jurisdiction;
(iiid) by Buyer, on either the one hand, Purchaser or ISA, on the other handSeller, if the Closing shall Purchase is not have taken place on or before the Closing Date Deadlineconsummated by January 31, provided that the terminating Party shall not be in material breach of its representations, warranties, covenants or obligations under this Agreement2007; provided, however, that neither the Purchaser nor Seller may terminate this Agreement pursuant to this Section 6.1(d) if such party’s breach of any representation, warranty or covenant contained herein has been the cause of or resulted in the failure to consummate such transactions by such date; or
(e) by either the Purchaser or Seller, in the event of a breach or default in the performance by the other party of any material representation, warranty, covenant or agreement of such other party, which breach or default (i) would, individually or in the aggregate with all conditions to Closing other than uncured breaches and defaults of such other party, constitute grounds for the conditions set forth in Section 6.05 5.2(a) or (b) or Section 7.07 have been satisfied 5.3(a) or are able (b), as the case may be, not to be satisfied as of at the Closing Date DeadlineDate, then ISA and (if Section 6.05 ii) has not been satisfiedbeen, or cannot be, cured within thirty (30) days after written notice, describing such breach or Buyer (if Section 7.05 has not been satisfied) may extend default in reasonable detail, is given by the Closing Date Deadline for one additional 30-day period via notice in writing (which may be provided via email) terminating party to the other Party; or
(iv) at any time before the Closing, by Sellers, pursuant to a Board Terminationbreaching or defaulting party.
(b) If this Agreement is validly terminated pursuant to Section 8.05(a)(i), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, agents, consultants or other representatives). If this Agreement is validly terminated pursuant to Section 8.05(a)(ii), in addition to termination hereof, the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity. In addition, if this Agreement is validly terminated pursuant to Section 8.05(a)(iii), this Agreement will be null and void, and there will be no liability on the part of any Party (or any of their respective Equity holders, officers, directors, managers, trustees, employees, attorneys, agents, consultants or other representatives), unless the non-terminating Party is in material breach of the Agreement at the time of termination, in which case the terminating Party shall have at its disposal all rights and remedies available to it at law or in equity.
(c) If this Agreement is validly terminated pursuant to Section 8.05(a)(iv), then ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to the amount of Buyer's legal, consultant advisory and other documented expenses incurred in connection with the Transaction (such aggregate amount, not to exceed $300,000, the "Board Termination Costs"). The Board Termination Costs shall be payable to Buyer no later than 5 Business Days from the date of such termination. Further, if Sellers enter into an agreement with a Third Party to sell a controlling interest in the Equity of ISA (whether via stock sale, merger, recapitalization or otherwise) or all or substantially all of the Assets prior to or within 180 days following termination pursuant to Section 8.05(a)(iv), then, in addition to the Board Termination Costs, ISA shall pay to Buyer, via wire transfer of immediately available funds to an account designated in writing by Buyer, an amount equal to $850,000 minus the Board Termination Costs (such amount, the “Board Termination Fee”). The Board Termination Fee shall be payable to Buyer no later than 5 Business Days from the date of such termination or the execution of such agreement, whichever shall occur later. Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing or decreasing the amount of the Board Termination Costs or the Board Termination Fee or expanding the circumstances in which the Board Termination Costs or the Board Termination Fee is to be paid, it is agreed that the Board Termination Costs and the Board Termination Fee constitute liquidated damages, and not a penalty, and the payment of the Board Termination Costs and the Board Termination Fee in the circumstances specified herein is supported by due and sufficient consideration. The Parties acknowledge and agree that the agreements contained in this Section 8.05(c) are an integral part of this Agreement, and that without these agreements, the Parties would not enter into this Agreement. Accordingly, if ISA fails to promptly pay the Board Termination Costs or the Board Termination Fee in full when due and, in order to obtain such payment, Buyer commences a suit that results in a judgment against ISA for the Board Termination Costs, the Board Termination Fee or any portion of either of them, ISA shall pay to Buyer, in addition to the full amount of the Board Termination Costs and the Board Termination Fee, as applicable, (A) Buyer’s costs and expenses (including attorneys’ fees) in connection with such suit and (B) interest on the Board Termination Costs and/or the Board Termination Fee or portion thereof through the date of payment at the rate of 8% per annum, compounded quarterly.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pier 1 Imports Inc/De)
