Termination. 8.01 This Agreement shall terminate: (a) at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or (b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time. 8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if: (a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and (b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default. 8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply. 8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date. 8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee. 8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith: (a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and (b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Option Agreement (Foremost Lithium Resources & Technology Ltd.), Option Agreement (Foremost Lithium Resources & Technology Ltd.), Option Agreement (Foremost Lithium Resources & Technology Ltd.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, notwithstanding approval thereof by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term stockholders of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifCompany:
(a) it shall have first given to by mutual written consent of Parent, Merger Sub and the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany;
(b) by Parent or the Optionee has notCompany if any court of competent jurisdiction or other Governmental Entity located or having jurisdiction within the United States shall have issued a final order, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding decree or ruling or taken any other provision of this Agreement final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and non-appealable; provided that the Optionee has exercised party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have used efforts as required by Section 6.10 to prevent, oppose and remove such order decree or ruling or other action and the First Optionissuance of such final, if Optionee has non-appealable order, decree or ruling or other action was not advanced the Second Option Payment primarily due to the Optionor failure of the party seeking to terminate this Agreement to perform any of its obligations under this Agreement;
(c) by Parent or the Company if the Effective Time shall not have occurred on or before March 31, 2010 (the “Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party (or, in the case of Parent, Merger Sub) or the failure of such party (or, in the case of Parent, Merger Sub) to perform any of its obligations under this Agreement required to be performed at or prior to the commencement of Commercial Production (Effective Time has been the “Commencement Date”)cause of, or resulted in, the Second Option shall automatically lapse and be or no further force or effect as failure of the first Business Day immediately following Effective Time to occur on or before the Commencement Termination Date and such action or failure to perform constitutes a breach of this Agreement; provided, further, that, if on a date that would otherwise have been the Termination Date the conditions set forth in Section 7.1(c) are the only conditions in Article VII (other than those conditions that by their terms are not to be satisfied until the Closing) that shall not have been satisfied or waived on or before such date, either the Company or Parent may extend the Termination Date by up to three months by written notice to the other on or prior to the Termination Date, in which case the Termination Date shall be deemed for all purposes to be such later date.
8.05 The Optionee (d) by the Company:
(i) if there shall vacate have been a breach of any representation, warranty, covenant or agreement on the Property within a reasonable time after terminationpart of Parent or Merger Sub contained in this Agreement such that the conditions set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied and, but in either such case, such breach is incapable of being cured or has not been cured by the Termination Date; provided that the Company shall have given Parent at least twenty days written notice prior to such termination stating the Company’s intention to terminate this Agreement pursuant to this Section 8.1(d)(i); provided further that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d)(i) if the Company is then in material breach of access any of its covenants or agreements contained in this Agreement; or
(ii) if all of the conditions set forth in Section 7.1 and Section 7.2 have been satisfied (other than those conditions that by their terms are not to be satisfied until the Closing) and Parent or Merger Sub has failed to consummate the Merger promptly following satisfaction of such conditions; or
(iii) prior to the Property for three obtaining the Company Requisite Vote, pursuant to and subject to the terms and conditions of Section 6.5(b); or
(3e) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwithParent:
(ai) ensure that all filings for assessment credit if there shall have been a breach of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement such that the conditions set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied and, in either such case, such breach is incapable of being cured by the Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e)(i) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(ii) if, prior to receipt of the Company Requisite Vote, the Board of Directors of the Company or any committee thereof (A) shall have made in respect a Change of all Work to the maximum extent permittedRecommendation or (B) shall have recommended, adopted or approved, or all payments of money in lieu thereof publicly proposed to recommend, adopt or approve, any Acquisition Proposal or Acquisition Proposal Documentation; or
(f) by either Parent or the Company if, upon a vote taken thereon at the Stockholders Meeting or any postponement or adjournment thereof, this Agreement shall not have been made to maintain adopted by the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorCompany Requisite Vote.
Appears in 3 contracts
Sources: Merger Agreement (Virgin Mobile USA, Inc.), Merger Agreement (Sprint Nextel Corp), Agreement and Plan of Merger (Sprint Nextel Corp)
Termination. 8.01 This Agreement shall terminate:
(a) may be validly terminated and the transactions contemplated hereby may be abandoned at any time prior to the First Option Deadline, by Effective Time only as follows (it being agreed (i) that this Agreement may not be terminated for any other reason or on any other basis and (ii) that the Optionee giving party hereto terminating this Agreement pursuant to this Section 9.1 shall give prompt written notice of such termination to the Optionorother party or parties hereto):
(a) by mutual written agreement of Parent and the Company; or
(b) subject by either Parent or the Company, if the Purchase Time has not occurred prior to paragraph 8.0211:59 p.m. (California time) on December 31, 2009 (the “Termination Date”); provided, however, that, if the Offer Conditions set forth in Paragraph 2(a) or Paragraph 2(b) of Annex A have not been satisfied as of the Termination Date, but all other Offer Conditions set forth in Annex A would be satisfied if the Purchase Time were to occur on such date, then the Termination Date shall be extended to March 30, 2010, 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 take any action has been the cause of, or resulted in, any of the Offer Conditions having failed to be satisfied on or before the Termination Date, as applicable, or in the Purchase Time not occurring prior to the Termination Date, as applicable, in either case and if such action or failure to take action constituted a material breach of this Agreement; or
(c) by either Parent or the Company, at any time prior to the Purchase Time, if any Governmental Authority of competent jurisdiction (i) shall have enacted, issued, granted, promulgated, entered, enforced or deemed applicable to the Merger any Law that is in effect at the time of such termination and renders the Merger illegal in the United States or any state thereof, or (ii) shall have issued or granted any final, non-appealable Order that is in effect and has the effect of making the consummation of the Merger illegal in the United States or any state thereof, or which has the effect of prohibiting or otherwise preventing the consummation of the Merger in the United States or any state thereof; or
(d) by either Parent or the Company, if the Offer shall have expired in accordance with its terms without the Purchase Time having occurred; or
(e) by the Company, at any time prior to the Purchase Time, provided that the Company is not then in material breach of any covenant or agreement of the Company set forth in this Agreement, in the event (i) Parent or Purchaser shall not have performed in all material respects any obligations and complied in all material respects with any covenants or other agreements of Parent and Purchaser to be performed or complied with by them under this Agreement prior to the First Option Purchase Time or (ii) (A) the representations and warranties of Parent and Purchaser set forth in Section 5.1(a) (Organization and Standing), Section 5.2 (Corporate Approvals) and Section 5.3(b) (Non-contravention; Required Consents) (the “Specified Parent Representations”) (1) shall not have been true and correct as of the date of this Agreement or (2) shall not be true and correct in all respects on and as of the Expiration Date with the same force and effect as if made on and as of the Expiration Date (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct in all respects only as of such particular date) or (B) the representations and warranties of Parent and Purchaser set forth in this Agreement (other than the Specified Parent Representations) (1) shall have been true and correct in all respects as of the date of this Agreement (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct in all respects only as of such particular date) without giving effect to any qualification as to “Material Adverse Effect”) and (2) shall be true and correct in all respects on and as of the Expiration Date with the same force and effect as if made on and as of the Closing Date (other than those representations and warranties which address matters only as of a particular date, which shall have been true and correct in all respects only as of such particular date) without giving effect to any qualification as to “Material Adverse Effect”, except for any failure to be so true and correct which has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Purchaser or such inaccuracies in the representations and warranties of Parent or Purchaser are curable by Parent or Purchaser through the exercise of commercially reasonable efforts within thirty (30) calendar days, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 9.1(e) until the expiration of such thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(e) if such breach or inaccuracy by Parent or Purchaser is cured within such thirty (30) calendar day period); or
(f) by Parent, at any time prior to the Purchase Time, provided that Parent is not exercised then in material breach of any covenant or agreement of Parent set forth in this Agreement, in the event of a breach of any covenant or agreement on the part of the Company set forth in this Agreement or 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 were such time a scheduled expiration of the Offer, the Offer Conditions set forth in Paragraph 2(d) or 2(e) of Annex A would not be satisfied; provided, however, that notwithstanding the foregoing, in the event that such breach by the First Option Deadline Company or such inaccuracies in the representations and warranties of the Company are curable by the Company through the exercise of commercially reasonable efforts within thirty (30) calendar days, then Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(f) until the expiration of such thirty (30) calendar day period after delivery of written notice from Parent to the Company of such breach or inaccuracy, as applicable (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(f) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period); or
(g) by Parent, at any time prior to time.the Purchase Time (whether or not the Requisite Merger Approval has been obtained), in the event that:
8.02 Notwithstanding (i) the Company Board or any other provision committee thereof shall have for any reason effected a Company Board Recommendation Change (whether or not in compliance with the terms of this Agreement);
(ii) the Company shall have failed to include the Company Board Recommendation in the Schedule 14D-9;
(iii) a tender offer or exchange offer for Company Common Stock is commenced by a Person unaffiliated with Parent or the Purchaser and (A) within the ten (10) business-day period specified in Rule 14e-2 promulgated under the Exchange Act, if the Company shall have failed to issue a public statement (and filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act) reaffirming the Company Board Recommendation and recommending that the Company’s stockholders reject such tender or exchange offer and not tender any shares of Company Common Stock into such tender or exchange offer, or (B) at any time during after the term of the First Optionforegoing 10 business-day period, the Optionee Company shall issue a press release or file a Schedule 14D-9, in any such case relating to such tender or exchange offer that fails to advance reaffirm the Company Board Recommendation and recommend that the Company’s stockholders reject such tender or exchange offer and not tender any shares of Company Common Stock into such tender or exchange offer; or
(iv) the Company Board shall fail to reaffirm (publicly, if requested by Parent) the Company Board Recommendation within ten (10) Business Days following Parent’s request in writing that such recommendation be reaffirmed.
(h) by the Company, at any time prior to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereofPurchase Time, or is in breach of any covenant, representation or warranty contained herein, if the Optionor may terminate this Agreement, but only iffollowing conditions are satisfied:
(ai) it the Company shall have first given received an Acquisition Proposal in writing after the date hereof and the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal;
(ii) the Company Board shall have determined in good faith (after consultation with its financial advisor and its outside legal counsel) that, in light of such Superior Proposal, the failure to terminate this Agreement pursuant to this Section 9.1(h) is reasonably likely to be a breach of its fiduciary duties to the Optionee a Company’s stockholders under Delaware Law;
(iii) the Company Board shall have given Parent prompt written notice of default containing particulars (1) of the payment not advanced identity of the Person(s) making such Superior Proposal and all of the material terms and conditions of such Superior Proposal (and if such Superior Proposal is in written form, a copy of such Superior Proposal and all related agreements, commitment letters and other material documents provided or shares not issuedotherwise furnished by the Person(s) making such Superior Proposal in connection therewith) (it being agreed that in the event that there is any material revision to the terms of a Superior Proposal, or including any revision in price, the covenant, representation or warranty breachedCompany shall promptly notify Parent of any such material revision); and
(biv) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply concurrently with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision termination of this Agreement pursuant to this Section 9.1(h) (and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment as a condition to the Optionor prior to the commencement effectiveness of Commercial Production (the “Commencement Date”such termination), the Second Option Company shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within enter into a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination definitive agreement for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond Superior Proposal referenced in this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the OptioneeSection 9.1(h).
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Merger Agreement (Emc Corp), Merger Agreement (Data Domain, Inc.), Merger Agreement (Emc Corp)
Termination. 8.01 This Agreement may be terminated (and such termination shall terminate:
(ahave the effects set forth in Section 11.2 hereof) at any time prior to the First Option Deadline, Closing by written notice by the Optionee giving notice terminating party to the other party (except in the case of termination pursuant to Section 11.1(a) hereof, which requires mutual agreement of all parties or pursuant to Section 11.1(i) hereof, which termination shall be automatic):
(a) by mutual written consent of Buyer and Sellers whether or not the Agreement has been approved by the respective directors and stockholders of such parties;
(b) by either Buyer or Sellers, if the transactions contemplated hereby shall not have been consummated on or prior to the OptionorOutside Date; provided, however, that the right to terminate this Agreement under this Section 11.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the primary cause of or resulted in the failure of the Closing to occur on or before the Outside Date;
(c) by either Buyer or Sellers, if any Restraint prohibiting or otherwise preventing the purchase of the ACE Lo Equity Interests, the Boardwalk Equity Interests, the Casino Property or the Traymore Site shall be in effect and shall have become final and nonappealable; provided, that, the party seeking to terminate this Agreement pursuant to this Section 11.1(c) shall have used its commercially reasonable efforts to prevent the entry of and to remove such Restraint and that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the primary cause of, or materially contributed to, the action resulting in such Restraint;
(d) by Buyer, if any Selling Party has breached any representation, warranty, covenant or agreement on the part of such Selling Party set forth in this Agreement which (i) would result in a failure of a condition set forth in Section 10.2(a) or (b) hereof and (ii) is not cured in all material respects within sixty (60) calendar days after written notice thereof; provided, however, that if such breach cannot reasonably be cured within such sixty (60) day period but can be reasonably cured prior to the Outside Date, and such Selling Party is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 11.1(d); provided, further, that Buyer’s right to terminate this Agreement under this Section 11.1(d) shall not be available if, at the time of such intended termination, Sellers have the right to terminate this Agreement under Section 11.1(e) hereof;
(e) by Sellers, if Buyer has breached any representation, warranty, covenant or agreement on the part of Buyer set forth in this Agreement which (i) would result in a failure of a condition set forth in Section 10.3(a) or (b) hereof and (ii) is not cured in all material respects within sixty (60) calendar days after written notice thereof; provided, however, that if such breach cannot reasonably be cured within such sixty (60) day period but can be reasonably cured prior to the Outside Date, and Buyer is diligently proceeding to cure such breach, this Agreement may not be terminated pursuant to this Section 11.1(e); provided, further, that Sellers’ right to terminate this Agreement under this Section 11.1(e) shall not be available if, at the time of such intended termination, Buyer has the right to terminate this Agreement under Section 11.1(d), Section 11.1(f) or Section 11.1(h) hereof;
(f) by Buyer, in the event that AREP Sands does not execute and adopt the Stockholder Consent within one (1) business day following the execution of this Agreement;
(g) by ACE Hi with respect to the ACE Lo Purchase only, in accordance with Section 9.4(b); provided that, in order for the termination of this Agreement pursuant to this Section 11.1(g) to be deemed effective, ACE Hi shall have complied with Section 9.4 and with applicable requirements, including the payment of the Termination Fee, of Section 9.11;
(h) by Buyer, in the event of a material breach of Section 9.4; or
(bi) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreementautomatically, if at any Buyer does not deliver a written notice to elect to effect a Revival pursuant to Section 9.4(e)(iii) hereof within the time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such defaultperiod specified therein.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Acquisition Agreement (Pinnacle Entertainment Inc), Acquisition Agreement (American Real Estate Partners L P), Acquisition Agreement (Atlantic Coast Entertainment Holdings Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger and other transactions contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, whether before or after the Company Stockholders’ Approval (with any termination by Parent also being an effective termination by Merger Sub):
(a) by mutual written consent of the Company and Parent;
(b) by either Parent or the Company if any Governmental Authority of competent jurisdiction shall have issued a final and non-appealable order, decree, judgment, injunction or ruling or taken any other final and non-appealable action enjoining, restraining or otherwise prohibiting the consummation of the Merger; provided that the party seeking to terminate this Agreement shall have used its reasonable best efforts to have such order, decree, judgment, injunction or ruling lifted if and to the extent required by Section 6.3;
(c) by either Parent or the Company if the Merger shall not have been consummated on or before September 30, 2011 (the “Termination Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any party if the failure of such party to perform any of its obligations under this Agreement has been a principal cause of or resulted in the failure of the Merger to be consummated on or before such date;
(d) by Parent, in the event of a material breach by the Optionee giving notice Company of any representation, warranty, covenant or other agreement contained herein, or if a representation or warranty of the Company shall have become untrue or inaccurate after the date of this Agreement, which situation in either case (i) would result in a failure of a condition set forth in Section 7.2(a) or Section 7.2(b), and (ii) has not been or cannot reasonably be expected to be cured by the Termination Date;
(e) by the Company, in the event of a material breach by Parent or Merger Sub, as the case may be, of any representation, warranty, covenant or other agreement contained herein, or if a representation or warranty of Parent or Merger Sub, as the case may be, shall have become untrue or inaccurate after the date of this Agreement, which situation in either case (i) would result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b), and (ii) has not been or cannot reasonably be expected to be cured by the Termination Date;
(f) by either Parent or the Company if the Company Stockholders or Parent Stockholders, respectively, shall have failed to approve the matters presented thereto pursuant to this Agreement at the Company Stockholders’ Meeting or Parent Stockholders’ Meeting, as applicable, or at any adjournment or postponement thereof; provided, however, that no party may terminate this Agreement pursuant to this Section 8.1(f) if such party has breached in any material respect any of its obligations under this Agreement, in each case in a manner that caused the failure to obtain the Company Stockholders’ Approval at the Company Stockholders’ Meeting or the Parent Stockholders’ Approval at the Parent Stockholders’ Meeting, as applicable, or at any adjournment or postponement thereof;
(g) by Parent, if (i) the Company Board shall have failed to include the Company Recommendation in the Joint Proxy Statement or publicly announced or proposed an intent to fail to do so, (ii) the Company Board or any committee thereof shall have made a Company Adverse Recommendation Change or publicly announced or proposed an intent to do so or (iii) the Company shall have entered into, or the Company Board shall have authorized or approved or proposed to authorize or approve, any Contract with respect to a Company Acquisition Proposal (other than any confidentiality agreement permitted by Section 6.4(c));
(h) by the Company, if (i) the Parent Board shall have failed to include the Parent Recommendation in the Joint Proxy Statement or publicly announced or proposed an intent to fail to do so, (ii) the Parent Board or any committee thereof shall have made a Parent Adverse Recommendation Change or publicly announced or proposed an intent to do so or (iii) Parent shall have entered into, or the Parent Board shall have authorized or approved or proposed to authorize or approve, any Contract with respect to a Parent Acquisition Proposal (other than any confidentiality agreement permitted by Section 6.5(c));
(i) by the Company in order to enter into a definitive agreement with respect to a Company Superior Proposal in accordance with the terms of Section 6.4(e), but only if the Company (i) is not in material breach of Section 6.4 and (ii) shall concurrently with, and as a condition to, such termination pay the Termination Amount to the OptionorParent in accordance with Section 8.2(c)(ii) and Section 8.2(d); or
(bj) subject by Parent in order to paragraph 8.02, enter into a definitive agreement with respect to a Parent Superior Proposal in accordance with the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision terms of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this AgreementSection 6.5(e), but only if:
if Parent (ai) it is not in material breach of Section 6.5 and (ii) shall have first given concurrently with, and as a condition to, such termination pay the Parent Termination Amount to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(bCompany in accordance with Section 8.2(c)(iv) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such defaultand Section 8.2(d).
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Merger Agreement (Rock-Tenn CO), Merger Agreement (SMURFIT-STONE CONTAINER Corp), Merger Agreement (Rock-Tenn CO)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Mergers and the other transactions contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, by whether (except as expressly set forth below) before or after the Optionee giving notice of termination to Acuren Stockholder Approval or the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifNV5 Stockholder Approval has been obtained:
(a) it shall have first given to the Optionee a notice by mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andAcuren and NV5;
(b) by either Acuren or NV5 upon written notice to the Optionee other Party:
(i) if any Governmental Authority having jurisdiction over any Party shall have issued any order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the Mergers and such order, decree, ruling or injunction or other action shall have become final and non-appealable, or if there shall be adopted any Law that permanently makes consummation of any of the Mergers illegal or otherwise permanently prohibited; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(i) shall not be available to any Party whose failure to fulfill any covenant or agreement under this Agreement has notbeen the primary cause of or resulted in the action or event described in this Section 7.1(b)(i) occurring;
(ii) if the Mergers shall not have been consummated on or before 5:00 p.m. on October 3, within twenty-2025 (the “Outside Date”) ; provided, that if all of the conditions to Closing, other than the conditions set forth in Section 6.1(e), shall have been satisfied or waived or shall be capable of being satisfied at such time (other than those conditions that by their nature are to be satisfied at the Closing), the Outside Date shall automatically be extended to the date that is November 3, 2025, which date shall thereafter be deemed to be the Outside Date; and provided further, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to any Party whose failure to fulfill any covenant or agreement under this Agreement has been the primary cause of or resulted in the failure of the Mergers to occur on or before such date;
(iii) in the event of a breach by the other Party of any representation, warranty, covenant or other agreement contained in this Agreement which would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) or Section 6.3(a) or Section 6.3(b), as applicable, if it was continuing as of the Closing (and such breach is either not curable prior to the Outside Date or, if curable prior to the Outside Date, has not been cured by the breaching Party by the earlier of (A) thirty (30) days after the giving of written notice to the breaching Party of such breach and (B) two (222) days following delivery Business Days prior to the Outside Date) (a “Terminable Breach”); provided, however, that the terminating Party is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(iv) if (A) the Acuren Stockholder Approval shall not have been obtained upon a vote held at a duly held and concluded Acuren Stockholders Meeting (including any adjournments or postponements thereof) or (B) the NV5 Stockholder Approval shall not have been obtained upon a vote at a duly held and concluded NV5 Stockholders Meeting (including any adjournments or postponements thereof);
(c) by NV5, prior to, but not after, the time the Acuren Stockholder Approval is obtained, if the Acuren Board (or a committee thereof) shall have effected an Acuren Change of Recommendation (whether or not such notice Acuren Change of defaultRecommendation is permitted by this Agreement);
(d) by Acuren, cured prior to, but not after, the time the NV5 Stockholder Approval is obtained, if the NV5 Board (or a committee thereof) shall have effected a NV5 Change of Recommendation (whether or not such default.NV5 Change of Recommendation is permitted by this Agreement);
8.03 Should (e) by NV5, prior to, but not after, the Optionee fail time the NV5 Stockholder Approval is obtained, if (i) NV5 has received a NV5 Superior Proposal and (ii) the NV5 Board has authorized NV5 to comply enter into a NV5 Alternative Acquisition Agreement to consummate the transaction contemplated by such NV5 Superior Proposal pursuant to Section 5.4(f)(v) and in compliance in all material respects with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and Section 5.4; provided that a termination pursuant to this Section 7.1(e) shall not be effective unless NV5 has paid, or has caused to be paid, to Acuren the Optionee has exercised the First OptionTermination Fee prior to or concurrently with such termination in accordance with Section 7.3(g); or
(f) by NV5, if Optionee Acuren has not advanced obtained the Second Option Payment Debt Financing and consummated the Closing by the fifth (5th) Business Day following NV5’s confirmation in writing to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as Acuren that each of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall conditions set forth in Section 6.1 and Section 6.2 have the right of access been satisfied or waived (other than those conditions that by their nature are to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination be satisfied at the absolute discretion Closing and that were capable of being satisfied if the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the OptioneeClosing would occur).
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Merger Agreement (NV5 Global, Inc.), Merger Agreement (Acuren Corp), Merger Agreement (Acuren Corp)
Termination. 8.01 This Whether before or after any approval of the matters presented in connection with the Merger by the shareholders of the Company, this Agreement shall terminate:
(a) may be terminated and the Merger may be abandoned at any time prior to the First Option DeadlineEffective Time (with any termination by Parent also being an effective termination by Merger Sub):
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company:
(i) if the Merger shall not have been consummated on or before June 30, 2010 (the “Outside Date”) and (ii) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Merger to have been consummated by such date;
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such Order shall have become final and non-appealable, provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.6 with respect to such Order;
(iii) if at the Company Shareholder Meeting (including any adjournment or postponement thereof), the Company Shareholder Approval shall not have been obtained;
(c) by Parent:
(i) if (A) (x) any of the representations or warranties of the Company herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) the Company shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in the case of each of clause (x) and (y) such that any condition set forth in Section 6.1 or Section 6.2 would not be satisfied; and (B) if curable, such untruth, inaccuracy, breach or failure to perform is not cured within fifteen (15) calendar days after written notice to the Company (or, if the Outside Date is less than sixteen (16) calendar days from the notice by Parent, by the Optionee giving notice last day before the Outside Date) describing such untruth, inaccuracy, breach or failure to perform;
(ii) if, after the date hereof, the Company Board or any committee thereof has effected a Change in Recommendation;
(iii) if, after the date hereof, the Company Board or any committee thereof fails to reaffirm the Company Recommendation that the holders of termination Shares approve the Merger in accordance with the provisions of the NJBCA within three (3) Business Days of a request to the Optionordo so by Parent; or
(biv) subject if (A) the Company or any of the Company Subsidiaries or any of their respective Representatives shall have breached any of their respective obligations under Section 5.3 in any material respect and (B) if curable, such breach is not cured within fifteen (15) calendar days after written notice to paragraph 8.02the Company (or, if the Outside Date is less than sixteen (16) calendar days from the notice by Parent, by the last day before the Outside Date) describing such breach;
(d) by the Company:
(i) if (A) (x) any of the representations or warranties of Parent or Merger Sub herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) Parent or Merger Sub shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in the event the First Option case of each of clause (x) and (y) such that any condition set forth in Section 6.1 or Section 6.3 would not be satisfied, and (B) if curable, such untruth, inaccuracy, breach or failure to perform is not exercised cured within fifteen (15) calendar days after receipt of written notice to Parent and Merger Sub (or, if the Outside Date is less than sixteen (16) calendar days from the notice by the First Option Deadline from Company, by the last day before the Outside Date) describing such untruth, inaccuracy, breach or failure to perform; or
(ii) if the Company Board determines to accept a Superior Proposal, only if the Company has complied with Section 5.3 and concurrently with such termination pays the Termination Fee to Parent in accordance with the procedures and within the time periods set forth in Section 7.3. The Party desiring to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it Agreement pursuant to this Section 7.1 shall have first given to the Optionee a give notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, termination and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Section 7.1 being relied on to terminate this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateother parties.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Rights Agreement (K Tron International Inc), Merger Agreement (K Tron International Inc), Merger Agreement (Hillenbrand, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Mergers and the other Transactions may be abandoned at any time prior to the First Option DeadlineCompany Merger Effective Time, by whether (except as expressly set forth below) before or after the Optionee giving notice of termination to Firefly Stockholder Approval or the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifOhm Stockholder Approval has been obtained:
(a) it by mutual written consent of Firefly and Ohm;
(b) by either Firefly or Ohm:
(i) if any Governmental Entity having jurisdiction over any Party shall have first given issued any order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of any of the Mergers and such order, decree, ruling or injunction or other action shall have become final and nonappealable, or if there shall be adopted any Law that permanently makes consummation of any of the Mergers illegal or otherwise permanently prohibited; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(i) shall not be available to any Party whose failure to fulfill any covenant or agreement under this Agreement has been the primary cause of or resulted in the action or event described in this Section 8.1(b)(i) occurring;
(ii) if the Mergers shall not have been consummated on or before 5:00 p.m. Houston, Texas time, on October 7, 2022 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b)(ii) shall not be available to any Party whose failure to fulfill any covenant or agreement under this Agreement has been the primary cause of or resulted in the failure of the Mergers to occur on or before such date;
(iii) in the event of a breach by the other Party of any representation, warranty, covenant or other agreement contained in this Agreement which would give rise to the Optionee failure of a notice of default containing particulars condition set forth in Section 7.2(a) or 7.2(b) or Section 7.3(a) or 7.3(b), as applicable, if it was continuing as of the payment Closing (and such breach is not advanced or shares not issuedcurable prior to the Outside Date, or if curable prior to the covenantOutside Date, representation has not been cured by the earlier of (i) thirty (30) days after the giving of written notice to the breaching Party of such breach and (ii) two (2) Business Days prior to the Outside Date) (a “Terminable Breach”); provided, however, that the terminating Party is not then in Terminable Breach of any representation, warranty, covenant or warranty breachedother agreement contained in this Agreement;
(iv) if (A) the Firefly Stockholder Approval shall not have been obtained upon a vote held at a duly held Firefly Stockholders Meeting, or (B) the Ohm Stockholder Approval shall not have been obtained upon a vote at a duly held Ohm Stockholders Meeting;
(c) by Ohm, prior to, but not after, the time the Firefly Stockholder Approval is obtained, if the Firefly Board or a committee thereof shall have effected a Firefly Change of Recommendation (whether or not such Firefly Change of Recommendation is permitted by this Agreement); and
(bd) the Optionee has notby Firefly, within twenty-two (22) days following delivery of such notice of defaultprior to, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereofbut not after, the Optionortime the Ohm Stockholder Approval is obtained, without any further notice, may thereafter terminate if the Ohm Board or a committee thereof shall have effected an Ohm Change of Recommendation (whether or not such Ohm Change of Recommendation is permitted by this Agreement, and the provisions of paragraph 8.06 hereof shall then apply).
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Merger Agreement (Oasis Petroleum Inc.), Merger Agreement (Whiting Petroleum Corp), Merger Agreement (Oasis Petroleum Inc.)
Termination. 8.01 This Agreement shall terminatemay be terminated and the Offer and the other Transactions may be abandoned, at any time before the Acceptance Time, as follows:
(a) at by mutual written consent of Purchaser and the Company;
(b) by the Company, in the event that (i) the Company is not then in material breach of this Agreement and (ii) (1) Purchaser shall have materially breached its covenants or agreements under this Agreement, or (2) any time prior of the representations and warranties of Purchaser set forth in this Agreement shall have become inaccurate, which inaccuracy would reasonably be expected to have a Purchaser Material Adverse Effect, in each of clauses (1) and (2) to the First Option Deadlineextent such breach, violation or inaccuracy is incapable of being cured or is not cured by Purchaser within the earlier of (x) thirty (30) calendar days following receipt of written notice from the Company of such breach, violation or inaccuracy or (y) the then-scheduled expiration date of the Offer (provided, for the purposes of this clause (y), Purchaser may irrevocably extend the expiration date of the Offer to the later of (A) the Outside Date or (B) the thirtieth calendar day after the written notice contemplated in clause (x) in order to extend the cure period);
(c) by Purchaser, in the event that (i) Purchaser is not then in material breach of this Agreement and (ii) the Company shall have materially breached its covenants or agreements under this Agreement, or any of the representations and warranties of the Company set forth in this Agreement shall have become inaccurate, in either case such that the conditions to the Offer set forth in Section 1.1(a) are not capable of being satisfied by the Outside Date;
(d) by either Purchaser or the Company, if the Acceptance Time shall not have occurred by 11:59 p.m. New York Time on May 30, 2018 (the “Outside Date”); provided, however, that if the conditions set forth in Section 1.1(a)(iv)(2) or Section 1.1(a)(iv)(3) solely with respect to Antitrust Laws shall not have been satisfied on the Outside Date, the Outside Date may be extended by either Party, by the Optionee giving written notice of termination to the Optionorother Party, up to a date not beyond June 30, 2018; provided, further, that the right to terminate this Agreement pursuant to this Section 6.1(d) shall not be available to any Party whose action or failure to fulfill any obligation under this Agreement proximately caused any of the Offer Conditions having failed to be satisfied and such action or failure to act constitutes a material breach of this Agreement; or
(be) subject to paragraph 8.02by either the Company or Purchaser if a Governmental Entity of competent jurisdiction shall have issued a final, non-appealable order, injunction, decree or ruling in each case permanently restraining, enjoining or otherwise prohibiting the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term consummation of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such defaultOffer.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement
Termination. 8.01 This Agreement shall terminateforthwith terminate in circumstances where:
(a) at The Optionee shall fail to comply with any time prior of its obligations hereunder, subject to the First Option DeadlineForce Majeure, and within 30 days of receipt by the Optionee giving of written notice from the Optionor of such default, the Optionee has not:
(i) cured such default, or commenced proceedings to cure such default and prosecuted same to completion without undue delay; or
(ii) given the Optionor notice that it denies that such default has occurred. In the event that the Optionee gives notice that it denies that a default has occurred, the Optionee shall not be deemed to be in default until the matter shall have been determined finally through such means of dispute resolution as such matter has been subjected to by either party; or
(b) The Optionee gives notice of termination to the Optionor; or
(b) subject , which it shall be at liberty to paragraph 8.02, in do at any time after the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision execution of this Agreement, if at any time during the term of the First Option, . If and when the Optionee fails elects to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given or terminate one of the projects comprising the Property, at such time the Property or the specific project will be returned to the Optionee a notice Optionor with all claim fees paid in full for that calendar year but no later than June 30th of default containing particulars that year. For clarity, any portion of the payment not advanced Property that is terminated after June 30th and before September 1st of any year must have the annual claim fees paid in full for September 1st of that year. Upon the termination of this Agreement under this Section 8, the Optionee shall cease to be liable to the Optionor in debt, damages or shares not issuedotherwise, or other than to pay the covenant, representation or warranty breached; and
claim fees as described in paragraph (b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail this Section 8 and all liabilities referred to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision in Section 11. Upon termination of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”)under this Section 8, the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after such termination, but shall have the right of access to the Property for three (3) a period of six months following termination thereafter for the purpose of removing its buildings, plant, equipmentchattels, machinery, tools, appliances equipment and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneefixtures.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Property Option Agreement (Patriot Gold Corp), Property Option Agreement (Patriot Gold Corp), Property Option Agreement (Patriot Gold Corp)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Offer, the Merger and the other transactions contemplated hereby may be abandoned at any time prior to the First Option Deadline, time of the first acceptance of Shares for payment pursuant to the Offer ("FIRST ACCEPTANCE TIME") by action taken or authorized by the Optionee giving Board of Directors, or other governing body or entity, of the terminating party or parties, as follows (the date of any such termination, the "TERMINATION Date"):
(a) by mutual written consent of Purchaser and the Company;
(b) by either Purchaser or the Company, if the First Acceptance Time shall not have occurred on or before May 15, 2007; PROVIDED, HOWEVER, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the First Acceptance Time to occur on or before such date;
(c) by either Purchaser or the Company, if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any legally binding injunction, order, decree or ruling (whether temporary, preliminary or permanent) or taken any other action (including the failure to have taken an action) which has become final and non-appealable and has the effect of making consummation of the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger;
(d) by Purchaser, if neither Purchaser nor Merger Sub is in material breach of any of its representations, warranties or covenants under this Agreement, and if (i) any of the representations or warranties of the Company herein become untrue or inaccurate such that the condition set forth in paragraph (f) of Annex A would not be satisfied, (ii) there has been a breach on the part of the Company of any of its covenants or agreements herein such that the condition set forth in paragraph (g) of Annex A would not be satisfied, and such breach (if curable) has not been cured within twenty (20) days after written notice of termination to the OptionorCompany or (iii) the Company has breached in any material respect any of the provisions of Section 4.8(b), (c), (d) or (e);
(e) by the Company, if the Company is not in material breach of any of its representations, warranties or covenants under this Agreement, and if (i) any of the representations or warranties of Purchaser or Merger Sub herein become untrue or inaccurate, except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "materiality" or "Material Adverse Effect" set forth therein) would not be reasonably expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect on the date of this Agreement and as of the expiration of the Offer, as if made at and as of such date (except to the extent expressly made as of an earlier date, in which case as of such date), or (ii) either Purchaser or Merger Sub shall have failed to perform in any material respect its obligations or to comply in any material respect with its agreements or covenants to be performed or complied with by it under this Agreement, and such breach (if curable) has not been cured within twenty (20) days after written notice to Purchaser;
(f) by Purchaser, if the Board shall have (i) withdrawn or modified, in a manner adverse to Purchaser, Merger Sub or any of their respective affiliates, its approval or recommendation of the Offer, this Agreement or the Merger or (ii) recommended or approved, or proposed publicly to recommend or approve, any Company Takeover Proposal or any Company Acquisition Agreement relating to any Company Takeover Proposal or (iii) resolved to do any of the foregoing; or
(bg) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time Company, if the Board shall have withdrawn or modified in a manner adverse to time.
8.02 Notwithstanding Purchaser, Merger Sub or any other provision of their respective affiliates its approval or recommendation of the Offer, this Agreement or the Merger in compliance with Section 4.8(e) of this Agreement; PROVIDED, if at however, that any time during the term such purported termination pursuant to this Section 7.1(g) shall be void and of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of unless the first Business Day immediately following Company concurrently with such termination pays to Purchaser the Commencement DateCompany Termination Fee and the Termination Expenses in accordance with Section 7.3.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Merger Agreement (WHX Corp), Merger Agreement (Steel Partners Ii Lp), Merger Agreement (Steel Partners Ii Lp)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing:
(a) it shall have first given to the Optionee a notice of default containing particulars by mutual written consent of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andAcquiror Parties and Contributor;
(b) by the Optionee Acquiror Parties, if any of the representations or warranties of the Contributed Parties, Contributor, the Contributor Group or Retail Parent set forth in Article 3, Article 4 and Article 5 shall not be true and correct or if any of Retail Parent or Contributor has not, within twenty-two (22) days following delivery failed to perform any covenant or agreement on the part of such Party set forth in this Agreement (including an obligation to consummate the Closing) such that the condition to Closing set forth in either Section 8.2(a) or Section 8.2(b) would not be satisfied and the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, are not cured within twenty (20) calendar days after written notice thereof is delivered to Contributor; provided that neither of defaultthe Acquiror Parties or SUN LLC is then in breach of this Agreement so as to cause the condition to Closing set forth in either Section 8.3(a) or Section 8.3(b) from being satisfied;
(c) by Contributor, cured if any of the representations or warranties of Acquiror set forth in Article 6 shall not be true and correct or if (i) any Acquiror Party has failed to perform any covenant or agreement on the part of such default.
8.03 Should Acquiror Party set forth in this Agreement (including an obligation to consummate the Optionee fail Closing), or (ii) Acquiror has failed to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without cause SUN LLC to perform any further notice, may thereafter terminate covenant or agreement which Acquiror was required to cause SUN LLC to perform as set forth in this Agreement, such that the condition to Closing set forth in either Section 8.3(a) or Section 8.3(b) would not be satisfied and the provisions breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant or agreement, as applicable, are not cured within twenty (20) calendar days after written notice thereof is delivered to the Acquiror Parties; provided that none of paragraph 8.06 hereof shall Contributor or Retail Parent is then apply.
8.04 Notwithstanding any other provision in breach of this Agreement so as to cause the condition to Closing set forth in Section 8.2(a) or Section 8.2(b) from being satisfied;
(d) by either the Acquiror Parties, on the one hand, or Contributor, on the other hand, if the transactions contemplated by this Agreement shall not have been consummated on or prior to May 13, 2016 (the “Termination Date”) and the Parties seeking to terminate this Agreement pursuant to this Section 9.1(d) shall not have breached in any material respect their respective obligations under this Agreement in any manner that shall have proximately caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date; or
(e) by either the Acquiror Parties, on the one hand, or Contributor, on the other hand, if any Governmental Entity shall have issued an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement and such Order or other action shall have become final and non-appealable; provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment Parties seeking to the Optionor prior terminate this Agreement pursuant to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but this Section 9.1(e) shall have the right of access used commercially reasonable efforts to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneeremove such Order.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Contribution Agreement, Contribution Agreement (Energy Transfer Partners, L.P.), Contribution Agreement
Termination. 8.01 This Agreement shall terminatemay be terminated prior to the First Effective Time (whether before or after the receipt of the Required Company Stockholder Vote or the Required Parent Stockholder Vote, except to the extent otherwise provided below) as follows:
(a) at any time prior to by mutual written consent of Parent, Merger Subs and the First Option Deadline, by the Optionee giving notice of termination to the Optionor; orCompany;
(b) subject to paragraph 8.02, in by either Parent or the event Company if the First Option is Merger shall not exercised have been consummated by the First Option Deadline from time End Date; provided, however, that the right to time.
8.02 Notwithstanding any terminate this Agreement under this Section 9.1(b) (Termination) shall not be available to the Company, on the one hand, or to Parent, on the other provision hand, if such Party’s action or failure to act has been a principal cause of the failure of the Merger to occur on or before the End Date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body of competent jurisdiction shall have issued a final and non-appealable order, decree or ruling, in each case, having the effect of permanently restraining, enjoining or otherwise prohibiting or making illegal the Merger; provided, however, that the right to terminate this Agreement under this Section 9.1(c) (Termination) shall not be available to the Company, on the one hand, or to Parent, on the other hand, if at such Party did not use commercially reasonable efforts to have such order, decree or ruling vacated prior to its becoming final and non-appealable and such failure to use commercially reasonable efforts constitutes a breach of this Agreement;
(d) by Parent, if the Company shall have breached or failed to perform any time during the term of the First Optionits representations, the Optionee fails warranties, covenants, obligations or agreements contained in this Agreement, which breach or failure to advance perform (i) would give rise to the Optionor any cash payment failure of a condition set forth in Section 7.1 (Accuracy of Representations and Warranties) or shares required under sub-paragraph 4.02(aSection 7.2 (Performance of Covenants) hereofand (ii) cannot be, or has not been, cured within 30 calendar days following receipt by the Company of written notice of such material breach or failure to perform; provided that Parent may not terminate this Agreement pursuant to this Section 9.1(d) (Termination) if Parent is in breach of this Agreement such that the Company has the right to terminate this Agreement pursuant to Section 9.1(e) (Termination) but for the provision thereto;
(e) by the Company, if Parent or Merger Subs shall have breached or failed to perform any covenantof their respective representations, representation warranties, covenants, obligations or warranty agreements contained herein, the Optionor may terminate in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 8.1 (Accuracy of Representations and Warranties) or Section 8.2 (Performance of Covenants) and (ii) cannot be, or has not been, cured within 30 calendar days following receipt by Parent of written notice of such material breach or failure to perform; provided that the Company may not terminate this Agreement pursuant to this Section 9.1(e) (Termination) if the Company is in breach of this Agreement such that Parent has the right to terminate this Agreement pursuant to Section 9.1(d) (Termination) but only if:for the proviso thereto;
(af) it (i) by Parent if, upon a vote at a duly held meeting to obtain the Required Parent Stockholder Vote, the Required Parent Stockholder Vote shall not have first given been obtained, or (ii) by the Company, if upon a vote at a duly held meeting to obtain the Required Company Stockholder Vote, the Required Company Stockholder Vote shall not have been obtained; provided, however, in each case, the right to terminate shall not be available to the Optionee Parent or the Company, as the case may be, if either Party’s action or failure to act (which action or failure to act constitutes a notice breach by such Party of default containing particulars of this Agreement) has been the payment not advanced or shares not issuedcause of, or resulted in, the covenant, representation failure to obtain the Requisite Parent Stockholder Approval or warranty breachedRequisite Company Stockholder Approval; and
(bg) by Parent, if the Optionee has notCompany Board (or a committee thereof) makes a Company Adverse Change Recommendation.
(h) by the Company as described in Section 5.2(b)(i). The Party desiring to terminate this Agreement pursuant to Section 9.1 (Termination), within twenty-two (22) days following delivery shall give the other Party written a notice of such notice of defaulttermination, cured such default.
8.03 Should the Optionee fail to comply with specifying the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, hereof pursuant to which such termination is made and the provisions of paragraph 8.06 hereof shall then applybasis therefor described in reasonable detail.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.)
Termination. 8.01 This Agreement shall terminatemay be terminated and the transactions contemplated hereby abandoned:
(a) by written consent of the Company and OmniLit;
(b) by written notice by either the Company or OmniLit if any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which has become final and non-appealable and has the effect of making consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger;
(c) by written notice by either the Company or OmniLit if the OmniLit Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the OmniLit Stockholders’ Meeting duly convened therefor or at any time prior adjournment or postponement thereof;
(d) by the Company or OmniLit by written notice to the First Option Deadlineother party if the consummation of the transactions contemplated by this Agreement shall not have occurred on or before nine (9) months after the date of this Agreement (the “Outside Date”); provided, that the right to terminate this Agreement under this Section 10.1(d) shall not be available to either party that has materially breached any of its representations, warranties, covenants or agreements under this Agreement and such material breach is the primary cause of or has resulted in the failure of the Merger to be consummated on or before such date;
(e) by written notice to the Company from OmniLit if (i) there is any breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, such that the conditions specified in Section 9.2(a), Section 9.2(b) or Section 9.2(d) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, other than with respect to Section 9.2(d) which cannot be cured, if such Terminating Company Breach is curable by the Optionee giving Company through the exercise of its reasonable best efforts, then, for a period of up to 30 days (or such shorter period of time that remains between the date OmniLit provides written notice of such breach and the Agreement End Date) after receipt by the Company of notice from OmniLit of such breach, but only as long as the Company continues to use its reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, or (ii) the Closing has not occurred on or before nine (9) months after the date of this Agreement (the “Agreement End Date”), unless OmniLit is in material breach hereof so as to prevent the conditions specified in Section 9.2(a) or Section 9.2(b) from being satisfied;
(f) by written notice to the OptionorCompany from OmniLit if the Company Stockholder Approvals shall not have been obtained and delivered to OmniLit within five (5) Business Days after the Registration Statement has been declared effective by the SEC and delivered or otherwise made available to stockholders;
(g) by written notice to OmniLit from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of OmniLit or Merger Sub set forth in this Agreement, such that the conditions specified in Section 9.3(a) and Section 9.3(b) would not be satisfied at the Closing (a “Terminating OmniLit Breach”), except that, if any such Terminating OmniLit Breach is curable by OmniLit through the exercise of its reasonable best efforts, then, for a period of up to 30 days (or such shorter period of time that remains between the date the Company provides written notice of such breach and the Agreement End Date) after receipt by OmniLit of notice from the Company of such breach, but only as long as OmniLit continues to exercise such reasonable best efforts to cure such Terminating OmniLit Breach (the “OmniLit Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating OmniLit Breach is not cured within the OmniLit Cure Period or (ii) the Closing has not occurred on or before the Agreement End Date, unless the Company is in material breach hereof so as to prevent the conditions specified in Section 9.2(a) or Section 9.2(b) from being satisfied; or
(bh) subject by written notice to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies OmniLit from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the OptioneeCompany following a Modification in Recommendation.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02Effective Time, in the event case of Buyer, or prior to the First Option is not exercised purchase of DOCP Shares under the Offer, in the case of DOCP, whether before or after approval of this Agreement and the Merger by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision shareholders of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifDOCP:
(a) it shall have first given to by mutual consent of DOCP and Buyer;
(i) by Buyer upon a breach of any covenant or agreement on the Optionee a notice part of default containing particulars of the payment DOCP set forth in this Agreement which has not advanced or shares not issuedbeen cured, or the covenant, if any representation or warranty breached; and
(b) of DOCP shall have become untrue, in either case, such that such breach or untruth is incapable of being cured within 30 days after the Optionee has not, within twenty-two (22) days following delivery giving of written notice to DOCP of such notice breach or untruth, provided that such breach or untruth is material and that Buyer is not then in material breach of defaultthis Agreement or (ii) by DOCP in the event of a breach of any representation, cured such default.
8.03 Should the Optionee fail to comply with the provisions warranty, agreement or covenant of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate Buyer set forth in this Agreement, in any case, such that such breach has not been cured within 30 days after the giving of written notice to Buyer of such breach or untruth and will prevent consummation of the Merger, provided that DOCP is not then in material breach of this Agreement;
(c) by either Buyer or DOCP, if any permanent injunction or action by any Governmental Entity preventing the consummation of the Merger shall have become final and nonappealable, provided that the party seeking to terminate this Agreement pursuant to this clause (c) shall have used all reasonable efforts to prevent the entry of and to remove such permanent injunction or action;
(d) by either Buyer or DOCP, if the Merger shall not have been consummated before June 30, 1998, provided that the right to terminate this Agreement pursuant to this clause (d) shall not be available to any party whose failure to perform any of its obligations hereunder results in the failure of the Merger to be consummated by such date;
(e) by Buyer (i) if the DOCP Board or any committee thereof shall withdraw, modify or change its recommendation so that it is not in favor of this Agreement, the Offer or the Merger (or make any recommendation in favor of an Alternative Transaction) or shall have resolved to do any of the foregoing or (ii) if DOCP shall take any action that would be proscribed by Section 6.2 of this Agreement but for the exceptions contained in the provisions thereof; or
(f) by Buyer if the DOCP Board or any committee thereof shall have approved or entered into an agreement respecting a Superior Proposal or recommended or resolved to recommend to its shareholders a Superior Proposal, or by DOCP in connection with the DOCP Board or any committee thereof approving or entering into an agreement respecting a Superior Proposal, provided that, in the case of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision such termination by DOCP, simultaneously with such termination, DOCP complies with Section 8.5(b) of this Agreement and provided prior thereto has complied with Section 6.2 of this Agreement and provided, further, that the Optionee has exercised the First Optionparty seeking to terminate under this clause (f) is not then in material breach of this Agreement. The right of any party hereto to terminate this Agreement pursuant to this Section shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any party hereto, if Optionee has not advanced the Second Option Payment to the Optionor any person controlling any such party, or any of their respective officers or directors, whether prior to or after the commencement execution of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Datethis Agreement.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Delaware Otsego Corp), Merger Agreement (Norfolk Southern Corp), Merger Agreement (Delaware Otsego Corp)
Termination. 8.01 This Agreement may be terminated and the Merger may be abandoned at any time before the Effective Time, whether before or after Subsidiary shall terminatehave accepted for payment and paid for all Shares validly tendered and not withdrawn pursuant to the Offer or after the Company Shareholder Approval (if required by applicable law) only:
(a) at any time prior to by mutual written consent of the First Option Deadline, by the Optionee giving notice of termination to the Optionor; orparties;
(b) subject by either Parent or the Company:
(i) if the purchase of the Shares pursuant to the Offer shall not have occurred on or prior to the close of business on April 30, 2005 (the “Outside Date“); provided, however, that the right to terminate this Agreement pursuant to this paragraph 8.02(b)(i) shall not be available to any party whose failure to perform any of its obligations under this Agreement has been the cause of, in the event the First Option is or resulted in, such purchase not exercised by the First Option Deadline from time to time.occurring before such date;
8.02 Notwithstanding (ii) if any Governmental Authority shall have issued an order, decree or ruling or taken any other provision action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this paragraph (b)(ii) shall not be available to any party whose failure to comply with Section 6.5 has caused or primarily resulted in such action by such Governmental Authority;
(iii) if the representations and warranties of the other party contained in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect or any similar standard or qualification (except for the representations and warranties contained in Section 4.6(i), for which such qualifiers shall not be disregarded), shall not be true and correct, with only such exceptions as, individually or in the aggregate, have not had a Material Adverse Effect; provided, however, if at any time during such failure to be true and correct is curable on or before the term Outside Date, then only upon the failure of the First Optionother party to cure such breach within 20 calendar days after receipt of written notice thereof or if such failure could not reasonably be expected to be cured within such 20 calendar days and the other party promptly commences an action to cure after receipt of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Date;
(iv) if the other party shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement; provided, however, if a breach or failure is curable on or before the Optionee fails Outside Date, then only upon the failure of the other party to advance cure such breach within 20 calendar days after receipt of written notice thereof or if such breach or failure could not reasonably be expected to be cured within such 20 calendar days and the other party promptly commences an action to cure after receipt of notice and diligently prosecutes such cure to completion as promptly as practicable but in no event later than the Outside Date.
(c) by Parent if before the purchase of the Shares pursuant to the Optionor Offer, (i) the board of trustees of the Company or any cash payment committee thereof shall have (x) withdrawn or shares required under sub-paragraph 4.02(a) hereof, modified in a manner adverse to Parent or is in breach Subsidiary its approval or recommendation of any covenant, representation the Merger or warranty contained herein, the Optionor may terminate other transactions contemplated by this Agreement, but only if:
(ay) it approved or recommended any Takeover Proposal or (z) failed to reaffirm its recommendation of the Merger and the other transactions contemplated by this Agreement within five business days after the public announcement of a Takeover Proposal (including the filing of a Schedule 13D with the SEC) or (ii) the board of trustees of the Company or any committee thereof shall have first given resolved to the Optionee a notice of default containing particulars take any of the payment not advanced or shares not issued, or the covenant, representation or warranty breachedforegoing actions; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.or
Appears in 3 contracts
Sources: Merger Agreement (Istar Financial Inc), Merger Agreement (Istar Financial Inc), Merger Agreement (Istar Financial Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and abandoned at any time prior to the First Option DeadlineClosing Date (as defined below), by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifas follows:
(a) it shall have first given to by the Optionee a notice mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andMerchants and PR;
(b) by either of PR or Merchants by written notice to the Optionee other:
(i) if any Governmental Authority of competent jurisdiction shall have issued an order, decree, judgment or injunction or taken any other action that permanently restrains, enjoins or otherwise prohibits or makes illegal the consummation of the Stock Purchase, and such order, decree, judgment, injunction or other action shall have become final and non-appealable or if any consent or approval of any Governmental Authority whose consent or approval is required to consummate the Stock Purchase has notbeen denied and such denial has become final and non-appealable; or
(ii) if the consummation of the Stock Purchase shall not have occurred on or before March 31, within twenty-two 2018 (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail “Outside Date”); provided that the right to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions Agreement under this Section 9.01 (b)(ii) shall not be available to any party whose breach of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that causes the Optionee has exercised failure of the First OptionStock Purchase to occur on or before the Outside Date;
(c) by written notice from Merchants to PR, if Optionee has if:
(i) any event shall have occurred which is not advanced the Second Option Payment to the Optionor capable of being cured prior to the commencement Outside Date and would result in any condition set forth in Section 8.01 not being satisfied prior to the Outside Date;
(ii) PR breaches or fails to perform any of Commercial Production its representations, warranties or covenants contained in this Agreement, which breach or failure to perform would give rise to the failure of a condition set forth in Section 8.01, and such condition is incapable of being satisfied by the Outside Date or such breach has not been cured by PR within twenty (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect 20) business days after PR’s receipt of written notice of such breach from Merchants;
(iii) there has been a Material Adverse Effect on JSB as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after terminationEffective Time, but shall have the right as compared to that in existence as of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; andthis Agreement;
(biv) ensure the JSB Board of Directors shall approve any JSB Acquisition Proposal or publicly recommend that the Optionor is provided with copies holders of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work JSB stock accept or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.approve any JSB Acquisition Proposal; or
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Merchants Bancorp), Stock Purchase Agreement (Merchants Bancorp)
Termination. 8.01 This Agreement shall terminatemay be terminated at any time ----------- prior to the Effective Time, notwithstanding approval thereof by the stockholders of the Company or the stockholders of Parent:
(a) at any time prior to the First Option Deadline, by mutual written consent duly authorized by the Optionee giving notice Boards of termination to Directors of Parent and the OptionorCompany; or
(b) subject to paragraph 8.02by either Parent or the Company if the Merger shall not have been consummated by April 30, 1998 (PROVIDED that such date shall be extended by an additional 30 days in the event the First Option is Prospectus/Proxy Statement shall have been mailed to stockholders of both the Company and Parent by such date; and PROVIDED, FURTHER, that the right to terminate this Agreement under this SECTION 9.01(b) shall not exercised be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of or resulted in the failure of the Merger to occur on or before such date); or
(c) by either Parent or the First Option Deadline from time to time.
8.02 Notwithstanding Company if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued a nonappealable final order, decree or ruling or taken any other provision action having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger (PROVIDED that the right to terminate this Agreement under this SECTION 9.01(c) shall not be available to any party who has not complied with its obligations under SECTION 7.09 and such noncompliance materially contributed to the issuance of any such order, decree or ruling or the taking of such action); PROVIDED, FURTHER, that for the purposes of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”SECTION 9.01(c), a temporary injunction restraining, enjoining or otherwise prohibiting the Second Option Merger shall automatically lapse and be or no further force or deemed to be a nonappealable final order hereunder if such injunction remains continuously in effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time for 60 days after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of terminationissuance thereof; andand PROVIDED, FURTHER, that during such period all obligations of the Company or Parent to expend funds or incur monetary obligations in connection with the transactions contemplated hereby shall be suspended; or
(bd) ensure by Parent or the Company, if: (i) the Board of Directors of the Company shall have recommended to the stockholders of the Company an Alternative Transaction (as defined below) or (ii) a tender offer or exchange offer for 15% or more of the outstanding shares of Company Common Stock is commenced (other than by Parent or an affiliate of Parent) and the Board of Directors of the Company recommends that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities stockholders of the Optionee on Company tender their shares in such tender or exchange offer; PROVIDED that the Property which had theretofore Company shall not been delivered be entitled to exercise any termination rights under clause (i) or (ii) of this SECTION 9.01(d) unless (x) any action of the Optionor.Board of Directors of the Company referred to in either such clause is required to be taken by the Board of Directors in order to properly discharge its fiduciary duties to its stockholders and (y) the Company has complied with its obligations in SECTION 6.03; or
Appears in 3 contracts
Sources: Merger Agreement (Premiere Technologies Inc), Merger Agreement (Xpedite Systems Inc), Merger Agreement (Premiere Technologies Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, notwithstanding adoption thereof by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifStockholders:
(a) it shall have first given to by mutual written consent of Parent and the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany;
(b) by Parent or the Optionee Company if any court of competent jurisdiction or other Governmental Entity having jurisdiction over the Company shall have issued a final order, decree or ruling or taken any other final action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to the party seeking to terminate if such party or any of its Subsidiaries has not, within twenty-two (22) days following delivery of failed to take such notice of default, cured such default.
8.03 Should the Optionee fail actions with respect thereto as are required to comply with Section 6.8;
(c) by Parent if the provisions of sub-paragraph 8.02(b) hereofMerger shall not have been consummated on or before September 15, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production 2008 (the “Commencement Parent Termination Date”), or by the Second Option Company if the Merger shall automatically lapse and not have been consummated on or before September 30, 2008 (the “Company Termination Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to the party seeking to terminate if any action of such party or no further force any of its Subsidiaries or effect as the failure of such party or any of its Subsidiaries to perform any of its obligations under this Agreement required to be performed at or prior to the Effective Time has been the cause of, or resulted in, the failure of the first Effective Time to occur on or before the Parent Termination Date or the Company Termination Date, as applicable;
(d) by the Company if there shall have been a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub contained in this Agreement such that any condition set forth in subsection (a) or (b) of Section 7.3 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Day immediately Days following written notice of such breach to Parent and (B) the Commencement Company Termination Date.
8.05 The Optionee ; provided that the Company shall vacate the Property within a reasonable time after termination, but shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if the Company is then in material breach of access to the Property for three any of its covenants or agreements contained in this Agreement;
(3e) months following termination for the purpose by Parent if there shall have been a breach of removing its buildingsany representation, plantwarranty, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances covenant or supplies agreement on the Property beyond this three (3) month period after termination at the absolute discretion part of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If Company contained in this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
such that any condition set forth in subsection (a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure of Section 7.2 would not be satisfied and, in either such case, such breach is not curable or shall not have been cured prior to the earlier of (A) ten (10) Business Days following written notice of such breach to the Company and (B) the Parent Termination Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(e) if Parent or Merger Sub is then in material breach of any of its covenants or agreements contained in this Agreement; or
(f) by Parent at any time prior to the date and time that the Optionor Company Requisite Vote is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core obtained and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities a copy of the Optionee on the Property which had theretofore not been written consent is delivered to the OptionorParent.
Appears in 3 contracts
Sources: Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.), Merger Agreement (Gordmans Stores, Inc.)
Termination. 8.01 This Notwithstanding anything in this Agreement shall terminateto the contrary, this Agreement and the Acquisition contemplated hereby will be terminated, in cases (a) through (f) below, by written notice given at any time prior to the Closing (whether before or after the date of approval by the shareholders of Seller), and automatically, in case (g) below:
(a) by mutual written consent of Buyer and Seller;
(b) by either Buyer or Seller, if the Closing has not occurred on or before December 31, 2000 (the "Stated Termination Date"); provided that the Stated Termination Date shall be automatically extended for three months if, on December 31, 2000 (i) any of the Consents of Governmental Entities described in Section 3.4 have not been obtained or waived, (ii) each of the other conditions to the consummation of the Acquisition has been satisfied or waived or remains capable of satisfaction and (iii) any such Consent that has not yet been obtained is being pursued diligently and in good faith; provided further that the right to terminate this Agreement shall not be available to any party whose breach of any provision of this Agreement shall have proximately contributed to the failure of the Closing to have occurred by such time;
(c) by either Buyer or Seller, if a material breach of any provision of this Agreement has been committed by the other party, such breach has not been waived and, if such breach is capable of being cured, the other party has not cured such breach fifteen (15) Business Days following receipt of notice of such breach from either Buyer or Seller, as the case may be; provided, however, that termination pursuant to this Section 8.1(c) shall not relieve the breaching party of liability for such breach or otherwise;
(d) by either Buyer or Seller, if any Governmental Entity shall have issued, enacted, entered, promulgated or enforced any Order, or taken any other action restraining, enjoining, disapproving, denying or otherwise prohibiting the Acquisition or the consummation of any other transactions contemplated by this Agreement and such Order or other action shall have become final and non-appealable, provided that the right to terminate this Agreement pursuant to this Section 8.1(d) shall not be available to any party that has failed to fully comply with its obligations hereunder in any manner that shall have proximately contributed to the occurrence of such Order;
(e) by either Buyer or Seller, if the approval of the shareholders of Seller shall not have been obtained at the Shareholders Meeting;
(f) by Buyer, if the board of directors of Seller shall have failed to recommend or shall have withdrawn or adversely modified or qualified its recommendation of this Agreement, shall have failed to reconfirm its recommendation of this Agreement within five business days after a written request by Buyer to do so, or shall have recommended to shareholders of Seller an Acquisition Proposal; or
(g) at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision shareholder approval of this Agreement, automatically if at any time during the term (i) Seller is not then in violation of Sections 5.2 and 5.22 and of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach first sentence of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
Section 5.23 (a) it shall have first given and (ii) Seller is entering into a legally binding agreement to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or give effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorSuperior Proposal.
Appears in 3 contracts
Sources: Purchase Agreement (Hipp W Hayne), Purchase Agreement (Liberty Corp), Purchase Agreement (Royal Bank of Canada)
Termination. 8.01 This At any time prior to the Closing, this Agreement shall terminatemay be terminated and the transactions contemplated hereby abandoned:
(a) by the mutual consent of Buyer and Seller as evidenced in writing and signed by each of Buyer and Seller;
(b) by Buyer, (i) by written notice to Seller, if (A) Seller has breached its representations, warranties, covenants or obligations hereunder and such breach would or does result in the failure of any condition expressly set forth in Article IX, and (B) such breach has not been cured within 30 days following written notification to Seller thereof; provided, however, that if, at the end of such 30 day period, Seller is endeavoring in good faith, and proceeding diligently, to cure such breach, Seller shall have an additional 30 days in which to effect such cure, or (ii) if the conditions to the obligations of Seller at the Closing have been satisfied, and Seller fails to close;
(c) by Seller, (i) by written notice to Buyer, if (A) Buyer has breached its representations, warranties, covenants or obligations hereunder and such breach would or does result in the failure of any condition expressly set forth in Article IX, and (B) such breach has not been cured within 30 days following written notification to Buyer thereof; provided, however, that if, at the end of such 30 day period, Buyer is endeavoring in good faith, and proceeding diligently, to cure such breach, Buyer shall have an additional 30 days in which to effect such cure or (ii) if the conditions to the obligations of Buyer at the Closing have been satisfied, and Buyer fails to close;
(d) at any time prior before the Closing, by either Seller or Buyer, by written notice to the First Option Deadlineother Party, by in the Optionee giving notice event that any Law or final, non-appealable Order restrains, enjoins or otherwise prohibits or makes illegal the sale of termination the Transferred Interests pursuant to the Optionorthis Agreement; or
(e) by either Party, at such Party’s option, at any time following two (2) Business Days after the Outside Termination Date; provided, however, that no Party shall have the right to terminate this Agreement pursuant to subsections (b), (c), (d) subject to paragraph 8.02, or (e) above if such Party or its Affiliates are at such time in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding material breach of any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 3 contracts
Sources: Membership Interest Purchase Agreement (Energy Transfer Partners, L.P.), Membership Interest Purchase Agreement (Sunoco Logistics Partners L.P.), Membership Interest Purchase Agreement (Enbridge Energy Partners Lp)
Termination. 8.01 (1) This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, Effective Date:
(a) by mutual written agreement of the Optionee giving notice of termination to the OptionorParties; or
(b) subject by either Party, if:
(i) the Effective Date shall not have occurred on or before the Outside Date, except that the right to paragraph 8.02terminate this Agreement under this Section 7.2(1)(b) shall not be available to any Party whose failure to fulfill any of its obligations or its breach of any of its representations and warranties under this Agreement has been the principal cause of, or resulted in, the failure of the Effective Time to occur by the Outside Date;
(ii) after the date hereof, there shall be enacted or made any Law or there shall exist any Order that makes consummation of the Arrangement illegal or otherwise restricts, prohibits or enjoins Aphria or Tilray from consummating the Arrangement and such Law or Order shall have become final and non-appealable, provided that the Party seeking to terminate this Agreement under this Section 7.2(1)(b)(ii) shall have used its commercially reasonable efforts to, as applicable, appeal or overturn such Law or otherwise have prevented the entry of or remove or lift such Order and shall not otherwise be in material breach of this Agreement;
(iii) the Arrangement Resolution shall not have been passed by the Aphria Shareholders at the Aphria Meeting in accordance with the Interim Order; or
(iv) the Tilray Resolutions shall not have been passed by the Tilray Shareholders at the Tilray Meeting in accordance with Law; or
(c) by Tilray, if:
(i) the Aphria Board (or any committee thereof) (A) fails to unanimously recommend or withdraws, amends, modifies or qualifies (or proposes publicly to withdraw, amend, modify or qualify), in a manner adverse to Tilray, the event Aphria Board Recommendation, (B) accepts, approves, endorses or recommends, or publicly proposes to accept, approve, endorse or recommend an Acquisition Proposal or takes no position or remains neutral, in each case, with respect to a publicly announced or otherwise publicly disclosed Acquisition Proposal for more than five Business Days (or beyond the First Option third Business Day prior to the Aphria Meeting, if sooner), (C) accepts, approves, executes or enters into, or causes Aphria or any of its Subsidiaries to accept, approve, execute or enter into, or publicly proposes to accept, approve, execute or enter into, or to cause Aphria or any of its Subsidiaries to accept, approve, execute or enter into, any agreement, letter of intent, agreement in principle, agreement, arrangement or understanding in respect of an Acquisition Proposal (other than a confidentiality and standstill agreement contemplated under Section 5.3(1)(d)), (D) fails to affirm publicly and without qualification the Aphria Board Recommendation within five (5) Business Days following the public announcement of an Acquisition Proposal in respect of Aphria and the written request by Tilray to provide such reaffirmation, provided that if such request is made fewer than five (5) Business Days prior to the Aphria Meeting, then, notwithstanding the foregoing, the Aphria Board in receipt of such request shall have to make such affirmation as soon as practicable prior to the Aphria Meeting, it being further agreed that no such request for such affirmation shall be made except once per publicly announced Acquisition Proposal or material modification of such Acquisition Proposal, or (E) resolves to take any of the prohibited actions above (each, being an “Aphria Change in Recommendation”);
(ii) prior to the approval by the Tilray Shareholders of the Tilray Resolutions, the Tilray Board authorizes Tilray to enter into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 5.3(1)(d)) with respect to a Superior Proposal in accordance with Section 5.4, provided Tilray is then in compliance with Article 5 in all material respects and that prior to or concurrent with such termination Tilray pays the Tilray Termination Amount in accordance with Section 7.3;
(iii) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Aphria under this Agreement occurs that would cause any condition in Section 6.2(a) [Aphria Covenants Condition] or Section 6.2(b) [Aphria Reps and Warranties Condition] not to be satisfied, and such breach or failure is incapable of being cured on or prior to the Outside Date or is not exercised by cured in accordance with the First Option Deadline from time terms of Section 6.5(2), provided that any Wilful Breach shall be deemed incapable of being cured; provided that Tilray is not then in breach of this Agreement so as to time.cause any condition in Section 6.3(a) [Tilray Covenants Condition] or Section 6.3(b) [Tilray Reps and Warranties Condition] not to be satisfied;
8.02 Notwithstanding (iv) Aphria breaches Article 5 in any other provision material respect; or
(v) after the date of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance there shall occur or be disclosed to the Optionor public (if previously undisclosed to the public) any cash payment or shares required under sub-paragraph 4.02(aMaterial Adverse Effect in respect of Aphria; or
(d) hereofby Aphria, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(ai) it the Tilray Board (or any committee thereof) (A) fails to unanimously recommend or withdraws, amends, modifies or qualifies (or proposes publicly to withdraw, amend, modify or qualify), in a manner adverse to Aphria, the Tilray Board Recommendation, (B) accepts, approves, endorses or recommends, or publicly proposes to accept, approve, endorse or recommend an Acquisition Proposal or takes no position or remains neutral, in each case, with respect to a publicly announced or otherwise publicly disclosed Acquisition Proposal for more than five Business Days (or beyond the third Business Day prior to the Aphria Meeting, if sooner), (C) accepts, approves, executes or enters into, or causes Tilray or any of its Subsidiaries to accept, approve, execute or enter into, or publicly proposes to accept, approve, execute or enter into, or to cause Tilray or any of its Subsidiaries to accept, approve, execute or enter into, any agreement, letter of intent, agreement in principle, agreement, arrangement or understanding in respect of an Acquisition Proposal (other than a confidentiality and standstill agreement contemplated under Section 5.3(1)(d)), (D) fails to affirm publicly and without qualification the Tilray Board Recommendation within five (5) Business Days following the public announcement of any Acquisition Proposal in respect of Tilray and the written request by Aphria to provide such reaffirmation, provided that if such request is made fewer than five (5) Business Days prior to the Tilray Meeting, then, notwithstanding the foregoing, the Aphria Board in receipt of such request shall have first given make such affirmation as soon as practicable prior to the Optionee a notice Tilray Meeting, it being further agreed that no such request for such affirmation shall be made except once per publicly announced Acquisition Proposal or material modification of default containing particulars such Acquisition Proposal, or (E) resolves to take any of the payment not advanced prohibited actions above (each, being an “Tilray Change in Recommendation”);
(ii) prior to the approval by the Aphria Shareholders of the Arrangement Resolution, the Aphria Board authorizes Aphria to enter into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 5.3(1)(d)) with respect to a Superior Proposal in accordance with Section 5.4, provided Aphria is then in compliance with Article 5 in all material respects and that prior to or shares not issued, or concurrent with such termination Aphria pays the covenant, Aphria Termination Amount in accordance with Section 7.3;
(iii) a breach of any representation or warranty breachedor failure to perform any covenant or agreement on the part of Tilray under this Agreement occurs that would cause any condition in Section 6.3(a) [Tilray Covenants Condition] or Section 6.3(b) [Tilray Reps and Warranties Condition] not to be satisfied, and such breach or failure is incapable of being cured on or prior to the Outside Date or is not cured in accordance with the terms of Section 6.5(2), provided that any Wilful Breach shall be deemed incapable of being cured; andprovided that Aphria is not then in breach of this Agreement so as to cause any condition in Section 6.2(a) [Aphria Covenants Condition] or Section 6.2(b) [Aphria Reps and Warranties Condition] not to be satisfied;
(iv) Tilray breaches Article 5 in any material respect; or
(v) after the date of this Agreement, there shall occur or be disclosed to the public (if previously undisclosed to the public) any Material Adverse Effect in respect of Tilray.
(2) The Party desiring to terminate this Agreement pursuant to this Section 7.2 (other than pursuant to Section 7.2(1)(a)) shall give written notice of such termination to the other Party, specifying in reasonable detail the basis for such Party’s exercise of its termination right.
(3) If this Agreement is terminated pursuant to Section 7.1 (as a result of the Effective Time occurring) or Section 7.2, this Agreement shall become void and of no effect without liability of any Party (or any shareholder, director, officer, employee, agent, consultant or representative of such Party) to any other Party hereto except that: (a) in the event of termination under Section 7.1 (as a result of the Effective Time occurring), this paragraph, Section 4.6 and Section 6.6 shall survive for a period of six years following such termination; and (b) in the Optionee has notevent of termination under Section 7.2, within twenty-two (22) days following delivery of such notice of defaultthis paragraph, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereofSection 4.6, the OptionorSection 7.3, without any further notice, may thereafter terminate this Agreement, Section 7.4 and Article 8 and the provisions of paragraph 8.06 hereof the Confidentiality Agreement shall then apply.
8.04 Notwithstanding survive, and provided further that, notwithstanding anything to the contrary contained in this Agreement, no Party shall be relieved of any other provision liability for any Wilful Breach by it of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement DateAgreement.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Arrangement Agreement (Tilray, Inc.), Arrangement Agreement (Aphria Inc.)
Termination. 8.01 This Agreement shall terminate:may be terminated at any time before the Effective Time as follows;
(a) at any time prior to the First Option Deadline, by the Optionee giving notice mutual written consent of termination to the Optionor; oreach of Seller and Purchaser;
(b) subject to paragraph 8.02by either Seller or Purchaser, if the Effective Time shall not have occurred on or before June 30, 2005 (the "Termination Date"); provided, however, that in the event the First Option is FTC or DOJ issues a "second request" in connection with any review of the transactions contemplated by this Agreement under the HSR Act, such date shall be extended to September 30, 2005; provided further, however, that the right to terminate this Agreement under this Section 10.1(b) shall not exercised be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date;
(c) by either Seller or Purchaser, if a Governmental Authority shall have issued an order, decree or injunction having the First Option Deadline from time effect of making the transactions contemplated hereby illegal or permanently prohibiting the consummation of the transactions contemplated hereby, and such order, decree or injunction shall have become final and nonappealable (but only if such party shall have used its best efforts to time.
8.02 Notwithstanding any other provision of cause such order, decree or injunction to be lifted or vacated and shall have otherwise complied with its obligations under this Agreement, including Purchaser's obligations under Section 6.2(a));
(d) by either Seller or Purchaser, if at any time during (x) there shall have been a material breach by the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach other of any covenantof its representations, representation warranties, covenants or warranty agreements contained herein, the Optionor may terminate in this Agreement, but only if:
which breach would result in the failure to satisfy one or more of the conditions set forth in Section 7.2 (ain the case of a breach by Seller) it or Section 7.3 (in the case of a breach by Purchaser), and such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured within 30 days after written notice thereof shall have first given been received by the party alleged to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such defaultbe in breach.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Chiquita Brands International Inc), Stock Purchase Agreement (Performance Food Group Co)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing:
(a) it shall have first given to by mutual written consent of Parent and the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andPurchaser;
(b) by either Parent or the Optionee Purchaser if the Closing shall not have occurred by February 15, 2007 (the “Termination Date”); provided, however, that such date may be extended by either Parent or the Purchaser upon written notice to the other party if a Governmental Authority has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply issued a supplemental information request in connection with the provisions of sub-paragraph 8.02(b) hereof, filings under the Optionor, without any further notice, may thereafter terminate HSR Act made in connection with this Agreement, such extension to continue to the earlier of the date that is (i) 10 Business Days after the waiting period under the HSR Act has expired or been terminated and April 1, 2007; provided, further, that the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of right to terminate this Agreement under this Section 10.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date;
(c) by either the Purchaser or Parent in the event that any Governmental Order restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement shall have become final and provided that nonappealable;
(d) by the Optionee Purchaser if Parent, Holdco 1, Holdco 2, Master LLC, EBS LLC or Medifax shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement, which would give rise to the failure of a condition set forth in Article VIII, which breach cannot be or has exercised not been cured by the First OptionTermination Date as may be extended pursuant to Section 10.01(b);
(e) by Parent, if Optionee has not advanced the Second Option Payment Purchaser, Merger LLC or Merger Co shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement which would give rise to the Optionor prior failure of a condition set forth in Article VIII; or
(f) by Parent, if the conditions to the commencement of Commercial Production (the “Commencement Date”), the Second Option Closing set forth in Section 8.02 shall automatically lapse have been satisfied and be or no further force or effect remain satisfied as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that , and Purchaser shall not have obtained either the Optionor is provided with copies of all geotechnical informationDebt Financing or the Alternative Financing by February 2, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor2007.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Emdeon Corp), Agreement and Plan of Merger (Emdeon Inc.)
Termination. 8.01 This Agreement shall terminate:
may be terminated by an aggrieved Party if the other Party (ai) at any time prior to the First Option Deadline, by the Optionee giving notice commits a material breach of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option this Agreement and such breach is not exercised by cured within 30 days after receiving written notice specifying the First Option Deadline from time nature and extent of such breach; provided, however, that if such matter is a non-monetary breach and is not reasonably susceptible of cure within such 30 day period, such period shall be extended and the Party shall not be in default hereunder so long as it commences a cure with such 30 day period and diligently pursues to time.
8.02 Notwithstanding any other provision cure to completion within 90 days after such notice, or (ii) commits numerous breaches of its duties or obligations, which collectively constitute a material breach of this Agreement, if at any time during or (iii) has a petition filed by or against it under applicable bankruptcy law seeking the term liquidation of such Party’s assets, which petition is not dismissed within thirty (30) days, then the First Optionother Party may, the Optionee fails by giving written notice, elect to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this AgreementAgreement without liability. Additionally, but only if:
Company has a right to suspend or cease providing any service or to terminate this Agreement if (a) it shall have first given to Company believes that the Optionee a notice continued provision of default containing particulars of such service or performance the payment not advanced Agreement violates or shares not issuedwould violate the card brand rules or applicable laws or regulations, including, where applicable, any ordinance or the covenantstatute, representation or warranty breached; and
(b) Merchant is accused by any federal, state, or local jurisdiction, of a violation of any applicable statute or ordinance or any regulation, directive or order of any governmental agency or court, (c) Company reasonably believes, which may be based upon the Optionee has notopinion of Company’s legal counsel, within twenty-two that Merchant is in violation of any of the foregoing, (22d) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee ▇▇▇▇▇▇▇▇ has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be paid or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies is late on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permittedrequired payment hereunder, or all payments of money in lieu thereof have been made (e) Merchant is not honoring its commitment to maintain the Property in good standing for at least 120 days receive Processing Services from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorCompany.
Appears in 2 contracts
Sources: Pos System Service Agreement, Pos System Service Agreement
Termination. 8.01 This Agreement shall terminate:may be terminated and the Merger may be abandoned (notwithstanding approval thereof by the Requisite Stockholder Vote) prior to the Effective Time (with any termination by Parent also being an effective termination by Merger Sub):
(a) by mutual written consent of the Company and Parent;
(b) by either the Company or Parent if any Governmental Authority of competent jurisdiction shall have issued an order, decree or ruling enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement and such order, decree or ruling shall have become final and non-appealable, provided that the party seeking to terminate this Agreement pursuant to this Section 8.01(b) shall have used its reasonable best efforts to contest, appeal and remove such order, decree or ruling;
(c) by either the Company or Parent, if the Merger shall not have been consummated on or before May 15, 2007 (the “Outside Date”); provided, however, that if the Marketing Period has not ended on or prior to May 15, 2007, then the Outside Date shall be extended to the earlier of (x) June 30, 2007 and (y) the end of the Marketing Period (and in such event, the term “Outside Date” shall mean the earlier of such extended dates); and provided further, that if the failure of the Merger to be consummated by the Outside Date is the result of any action taken by a party hereto, or the failure of a party hereto to take any action, and such action or failure to take action was a breach of such party’s obligations under this Agreement, then such party shall not be entitled to terminate this Agreement pursuant to this Section 8.1(c);
(d) by either the Company or Parent, if the Requisite Stockholder Vote shall not have been obtained at the Stockholders Meeting or at any time adjournment or postponement thereof at which a vote on the adoption of this Agreement was taken;
(e) by the Company:
(i) if a breach of any representation, warranty, covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement shall have occurred which would cause any of the conditions set forth in Sections 7.3(a) or (b) not to be satisfied, and such breach is incapable of being cured by the Outside Date; provided, however, that the Company is not then in material breach of this Agreement so as to cause any of the conditions set forth in Section 7.1, 7.2(a) or 7.2(b) not to be satisfied;
(ii) if (A) all of the conditions set forth in Sections 7.1 and 7.2 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing) and (B) on or prior to the First Option Deadlinelast day of the Marketing Period, by none of Parent, Merger Sub nor the Optionee giving notice Surviving Corporation shall have received the proceeds of termination to the OptionorDebt Financing; or
(iii) prior to obtaining the Requisite Stockholder Vote, in accordance with, and subject to the terms and conditions of, Section 6.5(d).
(f) by Parent:
(i) if a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement shall have occurred which would cause any of the conditions set forth in Sections 7.2(a) or (b) subject not to paragraph 8.02be satisfied, in the event the First Option and such breach is not exercised incapable of being cured by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision Outside Date; provided, however, that neither Parent nor Merger Sub is then in material breach of this Agreement, if at Agreement so as to cause any time during the term of the First Optionconditions set forth in Section 7.1, 7.3(a) or 7.3(b) not to be satisfied; or
(ii) if the Optionee fails to advance Board of Directors of the Company or any committee thereof (A) shall have effected a Recommendation Withdrawal, (B) shall have recommended to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereofstockholders of the Company a Company Takeover Proposal other than the Merger, or is (C) shall have failed to call the Stockholders Meeting in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of its obligations under this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Datedo so.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Freescale Semiconductor Inc), Merger Agreement (Freescale Semiconductor Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and abandoned at any time prior to the First Option DeadlineClosing Date, whether before or after the receipt of the Requisite Vote (except as otherwise provided below):
(a) by the Optionee giving notice mutual written consent of termination to NXDT and the OptionorCompany; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term either of the First OptionCompany, on the Optionee fails to advance one hand, or NXDT, on the other hand, by written notice to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereofother, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(ai) it shall have first given to the Optionee a notice any Governmental Entity of default containing particulars of the payment not advanced competent authority has issued an order, decree or shares not issued, ruling or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding taken any other provision of action in each case permanently restraining, enjoining or otherwise prohibiting the Mergers substantially on the terms contemplated by this Agreement and such order, decree, ruling or other action has become final and non-appealable; provided, that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) will not be available to a Party if the issuance of such final, non-appealable order, decree or ruling or taking of such other action was primarily due to the failure of the Company, NHT Intermediary, NHT Holdings or the NHT OP, in the case of termination by the Company, or NXDT, NXDT Intermediary, NXDT OP or NXDT Merger Sub, in the case of termination by NXDT, to perform any of its obligations under this Agreement; or
(ii) the Mergers have not have been consummated on or before May 22, 2025 or such later date as may be agreed to in writing by the Parties (the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b)(ii) will not be available to the Company, if the Company, NHT Intermediary, NHT Holdings or NHT OP, or to NXDT, if NXDT, NXDT Intermediary, NXDT OP or NXDT Merger Sub, as applicable, have breached in any material respect its obligations under this Agreement in any manner that have caused or resulted in the failure to consummate the Mergers on or before such date; or
(iii) the Company Merger were submitted to the Old NHT Unitholders at a duly held Unitholders’ Meeting or any adjournment or postponement thereof at which the Company Merger is voted upon and the Requisite Vote has not been obtained; provided that NXDT shall not have the Optionee right to terminate this Agreement pursuant to this Section 8.1(b)(iii) if the failure to obtain the Requisite Vote is due to the failure of NXDT or an entity over which it has exercised control or direction to vote in favor of the First OptionMergers and the Reorganization; or
(c) by written notice from the Company to NXDT, if:
(i) prior to obtaining the Requisite Vote, the Old NHT Board effects an Adverse Recommendation Change in accordance with Section 6.6(d) in connection with a Superior Proposal and the Old NHT Board has approved, and, concurrently with the termination hereunder, the Company enters into a definitive agreement providing for the implementation of a Superior Proposal, but only if Optionee the Company is not then in breach of Section 6.6; provided that such termination will not be effective unless the Company has paid the Company Termination Fee in accordance with Section 8.3(b) or concurrently pays the Company Termination Fee in accordance with Section 8.3(b); or
(ii) NXDT, NXDT Intermediary, NXDT OP or NXDT Merger Sub have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement such that a condition set forth in Section 7.3(a) or Section 7.3(b) would be incapable of being satisfied by the Outside Date, provided, however, that the Company may not terminate this Agreement pursuant to this Section 8.1(c)(i) unless any such breach or failure to perform has not advanced been cured within 20 days after written notice by the Second Option Payment Company to the Optionor NXDT informing NXDT of such breach or failure to perform and intention to terminate this Agreement pursuant to this Section 8.1(c)(i), except that no cure period shall be required for any breach or failure to perform that by its nature cannot be cured prior to the commencement Outside Date; and provided, further, that neither the Company nor NHT OP have breached or failed to perform any of Commercial Production its representations, warranties, covenants or other agreements contained in this Agreement in any material respect; or
(the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access d) by written notice from NXDT to the Property for three (3) months following termination for the purpose of removing its buildingsCompany, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwithif:
(ai) ensure the Company, NHT Intermediary, NHT Holdings or NHT OP have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement such that all filings for assessment credit have a condition set forth in Section 7.2(a) or Section 7.2(b) would be incapable of being satisfied by the Outside Date, provided, however, that NXDT may not terminate this Agreement pursuant to this Section 8.1(d)(i) unless any such breach or failure to perform has not been made in respect of all Work cured within 20 days after written notice by NXDT to the maximum extent permittedCompany informing the Company of such breach or failure to perform and intention to terminate this Agreement pursuant to this Section 8.1(d)(i) except that no cure period shall be required for any breach or failure to perform that by its nature cannot be cured prior to the Outside Date; and provided, further, that neither NXDT, NXDT Intermediary, NXDT OP nor NXDT Merger Sub have breached or all payments failed to perform any of money its representations, warranties, covenants or other agreements contained in lieu thereof have been made to maintain the Property this Agreement in good standing for at least 120 days from the date of terminationany material respect; andor
(bii) ensure that the Optionor is provided Old NHT Board has effected an Adverse Recommendation Change, Old NHT enters into an Alternative Acquisition Agreement (other than an Acceptable Confidentiality Agreement entered into in compliance with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core Section 6.6) or Old NHT shall have breached or failed to perform its covenants and all other data information agreements set forth in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorSection 6.6.
Appears in 2 contracts
Sources: Merger Agreement (Nexpoint Diversified Real Estate Trust), Merger Agreement (Nexpoint Diversified Real Estate Trust)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing as follows:
(a) it shall have first given to the Optionee a notice by mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andMICT and Intermediate;
(b) by written notice by either MICT or Intermediate if any of the Optionee has notconditions to the Closing set forth in Article VI have not been satisfied or waived by May 20, within twenty-two 2020 (22the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 7.1(b) days following delivery shall not be available to a Party if the breach or violation by such Party or its Affiliates of such notice any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of default, cured such defaultthe Closing to occur on or before the Outside Date.
8.03 Should (c) by written notice by any of MICT or Intermediate if a Governmental Authority of competent jurisdiction or self-regulatory organization which regulate securities markets (including, for the Optionee fail to comply with avoidance of doubt, Nasdaq) shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate transactions contemplated by this Agreement, and such Order or other action has become final and non-appealable; provided, however, that the provisions of paragraph 8.06 hereof right to terminate this Agreement pursuant to this Section 7.1(c) shall then apply.
8.04 Notwithstanding not be available to a Party if the failure by such Party or its Affiliates to comply with any other provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;
(d) by written notice by Intermediate, if (i) there has been a material breach by MICT or its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of MICT shall have become materially untrue or materially inaccurate, in any case, which would result in a failure of a condition set forth in Section 6.2(a) or Section 6.2(b) to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided by Intermediate or (B) the Outside Date; provided that the Optionee has exercised the First Option, if Optionee has Intermediate shall not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right to terminate this Agreement pursuant to this Section 7.1(d) if at such time Intermediate is in material uncured breach of access to the Property for three this Agreement;
(3e) months following termination for the purpose of removing its buildingsby written notice by MICT, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three if (3i) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear there has been a breach by Intermediate of any claim of its representations, warranties, covenants or encumbrance by or through the Optionee.
8.06 If agreements contained in this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permittedAgreement, or all payments if any representation or warranty of money such Parties shall have become untrue or inaccurate, in lieu thereof have been made any case, which would result in a failure of a condition set forth in Section 6.3(a) or Section 6.3(b) to maintain be satisfied (treating the Property in good standing Closing Date for at least 120 days from such purposes as the date of terminationthis Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) twenty (20) days after written notice of such breach or inaccuracy is provided by MICT or (B) the Outside Date; andprovided that MICT shall not have the right to terminate this Agreement pursuant to this Section 7.1(e) if at such time MICT is in material uncured breach of this Agreement;
(bf) ensure by written notice by Intermediate, at any time in the event that MICT has entered into binding agreement concerning a transaction that constitutes a Superior Proposal;
(g) by written notice by MICT, at any time in the Optionor event that Intermediate has entered into binding agreement concerning a transaction that constitutes a Superior Proposal;
(h) by written notice by MICT, if there shall have been a Material Adverse Effect with respect to Intermediate, following the date of this Agreement which is provided uncured and continuing;
(i) by written notice by Intermediate if there shall have been a Material Adverse Effect with copies respect to MICT following the date of all geotechnical informationthis Agreement which is uncured and continuing;
(j) by written notice by Intermediate, including, without limiting, plans, assay maps, diamond drill records, diamond drill core in the event that Sunrise Securities LLC or any affiliate thereof seeks and all obtains from a court of competent jurisdiction or other data information in all formats including without limiting, electronic records pertaining to Governmental Authority a permanent injunction or other Order that has become final and non-appealable preventing the Property and relating to the work or activities consummation of the Optionee on the Property which had theretofore not been delivered to the Optionortransactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (MICT, Inc.), Agreement and Plan of Merger (MICT, Inc.)
Termination. 8.01 This Agreement shall terminatemay be terminated prior to the Effective Time or such other time as may be expressly stipulated in any of the subsections below:
(a) by mutual written consent of the Offeror and Augusta;
(b) by the Offeror by written notice to Augusta if any condition contained in Section 2.2 has not been satisfied or waived by the Offeror, in its sole discretion, at or before the Latest Mailing Time, except where failure to satisfy such condition is, in whole or in part, a result of a default by the Offeror of its obligations pursuant to this Agreement;
(c) by the Offeror by written notice to Augusta at any time prior if:
(i) Augusta is in default of any covenant or obligation in Section 2.5, Section 6.1, Section 6.2 or Section 7.5;
(ii) Augusta has breached any other covenant or obligation under this Agreement except for breaches that neither individually nor in the aggregate, result or could reasonably be expected to the First Option Deadlineresult, by the Optionee giving notice of termination to the Optionorin a Material Adverse Change; or
(biii) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifof Augusta:
(aA) it that is qualified by reference to a Material Adverse Change shall have first given be untrue or incorrect in any respect; or
(B) that is not qualified by reference to a Material Adverse Change shall be untrue or incorrect unless the Optionee failure to be true or correct has neither individually nor in the aggregate with other such representations being untrue or incorrect caused or reasonably may be expected to cause, a notice Material Adverse Change; provided that in each case, such right of default containing particulars termination shall not be available with respect to any breach or failure that is capable of being cured and such breach or failure has been cured by the earlier of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
date which is five (b5) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 business days from the date of termination; andwritten notice of such breach or failure and the business day prior to the Expiry Date;
(d) by the Offeror by written notice to Augusta if the Augusta Board of Directors fails to publicly recommend the Offer as referred to in Section 2.2(a)(iv) or reaffirm its approval of the Offer within three (3) business days of any written request by the Offeror (or, in the event that the Offer shall be scheduled to expire within such three (3) business day period, prior to the scheduled expiry of the Offer);
(e) by the Offeror by written notice to Augusta if the Augusta Board of Directors or any committee thereof withdraws, amends or modifies in any manner adverse to the Offeror or the Augusta Board of Directors fails to publicly recommend or reaffirm its approval of the Offer and recommendation that Shareholder tender all of the Augusta Shares under the Offer within three (3) business days of (a) the public announcement of any Acquisition Proposal which the Augusta Board of Directors has determined is not a Superior Proposal or (b) ensure the written request by the Offeror that the Optionor Augusta Board of Directors make such a recommendation or reaffirmation;
(f) by the Offeror by written notice to Augusta if Augusta fails to take any action required under Section 2.5 of this Agreement with respect to the Shareholder Rights Plan to defer the Separation Time (as defined in the Shareholder Rights Plan), waive the application of the Shareholder Rights Plan to the Contemplated Transactions or to allow the timely completion of any of the Contemplated Transactions;
(g) by Augusta by written notice to the Offeror at any time if any representation or warranty of the Offeror under this Agreement:
(i) that is provided qualified by reference to an Offeror Material Adverse Change shall be untrue or incorrect in any respect; or
(ii) that is not qualified by reference to an Offeror Material Adverse Change shall be untrue or incorrect unless the failure to be true or correct has neither individually nor in the aggregate with copies other such representations being untrue or incorrect caused or reasonably may be expected to cause, an Offeror Material Adverse Change;
(h) by Augusta by written notice to the Offeror if: (A) the Offeror has not mailed the Notice of all geotechnical informationVariation and Extension by the Latest Mailing Time except where such failure is attributable, includingin whole or in part, without limiting, plans, assay maps, diamond drill records, diamond drill core and all to a default by Augusta; or (B) the Offer (or any amendment thereto other data information than as permitted hereunder or any amendment thereof that has been mutually agreed to by the Parties) does not conform in all formats including without limiting, electronic records pertaining material respects with this Agreement or any amendment thereof that has been mutually agreed to by the Parties and such non conformity is not cured within five (5) business days from the date of written notice to that effect from Augusta;
(i) by Augusta by written notice to the Property Offeror in order to accept, approve, recommend or enter into a binding written agreement with respect to a Superior Proposal (other than a confidentiality agreement permitted by Section 6.1(d)), subject to compliance with Section 6.2 and relating Section 6.3;
(j) by either Party by written notice to the work other of them if the Effective Time does not occur on or activities prior to the Outside Date, provided that the failure of the Optionee on Effective Time to so occur is not attributable, in whole or in part, to a breach of a representation, warranty or covenant by the Property which had theretofore Party terminating this Agreement and provided further that Augusta only may terminate the Agreement pursuant to this Section 8.1(j) if the Offeror has not waived the unsatisfied conditions and publicly announced its intention to take up and pay for Augusta Shares that have been delivered deposited pursuant to the OptionorOffer;
(k) by either Party by written notice to the other of them if the Offer terminates, expires or is withdrawn at the Expiry Time without the Offeror taking up and paying for any of the Augusta Shares as a result of the failure of any condition to the Offer to be satisfied or waived, unless the failure of such condition shall be attributable, in whole or in part, to the failure of the Party seeking to terminate this Agreement to perform the obligations required to be performed by it under this Agreement; or
(l) by either Party by written notice to the other of them if any Law in force in Canada or United States (other than a judicial, arbitral, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings or awards of any Governmental Authority resulting from action inconsistent with this Agreement) makes the completion of the Offer or the Contemplated Transactions illegal or otherwise prohibited.
Appears in 2 contracts
Sources: Support Agreement (HudBay Minerals Inc.), Support Agreement (Augusta Resource CORP)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option DeadlineEffective Time, whether before or after receipt of the Required Company Vote or, if required, the Bearing Shareholder Approval (except as otherwise expressly noted):
(a) by mutual written consent of Bearing and the Company, by action of their respective boards of directors;
(b) by written notice by either the Optionee giving notice Company or Bearing if:
(i) the Effective Time shall not have occurred on or before December 31, 2017 (the “Termination Date”) or if any of termination the conditions to the OptionorClosing set forth in Article 5 have not been satisfied or waived by the Termination Date; provided that the Termination Date shall be automatically extended for a period of sixty (60) days in the event that the failure of the Closing to have occurred by the initial Termination Date results primarily by the failure of any of the conditions set forth in Sections 5.1(d), 5.1(e), or 5.1(f) ; and provided further, that the right to terminate this Agreement under this Section 6.1(b)(i) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the primary cause of the failure of the Effective Time to occur on or before the Termination Date and such action or failure to perform constitutes a breach of this Agreement;
(ii) any Governmental Entity of competent jurisdiction shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and non-appealable; provided that the Party seeking to terminate this Agreement pursuant to this Section 6.1(b)(ii) shall have used its reasonable best efforts to remove such restraint or prohibition as required by this Agreement; and provided, further, that the right to terminate this Agreement pursuant to this Section 6.1(b)(ii) shall not be available to any Party whose material breach of any provision of this Agreement results in the imposition of such order, decree or ruling or the failure of such order, decree or ruling to be resisted, resolved or lifted;
(iii) the Company Stockholders’ Meeting shall have been conducted and the Required Company Vote shall not have been obtained; or
(biv) subject to paragraph 8.02the extent that the Bearing Shareholder Approval is required, Bearing shall have conducted a meeting of its stockholders and such Bearing Shareholder Approval shall not have been obtained.
(c) by written notice by Bearing, if:
(i) the Company shall have breached or failed to perform in the event the First Option any respect any of its representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform (A) is not exercised cured by the First Option Deadline Company within thirty (30) days following receipt by the Company of written notice of such breach or failure to perform from time to time.
8.02 Notwithstanding Bearing (or, if earlier the Termination Date), and (B) would result in a failure of any other provision condition set forth in Sections 5.1 or 5.2 (treating the Closing Date for purposes thereof as the date of this Agreement, or if at any time during the term of the First Optionlater, the Optionee fails date of such breach); provided that Bearing’s right to advance terminate this Agreement pursuant to the Optionor any cash payment this Section 6.1(c)(i) shall not be available if Bearing or shares required under sub-paragraph 4.02(a) hereof, or Sub is then in material breach of any covenantof its representations, representation warranties, covenants or warranty contained herein, agreements hereunder that would result in the Optionor may terminate conditions to Closing set forth in Sections 5.1 or 5.3 not being satisfied (treating the Closing Date for purposes thereof as the date of this Agreement, or if later, the date of such breach);
(ii) (x) the Company Board fails to include the Company Board Recommendation in the final Proxy Statement/Prospectus or (y) the Company Board shall have changed the Company Board Recommendation to not support this Agreement and the transactions contemplated hereby;
(iii) if (x) all of the conditions contained in Section 5.1 and Section 5.3 have been satisfied or waived by the Company (other than those conditions that by their nature are to be satisfied at the Closing (but only subject to their satisfaction or waiver by the Company at the Closing)) and (y) the Company fails to complete the Closing within three (3) Business Days following the date the Closing should have occurred pursuant to Section 1.2;
(iv) if there shall have been a Company Material Adverse Effect following the date of this Agreement which is uncured and continuing;
(v) within forty-five (45) days after the date of this Agreement if Bearing is not reasonably satisfied with the results of such due diligence investigation of the Company; or
(d) by written notice by the Company, if:
(ai) it Bearing or Sub shall have first given breached or failed to the Optionee a notice perform in any respect any of default containing particulars of the payment their respective representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform (A) is not advanced or shares not issued, or the covenant, representation or warranty breached; and
cured within thirty (b) the Optionee has not, within twenty-two (2230) days following delivery receipt by Bearing of written notice of such notice of defaultbreach or failure to perform from the Company (or, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereofif earlier, the OptionorTermination Date), without and (B) would result in a failure of any further notice, may thereafter terminate condition set forth in Sections 5.1 or 5.3 (treating the Closing Date for purposes thereof as the date of this Agreement, and or if later, the provisions date of paragraph 8.06 hereof such breach); provided, that the Company’s right to terminate this Agreement pursuant to this Section 6.1(d)(i) shall not be available if the Company is then apply.
8.04 Notwithstanding in material breach of any other provision of its representations, warranties, covenants or agreements hereunder that would result in the conditions to Closing set forth in Sections 5.1 or 5.2 not being satisfied (treating the Closing Date for purposes thereof as the date of this Agreement and provided that the Optionee has exercised the First OptionAgreement, or if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”)later, the Second Option date of such breach);
(ii) (A) the Bearing Board shall automatically lapse and be or no further force or effect as have failed to publicly reaffirm the Bearing Board Recommendation within two (2) Business Days after the Company so requests in writing;
(iii) if (x) all of the first Business Day immediately following conditions contained in Section 5.1 and Section 5.2 have been satisfied or waived by Bearing (other than those conditions that by their nature are to be satisfied at the Commencement Date.
8.05 The Optionee shall vacate Closing (but subject to their satisfaction or waiver by Bearing at the Property Closing)) and (y) Bearing and Sub fail to complete the Closing within a reasonable time after termination, but shall have the right of access to the Property for three (3) months Business Days following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from date the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior Closing should have occurred pursuant to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:Section 1.2;
(aiv) ensure that all filings for assessment credit if there shall have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from a Bearing Material Adverse Effect following the date of terminationthis Agreement which is uncured and continuing; andor
(bv) ensure that within forty-five (45) days after the Optionor date of this Agreement if the Company is provided not reasonably satisfied with copies the results of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities such due diligence investigation of the Optionee on the Property which had theretofore not been delivered to the OptionorBearing.
Appears in 2 contracts
Sources: Merger Agreement (Bearing Resources Ltd.), Merger Agreement (Li3 Energy, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, Closing Date as follows and in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any no other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifmanner:
(a) it shall have first given to the Optionee a notice of default containing particulars by mutual written consent of the payment not advanced or shares not issuedPurchaser, or on the covenantone hand, representation or warranty breached; andand each of the Sellers, on the other hand;
(b) upon the Optionee issuance by any Governmental Body of an order, decree or ruling or their taking of any other action restraining, enjoining or otherwise prohibiting the transactions contemplated hereby, which order, decree, ruling or any other action shall have become final and non-appealable;
(c) by the Purchaser, on the one hand, or by the Sellers, on the other hand, if the Closing shall not have occurred on or before the date that is 180 calendar days after the date of this Agreement (the “Termination Date”); provided that no termination may be made under this Section 10.01(c) if the failure to close shall have been caused by the action or inaction of the terminating party; provided, further, if the Closing has notnot occurred by the Termination Date solely because the applicable waiting period has not expired or been terminated or any required governmental approvals have not been obtained under the HSR Act or any Other Antitrust Regulations, within twenty-two including Competition Act Approval, and if all other conditions to Closing set forth in Article IV shall have been satisfied (22other than those conditions to be satisfied by action taken at the Closing), then the Termination Date may be extended for up to an additional 90 days by either of the Purchaser or the Sellers, after providing written notice to the other party;
(d) days following delivery by the Purchaser, upon a breach of such notice any covenant or agreement on the part of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate Sellers set forth in this Agreement, or if any representation or warranty contained in Article V or Article VI shall be or have become untrue, in either case, such that any of the conditions set forth in Section 4.01(a) or 4.01(b) would not be satisfied; provided, however, that, if such breach is curable by the Sellers within thirty days of notice of such breach through the exercise of commercially reasonable efforts and for so long as the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of Sellers, or cause the Company and its Subsidiaries to, continue to exercise such commercially reasonable efforts, the Purchaser may not terminate this Agreement and provided under this Section 10.01(d); or
(e) by the Sellers, upon a breach of any covenant or agreement on the part of the Purchaser set forth in this Agreement, or if any representation or warranty of the Purchaser shall be or have become untrue, in either case, such that any of the Optionee has exercised the First Optioncondition set forth in Section 4.02(a) or 4.02(a) would not be satisfied; provided, however, that, if Optionee has not advanced such breach is curable by the Second Option Payment Purchaser within thirty days of notice of such breach through the exercise of commercially reasonable efforts and for so long as the Purchaser continues to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”)exercise such reasonable commercially efforts, the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If Sellers may not terminate this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionorunder this Section 10.01(e).
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Huntsman International LLC)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option DeadlineSecond Merger Effective Time, by whether before or after obtaining the Optionee giving notice of termination to Required Marigold Vote or the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifRequired Montage Vote:
(a) it shall have first given to the Optionee by mutual consent of Marigold and Montage in a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andwritten instrument;
(b) by either Marigold or Montage if any U.S. federal or state court of competent jurisdiction shall have issued a final and nonappealable Order permanently enjoining or otherwise prohibiting either of the Optionee Mergers, provided that the party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have complied with its obligations pursuant to Section 6.3 with respect to such Order;
(c) by either Marigold or Montage if the Mergers shall not have been consummated on or before September 7, 2016 (the “Initial Outside Date”); provided, that if on the Initial Outside Date any of the conditions set forth in Section 7.1(a)(i) or (a)(ii) shall not have been satisfied but all other conditions set forth in Article VII shall have been satisfied or waived or shall then be capable of being satisfied, then the Initial Outside Date shall be automatically extended to December 6, 2016; and provided, further, that if the Marketing Period has notnot ended by the last Business Day immediately prior to the Outside Date, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should then the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, Outside Date shall be automatically extended without any further notice, may thereafter terminate action by the parties to the fifth (5th) Business Day following the final day of the Marketing Period. As used in this Agreement, and the provisions of paragraph 8.06 hereof term “Outside Date” shall then apply.
8.04 mean the Initial Outside Date, unless extended pursuant to the foregoing sentence, in which case, the term “Outside Date” shall mean such date to which the Initial Outside Date has been so extended. Notwithstanding any other provision of the foregoing, the right to terminate this Agreement and provided that under this Section 8.1(c) shall not be available to any party if the Optionee has exercised failure of the First Option, if Optionee has not advanced the Second Option Payment Closing to occur by such date shall be due to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as failure of the first Business Day immediately following such party to perform or observe the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right covenants and agreements of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond such party set forth in this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.Agreement;
Appears in 2 contracts
Sources: Merger Agreement (Media General Inc), Merger Agreement (Meredith Corp)
Termination. 8.01 This Agreement shall terminatemay be terminated upon written notice by Buyer or Seller upon the following conditions:
(ai) at any time By mutual written consent of the parties;
(ii) By Buyer if the conditions to Closing set forth in Section 9(a) have not been satisfied or waived by the Closing Date other than as a result of a breach or default by Buyer of its obligations hereunder.
(iii) By Seller if the conditions to Closing set forth in Section 9(b) have not been satisfied or waived by the Closing Date other than as a result of a breach or default by Seller of its obligations hereunder;
(iv) By Buyer in the event that prior to the First Option DeadlineClosing Date a material portion of the Real Property or the improvements thereon is damaged or destroyed or taken or condemned by any public or quasi-public authority under the power of eminent domain; provided, by however, that in the Optionee giving notice event Buyer fails to exercise its termination rights hereunder, then it shall be conclusively deemed to have waived said right and Seller shall assign to Buyer all of termination its rights to the Optionor; orany insurance proceeds and condemnation award and all claims in connection therewith.
(bv) subject to paragraph 8.02, By Seller in the event the First Option is Closing does not exercised occur on or prior to June 30, 2008 other than as a result of either (A) a breach or default by Seller, beyond any applicable cure period provided for in this Section 10, of its obligations hereunder or (B) the First Option Deadline existence of any other event or circumstance which prevents Seller from time to timeconsummating the transaction provided for herein.
8.02 Notwithstanding (vi) By Buyer in the event the Closing does not occur on or prior to June 30, 2008 as a result of either (A) a breach or default by Seller, beyond any applicable cure period provided for in this Section 10, of its obligations hereunder or (B) the existence of any other provision of this Agreement, if at any time during event or circumstance which prevents Seller from consummating the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained transaction provided for herein, the Optionor may terminate this Agreement, but only if:.
(avii) it shall have first given By Buyer pursuant to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andSection 6(a)(iii).
(bviii) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such defaultBy Buyer pursuant to Section 7(c).
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Emeritus Corp\wa\), Purchase and Sale Agreement (Nationwide Health Properties Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, notwithstanding approval thereof by the Optionee giving shareholders of the Company (with any termination by the Parent also being an effective termination by the Merger Sub):
(a) by the mutual written consent of the Boards of Directors (or duly authorized committees thereof) of the Parent, the Merger Sub and the Company;
(b) by any party if (i) the Company's shareholders fail to approve this Agreement at the Shareholders' Meeting or (ii) the Merger shall not have been consummated on or before the Termination Date; provided that if any condition to this Agreement shall fail to be satisfied by reason of the existence of an injunction or order of any court or governmental or regulatory body, then at the request of any party the deadline date referred to above shall be extended for a reasonable period of time, not in excess of 30 days, to permit the parties to have such injunction vacated or order reversed;
(c) by the Company, in the event of a material breach by the Parent or the Merger Sub of any representation, warranty or agreement of the Parent or the Merger Sub contained in this Agreement, in each case which has not been cured or is not curable by the earlier of (i) the Termination Date or (ii) the 30th day after notice of termination such breach was given to the OptionorParent or the Merger Sub (as the case may be);
(d) by the Company, if the Company receives a firm proposal with respect to an Acquisition Transaction which its Board of Directors determines, in the exercise of its fiduciary duties as advised by counsel, contains terms that are more favorable to the Company and its constituents, taken as a whole, than the Merger;
(e) by the Parent, in the event of a material breach by the Company of any representation, warranty or agreement of the Company contained in this Agreement which has not been cured or is not curable by the earlier of (i) the Termination Date or (ii) the 30th day after notice of such breach was given to the Company;
(f) by the Parent upon the occurrence of any event described in 5.10(a)(i) or 5.10(a)(ii); or
(bg) subject by either party if the conditions to paragraph 8.02, in the event the First Option is not exercised be satisfied by the First Option Deadline from time other party pursuant to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 Article VI hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor have been satisfied (or waived) prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Termination Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Communications Instruments Inc), Merger Agreement (Corcom Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger may be abandoned at any time prior to the First Option Deadline, Effective Time (notwithstanding any approval of this Agreement by the Optionee giving notice stockholders of termination to the Optionor; orCompany):
(a) by mutual written consent of the Company and Parent;
(b) subject to paragraph 8.02by either the Company or Parent if the Merger has not been consummated on or before November 30, 2004 (the “End Date”); provided that in the event the First Option Merger has not been consummated on or before November 30, 2004 and prior to such date the SEC shall have reviewed or provided oral or written comments to the Offer Documents or the Proxy Statement, the End Date shall be extended to the extent such review or comment process delayed the consummation of the Merger beyond November 30, 2004; provided further that in no event shall the End Date extend beyond January 31, 2005 (provided that the right to terminate this Agreement under this clause (b) shall not be available to any party whose failure to fulfil any of its material obligations under this Agreement has been the cause of the failure to consummate the Merger by such date);
(c) by either the Company or Parent, if there shall be any applicable Law that makes consummation of the Offer or the Merger illegal or otherwise prohibited or if any Order of a Governmental Authority of competent jurisdiction shall restrain or prohibit the consummation of the Offer or the Merger, and such Order shall become final and nonappealable; provided, that the right to terminate this Agreement under this clause (c) shall not be available to any party who has not used its commercially reasonable efforts to have such Order lifted;
(d) prior to the Acceptance Date by (x) the Company if there has been a breach by Parent of any representation or warranty of Parent contained in this Agreement which would have a Parent Material Adverse Effect, (y) Parent if there has been a breach of the representations and warranties or covenants or agreements of the Company contained in this Agreement such that the condition to the Offer set forth in clause (e) of Annex A would not be satisfied, or (z) by the Company if Parent shall not have performed in all material respects each material obligation, agreement and covenant to be performed with by it under the Agreement, and in each of clauses (x), (y) and (z), such breach is not exercised curable or, if curable, is not cured within 30 days after written notice of such breach is given by the First Option Deadline from time terminating party to time.the other party;
8.02 Notwithstanding any other provision (e) by Parent prior to the Acceptance Date, if, (i) the Board of Directors of the Company shall have failed to recommend, or shall have withdrawn or modified in a manner adverse to Parent, its approval or recommendation of this Agreement, if at the Offer or the Merger, or shall have recommended, or entered into, or publicly announced its intention to enter into, an agreement or an agreement in principle with respect to a Superior Proposal (or shall have resolved to do any time during the term of the First Optionforegoing), (ii) the Optionee fails Company shall have breached in any material respect any of its obligations under Section 6.03, (iii) the Board of Directors of the Company shall have refused to advance to the Optionor any cash payment affirm its approval or shares required under sub-paragraph 4.02(a) hereof, or is in breach recommendation of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:the Offer or the Merger within ten Business Days of any written request from Parent, (iv) a competing tender or exchange offer constituting an Acquisition Proposal shall have been commenced and the Company shall not have sent holders of the Shares pursuant to Rule 14e-2 promulgated under the Exchange Act, (within ten Business Days after such tender or exchange offer is first published, sent or given (within the meaning of Rule 14e-2)), a statement disclosing that the Board of Directors of the Company recommends rejection of such Acquisition Proposal, (v) the Board of Directors of the Company shall exempt any other Person from the provisions of Section 203 of the DGCL, or (vi) the Company or its Board of Directors publicly announces its intention to do, or resolves to do, any of the foregoing;
(af) the Company prior to the Acceptance Date, if the Board of Directors of the Company shall approve, subject to complying with the terms of this Agreement, a Superior Proposal in accordance with Section 6.03; provided, however, that the Company may not terminate pursuant to this Section 8.01(f) unless (i) such Superior Proposal did not result from the Company’s breach of Section 6.03, (ii) the Company’s Board of Directors authorizes the Company, subject to complying with the terms of this Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal and the Company notifies Parent in writing that it intends to enter into such an agreement, attaching the most current version of such agreement to such notice (including any subsequent amendments or modifications), (iii) during the three Business Day period after the Company’s notice (the “Negotiation Period”), (x) the Company shall have first given offered to negotiate with (and, if accepted, negotiate with), and shall have instructed its financial and legal advisors to offer to negotiate with (and if accepted, negotiate with), Parent to attempt to make such adjustments in the Optionee a notice terms and conditions of default containing particulars of this Agreement as will enable the payment Company to proceed with this Agreement; provided, that the Company shall not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail be required to comply with this clause (iii) if the provisions next scheduled expiration date of sub-paragraph 8.02(bthe Offer is scheduled to expire on or before the third Business Day after the end of the Negotiation Period unless Parent agrees in writing to extend the Offer until 5:00 p.m. New York City time on the third Business Day after the end of the Negotiation Period and (y) hereofthe Board of Directors of the Company shall have determined in good faith, after consultation with its independent financial advisors and outside legal counsel and, after considering the Optionorresults of such negotiations and the revised proposal made by Parent, without if any, that the Superior Proposal giving rise to the Company’s notice (including any further noticesubsequent amendments or modifications) continues to be a Superior Proposal, may thereafter terminate this Agreement(iv) such termination is within three Business Days following the Negotiation Period, if any, and (v) no termination pursuant to this Section 8.01(f) shall be effective unless the provisions Company shall provide Parent with a written acknowledgment from each other party to the Superior Proposal that it is aware of paragraph 8.06 hereof shall then apply.the amounts due Parent under Section 9.04 and that such party waives any right it may have to contest any such amounts payable under Section 9.04;
8.04 Notwithstanding any other provision (g) by the Company, if the Offer has not been commenced within seven Business Days following the date of this Agreement and (except as a result of any material breach of this Agreement by the Company); provided that such right of termination shall have been exercised by the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor Company prior to the commencement of Commercial Production the Offer;
(h) by Parent or the “Commencement Date”)Company if as the result of the failure of any of the conditions set forth in Annex A hereto, the Second Option Offer shall automatically lapse and have terminated or expired in accordance with its terms (including after giving effect to any extensions, if any, pursuant to Section 2.01(c)) without Merger Subsidiary having purchased any Shares pursuant to the Offer; provided, however, that the right to terminate this Agreement pursuant to this Section 8.01(h) shall not be available to any party whose failure to fulfil any of its material obligations under this Agreement has been the cause of such failure;
(i) by Parent if either the Chief Executive Officer or no further force or effect as the Chief Financial Officer of the first Business Day immediately following Company fails to provide the Commencement Date.certifications required under Section 302 or Section 906 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act with respect to any Annual Report on Form 10-K or Quarterly Report on Form 10-Q of the Company at the time such report is required to be filed under the Exchange Act; or
8.05 The Optionee (j) by Parent if, on or prior to August 15, 2004, the Company shall vacate have not publicly filed its Quarterly Report on Form 10-Q for the Property within a reasonable fiscal quarter ending June 30, 2004, (ii) at any time after terminationthe date hereof, but there is any material restatement of the Company’s consolidated financial statements, or any material change to the Company’s previously announced financial results, or (iii) the Company shall have filed with the SEC, or otherwise announced, one or more amendments to a Company SEC Report in which the Company makes a downward material restatement of the proved Hydrocarbon reserves of the Company and its Subsidiaries. The right of access any party hereto to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances terminate this Agreement pursuant to this Section 8.01 shall remain operative and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free in full force and clear effect regardless of any claim or encumbrance investigation made by or through the Optionee.
8.06 If this Agreement terminates on behalf of any party hereto, any Person controlling any such party or any of their respective officers, directors, representatives or agents, whether prior to a First Option Deadline at a time when or after the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect execution of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionorthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
Termination. 8.01 This Reorganization Agreement shall terminateand the Plan of Merger may be terminated, either before or after approval by the shareholders of FNB:
(a) at At any time on or prior to the First Option DeadlineEffective Date, by the Optionee giving notice mutual consent in writing of termination to the Optionor; orparties hereto;
(b) subject At any time on or prior to paragraph 8.02the Closing Date, by M&T in writing, if FNB has, or by FNB in writing, if M&T or Merger Sub has, in any material respect, breached (i) any covenant or agreement contained herein or in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding Plan of Merger or (ii) any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, and in either case if (x) such breach has not been cured by the Optionor may terminate this Agreement, but only if:
(a) it shall have first earlier of 30 days after the date on which written notice of such breach is given to the Optionee party committing such breach or the Closing Date and (y) such breach would entitle the non-breaching party not to consummate the transactions contemplated hereby under Article V hereof;
(c) At any time, by any party hereto in writing, if the applications for prior approval referred to in Section 4.3 hereof have been denied, and the time period for appeals and requests for reconsideration has run, or if any governmental entity of competent jurisdiction shall have issued a notice final nonappealable order enjoining or otherwise prohibiting the Merger;
(d) At any time, by any party hereto in writing, if the shareholders of default containing particulars FNB do not approve the transactions contemplated herein at the special meetings duly called for that purpose;
(e) By any party hereto in writing, if the Closing Date has not occurred by the close of business on September 30, 1999 unless the failure of the payment not advanced Closing to occur by such date shall be due to the failure of the party seeking to terminate this Agreement to perform or shares not issued, or observe the covenant, representation or warranty breachedcovenants and agreements set forth herein; andor
(bf) By FNB, upon the Optionee has notexecution by FNB of a definitive agreement relating to a takeover proposal (as defined in Section 4.7(b)(13)), within twenty-two provided that (22i) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply FNB shall have complied with the provisions of sub-paragraph 8.02(bits obligations under Section 4.7(b)(13) hereof, (ii) the OptionorBoard of Directors of FNB shall have determined, without any further notice, may thereafter terminate this Agreement, after having received the advice of outside legal counsel to FNB and the provisions advice of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision FNB's financial advisor, that such action is necessary for the Board of this Agreement Directors to act in a manner consistent with its fiduciary duties under applicable law and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement (iii) concurrent with its notification of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access FNB will wire to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance an account designated by or through the OptioneeM&T $13 million in immediately available funds.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Reorganization Agreement (FNB Rochester Corp), Reorganization Agreement (M&t Bank Corp)
Termination. 8.01 This Agreement shall terminate:
(a) This Agreement may, by notice given on or prior to the Closing Date, in the manner hereinafter provided, be terminated and abandoned at any time prior to the First Option Deadline, Closing Date:
(i) by mutual agreement of the Company and Parent;
(ii) by the Optionee giving Company if there has been a Breach by Parent with respect to its representations, warranties or covenants in this Agreement, in each case such that the conditions set forth in Sections 8.1 or 8.2 hereof would not be satisfied, and such misrepresentation, default or breach shall not have been cured within ten (10) days after receipt by Parent of notice specifying particularly such misrepresentation, default or breach;
(iii) by Parent if there has been a Breach by the Company or the Significant Stockholders with respect to any of termination their respective representations, warranties or covenants in this Agreement, in each case such that the conditions set forth in Sections 7.1 or 7.2 hereof would not be satisfied, and such misrepresentation, default or breach shall not have been cured within ten (10) days after receipt by the Company of notice specifying particularly such misrepresentation, default or breach;
(iv) by the Company or by Parent if the Closing shall not have occurred on or before 60 days after the date of this Agreement; provided that the Party seeking to terminate this Agreement shall not be entitled to terminate this Agreement if its breach or violation of any representation, warranty or covenant contained herein shall have been the principal cause of the Closing not having occurred on or before such date;
(v) by Parent if Written Consents evidencing the Requisite Vote shall not have been delivered, properly completed and executed to approve the Merger, this Agreement and the documents and transactions contemplated hereby within eight (8) business days after the date of this Agreement;
(vi) by the Company or by Parent, if (i) there shall be a final nonappealable order of a federal or state court in effect preventing the consummation of the transactions contemplated by this Agreement; or (ii) there shall be any action taken, or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Optionortransactions by any Government Authority which would make the consummation of the transactions illegal; or
(bvii) subject to paragraph 8.02by Parent if, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term prior to receipt of the First OptionRequisite Vote, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given determined there has occurred an effect, event or change which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany.
(b) In the Optionee has not, within twenty-two (22) days following delivery event of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision termination of this Agreement pursuant to Section 11.1 (a), this Agreement shall thereafter become void and provided have no effect, except that the Optionee has exercised the First Optionnothing herein will relieve any Party from Liability for any willful breach of any representation, if Optionee has not advanced the Second Option Payment to the Optionor warranty, covenant or agreement set forth in this Agreement prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Datesuch termination.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Veeco Instruments Inc)
Termination. 8.01 This Agreement shall terminateterminate as to the sale and issuance of new Contracts:
(a) at any time prior the option of either the Company or Twentieth Century upon 90 days' advance written notice to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; orother;
(b) subject at the option of the Company if shares of the Fund are not available for any reason or if the Company shall reasonably determine in good faith that further investment in shares of the Fund is inappropriate in view of the purposes of the Contracts, provided that reasonable advance notice of election to paragraph 8.02terminate shall be furnished by the Company;
(c) at the option of either the Company or Twentieth Century, upon institution of formal proceedings against the broker-dealer or broker-dealers underwriting the Contracts, the Account, the Company, Investors Research or Twentieth Century by the National Association of Securities Dealers, Inc. (the "NASD"), the SEC or any other regulatory body;
(d) at the option of Twentieth Century, if Twentieth Century shall reasonably determine in good faith that the event the First Option Company is not exercised by offering shares of the First Option Deadline from time Fund in conformity with the terms of this Agreement;
(e) upon termination of the Management Agreement between Twentieth Century and Investors Research, notice of which shall be promptly furnished to time.the Company; provided, however, that this subsection (e) shall not apply if contemporaneously with such termination a new contract of substantially similar terms is entered into between Twentieth Century and Investors Research;
8.02 Notwithstanding (f) upon the requisite vote of Contract owners having an interest in Twentieth Century to substitute for Twentieth Century's shares the shares of another investment company in accordance with the terms of Contracts for which Twentieth Century's shares had been selected to serve as an underlying investment medium; provided, however, that the Company shall give 60 days' written notice to Twentieth Century of any other provision proposed vote to replace the Fund's shares;
(g) upon assignment of this Agreement, unless made with the written consent of all other parties hereto;
(h) if Twentieth Century's shares are not registered, issued or sold in conformance with Federal or applicable state law or such law precludes the use of Fund shares as the underlying investment medium of Contracts issued or to be issued by the Company, provided that prompt notice shall be given by either party should such situation occur;
(i) at any time during the term option of the First Option, Company by written notice to the Optionee other parries in the event that the Fund ceases to qualify as a Regulated Investment Company under Subchapter M of the Internal Revenue Code or in the event that such Fund fails to advance to meet the Optionor any cash payment or shares required under sub-paragraph 4.02(adiversification requirements specified in Section 4(c) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to or if the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of Company reasonably believes in good faith that such notice of default, cured such default.
8.03 Should the Optionee Fund may fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, so qualify as a Regulated Investment Company or may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then applyfail to meet such diversification requirements.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Fund Participation Agreement (Aul American Unit Trust), Fund Participation Agreement (Aul American Unit Trust)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger and the other Transactions may be abandoned at any time prior to the First Option DeadlineEffective Time, notwithstanding any requisite approval and adoption of this Agreement and the Transactions by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term shareholders of the First OptionCompany or stockholders of NGA, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifas follows:
(a) it shall have first given to by mutual written consent of NGA and the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany;
(b) by either NGA or the Optionee Company if the Effective Time shall not have occurred prior to the date that is 180 days after the date hereof (the “Outside Date”); provided, however, that in the event that any Law is enacted after the date hereof extending the applicable waiting period under the HSR Act, the Outside Date shall automatically be extended by the length of any such extension; provided, further, that this Agreement may not be terminated under this Section 9.01(b) by or on behalf of any party that is in breach or violation of any representation, warranty, covenant, agreement or obligation contained herein and such breach or violation is a material cause of the failure of a condition set forth in Article VIII to be satisfied on or prior to the Outside Date;
(c) by either NGA or the Company if any Governmental Order has notbecome final and nonappealable and has the effect of making consummation of the Transactions illegal or otherwise preventing or prohibiting consummation of the Transactions;
(d) by either NGA or the Company if the NGA Proposal set forth in clause (i) of the definition thereof shall fail to receive the requisite vote for approval at the NGA Stockholders’ Meeting (subject to any adjournment, within twenty-two (22) days following delivery postponement or recess of such notice meeting); provided that the right to terminate this Agreement under this Section 9.01(d) shall not be available to NGA if, at the time of defaultsuch termination, cured NGA (i) is in willful or material breach of any of its covenants and agreements under Section 7.04, or (ii) is in breach or violation of any representation, warranty, covenant, agreement or obligation contained herein and such default.breach or violation is a material cause of the failure of such NGA Proposal to receive the requisite vote for approval;
8.03 Should (e) by NGA upon a breach of any representation, warranty, covenant or agreement on the Optionee fail to comply with part of the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate Company or Merger Sub set forth in this Agreement, or if any representation or warranty of the Company or Merger Sub shall have become untrue, in either case such that the condition set forth in Sections 8.02(a) or 8.02(b) would not be satisfied (“Terminating Company Breach”); provided, that NGA has not waived such Terminating Company Breach and NGA is not then in breach of its representations, warranties, covenants or agreements in this Agreement such that the condition set forth in Sections 8.03(a) or 8.03(b) would not be satisfied; provided, further, that, if such Terminating Company Breach is curable by the Company or Merger Sub, NGA may not terminate this Agreement under this Section 9.01(e) for so long as the Company or Merger Sub (as applicable) continues to diligently exercise its reasonable efforts to cure such breach, unless such breach is not cured within thirty (30) days after notice of such breach is provided by NGA to the Company or Merger Sub; or
(f) by the Company upon a breach of any representation, warranty, covenant or agreement on the part of NGA set forth in this Agreement, or if any representation or warranty of NGA shall have become untrue, in either case such that the condition set forth in Sections 8.03(a) or 8.03(b) would not be satisfied (“Terminating NGA Breach”); provided, that the Company has not waived such Terminating NGA Breach and the provisions Company or Merger Sub are not then in breach of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of its representations, warranties, covenants or agreements in this Agreement and provided such that the Optionee has exercised the First Optioncondition set forth in Sections 8.02(a) or 8.02(b) would not be satisfied; provided, further, that, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”)such Terminating NGA Breach is curable by NGA, the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If Company may not terminate this Agreement terminates prior under this Section 9.01(f) for so long as NGA continues to a First Option Deadline at a time when the Optionee diligently exercise its reasonable efforts to cure such breach, unless such breach is acting as Operator, the Optionee shall forthwith:
not cured within thirty (a30) ensure that all filings for assessment credit have been made in respect days after notice of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor such breach is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining by the Company to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorNGA.
Appears in 2 contracts
Sources: Business Combination Agreement (Lion Electric Co), Business Combination Agreement (Northern Genesis Acquisition Corp.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger and the other Transactions may be abandoned at any time prior to the First Option DeadlineEffective Time, notwithstanding any requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Optionee giving notice stockholders of termination the Company:
(a) By mutual written consent duly authorized by the Boards of Directors of Parent, Purchaser and the Company prior to the OptionorPurchaser's Election Date; or
(b) subject By Parent, Purchaser or the Company if (i) the Effective Time shall not have occurred on or before December 31, 1997; provided, however, that the right to paragraph 8.02terminate this Agreement under this Section 8.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date or (ii) any court of competent jurisdiction in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding United States or other governmental authority shall have issued an order, decree, ruling or taken any other provision action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and nonappealable; or
(c) By Parent if (i) due to an occurrence or circumstance that would result in a failure to satisfy any condition set forth in Annex A or Annex B hereto, as applicable, Purchaser shall have (A) failed to commence the Offer within five business days following the date of public announcement of the execution of this Agreement, if at any time during (B) failed to commence the term Note Tender Offer within 10 business days following the date of public announcement of the First Optionexecution of this Agreement, (C) terminated the Optionee fails Offer or the Note Tender Offer without having accepted any Shares or Notes (and without having obtained related Consents), as the case may be, for payment thereunder or (D) failed to advance pay for Shares or Notes (and obtain related Consents) pursuant to the Optionor Offer or the Note Tender Offer, as the case may be, within 90 days following the commencement thereof; unless such action or inaction under (A), (B), (C) or (D) shall have been caused by or resulted from the failure of Parent or Purchaser to perform in any cash payment material respect any material covenant or shares required under sub-paragraph 4.02(a) hereof, agreement of either of them contained in this Agreement or is in the material breach by Parent or Purchaser of any covenant, material representation or warranty of either of them contained hereinin this Agreement or (ii) prior to the purchase of Shares pursuant to the Offer or the Notes pursuant to the Note Tender Offer, the Optionor may terminate Board or any committee thereof shall have withdrawn or modified in a manner adverse to Purchaser or Parent its approval or recommendation of the Offer, this Agreement, but only if:
(a) it the Merger or any other Transaction or shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issuedrecommended another merger, consolidation, business combination with, or the covenantacquisition of, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.the
Appears in 2 contracts
Sources: Merger Agreement (Ud Delaware Corp), Merger Agreement (Imo Industries Inc)
Termination. 8.01 This Agreement shall terminateand the obligations of the parties hereunder may be terminated:
(a) By mutual written consent of the parties at any time whether or not this Agreement has theretofore been approved by their respective stockholders of Highland;
(b) By either party commencing one business day following the failure of the stockholders of Highland to approve the Merger by the majority required by law at a meeting of Highland stockholders duly called, noticed and held for the purpose of voting upon the Merger, including any adjournment or postponement thereof;
(c) By either party after the expiration of 30 days after the OTS or any other Governmental Authority having jurisdiction over any of the transactions set forth herein, in writing denies or refuses to grant any approval, consent, qualification or ruling required to be obtained under applicable law in order to consummate the Merger, unless prior to the First Option Deadlineexpiration of such 30-day period ▇▇▇▇▇▇▇ elects to appeal such denial or refusal or to petition for reconsideration thereof, in which case such 30-day period shall not be deemed to have run while such appeal or petition for reconsideration is being actively pursued by ▇▇▇▇▇▇▇; provided, that during the Optionee giving 30-day period following any such denial or refusal, the parties shall consult in good faith as to whether any such appeal or petition for reconsideration should be pursued;
(d) By ▇▇▇▇▇▇▇, immediately upon the expiration of 30 days from the date that ▇▇▇▇▇▇▇ has given notice to Highland of termination Highland's material misrepresentation in respect of, or material breach of, any warranty, representation or agreement herein, unless such misrepresentation or breach has been fully and completely corrected or cured prior to the Optionorexpiration of such 30- day period; provided that any such breach or failure would entitle ▇▇▇▇▇▇▇ not to consummate the Merger pursuant to Section 6.2(a);
(e) By Highland immediately upon the expiration of 30 days from the date that Highland has given notice to ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇'▇ material misrepresentation in respect of, or material breach of, any warranty, representation or agreement contained herein, unless such misrepresentation, breach or failure has been fully and completely corrected or cured prior to the expiration of such 30-day period; provided that any such breach or failure would entitle Highland not to consummate the Merger pursuant to Section 6.1(a);
(f) By a party hereto that is not in default hereunder, if the Closing has not occurred on or before January 5, 2001, (the "Termination Date");
(g) By ▇▇▇▇▇▇▇ if the Board of Directors of Highland shall have failed to recommend adoption of this Agreement and approval of the Merger to the stockholders of Highland or withdraws, modifies or changes in any manner adverse to ▇▇▇▇▇▇▇, its recommendation to the stockholders of Highland to approve the Merger referred to in Section 5.2; or
(bh) subject By Highland, and without the need to paragraph 8.02call and convene the meeting of stockholders otherwise required pursuant to Section 5.2(d), if Highland (i) is presented with and notifies ▇▇▇▇▇▇▇ of any fully financed competing Acquisition Proposal made in cash by an acquiror which is financially sound, (ii) provides ▇▇▇▇▇▇▇, for a period of at least 5 business days from the date ▇▇▇▇▇▇▇ is so notified, an opportunity to increase the amount of the Merger Consideration, and (iii) immediately pays the $4 million fee payable to ▇▇▇▇▇▇▇ provided for in Section 7.2(b), in the event the First Option is ▇▇▇▇▇▇▇ does not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereofexercise, or is in breach of any covenantnotifies Highland that it will not exercise, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given its right to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such defaultincrease its offer to Highland.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Highland Bancorp Inc), Merger Agreement (Highland Bancorp Inc)
Termination. 8.01 This Agreement shall terminate:
(a) at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if this Agreement may be terminated and the Acquisition abandoned at any time during the term of the First Option, the Optionee fails to advance prior to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date as follows:
(a) it shall have first given to By mutual written consent duly authorized by the Optionee a notice Boards of default containing particulars Directors of the payment not advanced or shares not issued, or the covenant, representation or warranty breachedBuyer and Seller; andor
(b) By either Buyer or Seller in the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided event that the Optionee has exercised the First OptionAcquisition shall not have been consummated by December 31, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production 2006 (the “Commencement End Date”), if the Second Option shall automatically lapse and be failure to consummate the transactions contemplated hereby on or no further force before such date is not caused by any breach of this Agreement by the Party electing to terminate pursuant to this Section 7.1(b); or
(c) By either Buyer or effect as Seller (provided that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) in the event of a breach by the other Party of any representation, warranty, covenant or agreement contained in this Agreement which breach is reasonably likely, in the opinion of the first Business Day immediately following non-breaching Party, to permit such Party to refuse to consummate the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access transactions contemplated by this Agreement pursuant to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
standards set forth in Section 6.2 (a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure or 6.3(a) or (b), as applicable; provided that if such breach in the representations, warranties, covenants or agreements is curable prior to the End Date through the exercise of reasonable efforts and the breaching Party exercises reasonable efforts to cure such breach, then the non-breaching Party may not terminate this Agreement under this Section 7.1(c) prior to thirty (30) days following the receipt of written notice of such breach; or
(d) By either Buyer or Seller in the event (i) any Consent of any Regulatory Authority required for consummation of the Acquisition and the other transactions contemplated hereby, shall have been denied by final nonappealable action of such authority or if any action taken by such authority is not appealed within the time limit for appeal, or (ii) any Law or Order permanently restraining, enjoining or otherwise prohibiting the consummation of the Acquisition shall have become final and nonappealable; or
(e) By either Buyer or Seller (provided that the Optionor terminating Party is provided with copies not then in material breach of all geotechnical informationany representation, includingwarranty, without limitingcovenant, plans, assay maps, diamond drill records, diamond drill core and all or other data information agreement contained in all formats including without limiting, electronic records pertaining this Agreement) in the event that any of the conditions precedent to the Property obligations of such Party (as contained in Sections 6.2 and relating 6.3, as applicable) to consummate the work Acquisition cannot be satisfied or activities of fulfilled by the Optionee on the Property which had theretofore not been delivered to the Optionordate specified in Section 7.1(b).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Pediatric Services of America Inc)
Termination. 8.01 This Agreement shall terminate:
(a) This Agreement may be terminated and the ----------- transactions contemplated herein may be abandoned at any time prior to the First Option Deadline, Closing:
(i) by the Optionee giving Company or the Purchaser, if the Closing has not occurred by January 31, 1999;
(ii) by mutual written consent of the Company and the Purchaser;
(iii) by the Company, if there has been a material misrepresentation or breach of warranty on the part of the Purchaser in the representations and warranties contained herein or a material breach of covenants on the part of the Purchaser and the same has not been cured within 30 days after notice thereof;
(iv) by the Purchaser, if there has been a material misrepresentation or breach of termination warranty on the part of the Company in the representations and warranties contained herein or a material breach of covenants on the part of the Company and the same has not been cured within 30 days after notice thereof;
(v) by the Purchaser, if the terms of the Credit Facility Amendments are not reasonably satisfactory to the OptionorPurchaser; or
(bvi) subject to paragraph 8.02by either the Purchaser or the Company, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding if any Governmental Entity shall have issued a final order, decree or ruling or taken any other provision of action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by this AgreementAgreement and such order, if at any time during the term of the First Optiondecree, the Optionee fails to advance to the Optionor any cash payment ruling or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it other action shall have first given become final and nonappealable, provided that the party seeking to the Optionee a notice of default containing particulars of the payment not advanced terminate shall have used its best efforts to appeal such order, decree, ruling or shares not issued, or the covenant, representation or warranty breached; andother action.
(b) Notwithstanding anything herein to the Optionee has notcontrary, within twenty-two (22) days following delivery the right to terminate this Agreement under this Section 8.1 shall not be available to any party to the extent the failure of such notice party to fulfill any of defaultits obligations under this Agreement has been the cause of, cured or resulted in, the failure of the Closing to occur on or before such defaultdate (as a result, for example, of an action or failure to act causing a failure of a condition precedent).
8.03 Should (c) A party terminating this Agreement pursuant to this Section 8.1 shall give written notice thereof the Optionee fail to comply with other party hereto, whereupon this Agreement shall terminate and be of no further force and effect, the transactions contemplated hereby shall be abandoned without further action by any party and there shall be no liability on the part of the Company or the Purchaser, except as provided in Section 9.7 hereof and except for any liability for any willful breach hereof; provided however that the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without Sections 7.1 and 7.2 shall survive any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then applysuch termination.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Nutramax Products Inc /De/), Stock Purchase Agreement (Lepone Donald E)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option DeadlineEffective Time, by the Optionee giving notice of termination to the Optionor; or
whether before or (b) subject to paragraph 8.02, except in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision case of this Agreement, if at any time during the term Section 8.1(f) or Section 8.1(g)) after receipt of the First Option, Requisite Viking Vote or the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifRequisite Camber Vote:
(a) it shall have first given to the Optionee a notice by mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and▇▇▇▇▇▇ and ▇▇▇▇▇▇;
(b) by either Viking or Camber if (i) any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Optionee Merger and such denial has notbecome final and nonappealable or (ii) any court or Governmental Entity of competent jurisdiction shall have issued a final and nonappealable order, within twenty-two (22) days following delivery injunction or decree or other legal restraint or prohibition permanently enjoining or preventing the consummation of the Merger, unless the failure to obtain a Requisite Regulatory Approval or the issuance of such notice order, injunction, decree or other legal restraint, as applicable, shall be principally due to the failure of default, cured such default.
8.03 Should the Optionee fail party seeking to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this AgreementAgreement to perform or observe the obligations, covenants and agreements of such party set forth herein;
(c) by either Viking or Camber if the provisions of paragraph 8.06 hereof Merger shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Optionnot have been consummated on or before August 1 September 30, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production 2021 2023 (the “Commencement Termination Date”), unless the Second Option shall automatically lapse and be or no further force or effect as failure of the first Business Day immediately following Closing to occur by such date shall be principally due to the Commencement Date.failure of the party seeking to terminate this Agreement to perform or observe the obligations, covenants and agreements of such party set forth herein;
8.05 The Optionee shall vacate (d) by either Viking or Camber (provided, that the Property within a reasonable time after terminationterminating party is not then in material breach of any obligation, but covenant or other agreement contained herein) if there shall have been a breach of any of the right obligations, covenants or agreements or any of access the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Camber, in the case of a termination by Viking, or Viking, in the case of a termination by Camber, which breach or failure to be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 7.2, in the case of a termination by Viking, or Section 7.3, in the case of a termination by Camber, and which is not cured within thirty (30) days (or such fewer days as remain prior to the Property for three Termination Date) following written notice to Camber, in the case of a termination by Viking, or Viking, in the case of a termination by Camber, or by its nature or timing cannot be cured during such period (3or such fewer days as remain prior to the Termination Date); February 2021 - April 2023 – First Amendment to
(e) months by either Viking or Camber if (i) the Requisite Viking Vote shall not have been obtained following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination a vote taken at the absolute discretion Viking Meeting (unless such Viking Meeting has been validly adjourned or postponed, or validly requested by Camber to be adjourned or postponed, in accordance with Section 6.3, in which case at the final adjournment or postponement thereof) upon the adoption of this Agreement by the stockholders of Viking or (ii) the Requisite Camber Vote shall not have been obtained following a vote taken at the Camber Meeting (unless such Camber Meeting has been validly adjourned or postponed, or validly requested by Viking to be adjourned or postponed, in accordance with Section 6.3, in which case at the final adjournment or postponement thereof) upon the approval of the Optionor shall become Share Issuances by the property stockholders of the Optionor free and clear of Viking;
(f) by ▇▇▇▇▇▇, at any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates time prior to obtaining the Requisite Viking Vote, if (i) Viking or the Board of Directors of Viking shall have made a First Option Deadline at Recommendation Change or (ii) there has been a time when Willful Breach (defined below) by Viking (including by the Optionee is acting as Operator, the Optionee shall forthwith:Board of Directors of Viking) of its obligations under Sections 6.3 or 6.13(a); or
(ag) ensure that all filings for assessment credit by Viking, at any time prior to obtaining the Requisite Camber Vote, if (i) Camber or the Board of Directors of Camber shall have made a Recommendation Change or (ii) there has been made a Willful Breach by ▇▇▇▇▇▇ (including by the Board of Directors of Camber) of its obligations under Sections 6.3 or 6.13(a) in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionorany material respect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Viking Energy Group, Inc.), Agreement and Plan of Merger (Camber Energy, Inc.)
Termination. 8.01 This Agreement shall terminatemay be terminated prior to the Closing:
(a) at by mutual written consent of the Investor and the Company;
(b) by the Company or the Investor, upon written notice to the other party, in the event that the Closing does not occur on or before the Outside Date (as hereinafter defined); provided, however, that the right to terminate this Agreement pursuant to this Section 5.1(b) shall not be available to any time party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to the First Option Deadline, such date;
(c) by the Optionee giving Company or the Investor, upon written notice of termination to the Optionorother party, in the event that any Governmental Entity shall have issued any order, decree or injunction or taken any other action restraining, enjoining or prohibiting any of the transactions contemplated by this Agreement, and such order, decree, injunction or other action shall have become final and nonappealable;
(d) by the Company or the Investor, upon written notice to the other party, if the Company or the Investor or any of their respective Affiliates receives written notice from or is otherwise advised by a Governmental Entity that it will not grant (or intends to rescind or revoke if previously approved) any Required Approval;
(e) by the Investor, if the Investor or any of its Affiliates receives written notice from or is otherwise advised by a Governmental Entity that it will not grant any Required Approval with respect to the Investor on the terms contemplated by this Agreement without imposing any Burdensome Condition;
(f) by the Company, if the Company is not in material breach of any of the terms of this Agreement, and there has been a breach of any representation, warranty, covenant or agreement made by the Investor in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 1.2(c)(3)(i) or (ii) would not be satisfied and such breach or condition is not curable or, if curable, is not cured within thirty (30) days after written notice thereof is given by the Company to the Investor; or
(bg) subject to paragraph 8.02by the Investor, in if the event the First Option Investor is not exercised by in material breach of any of the First Option Deadline from time to time.
8.02 Notwithstanding any other provision terms of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in and there has been a breach of any covenantrepresentation, representation warranty, covenant or warranty contained herein, agreement made by the Optionor may terminate Company in this Agreement, but only if:
(a) it or any such representation and warranty shall have first given to become untrue after the Optionee a notice date of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, such that Section 1.2(c)(2)(i) or (ii) would not be satisfied and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Optionsuch breach or condition is not curable or, if Optionee has curable, is not advanced cured within thirty (30) days after written notice thereof is given by the Second Option Payment Investor to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement DateCompany.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (FJ Capital Management LLC), Stock Purchase Agreement (Centrue Financial Corp)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger and the other Transactions contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, by whether (except as expressly set forth below) before or after the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifCompany Stockholder Approval has been obtained:
(a) it shall have first given to the Optionee a notice of default containing particulars by mutual written consent of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany and Parent;
(b) by either the Optionee Company or Parent:
(i) if any Governmental Entity of competent jurisdiction shall have issued a final and nonappealable order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(i) shall not be available to any party whose failure to fulfill any material covenant or agreement under this Agreement has notbeen the cause of or resulted in the action or event described in this Section 8.1(b)(i) occurring;
(ii) if the Merger shall not have been consummated on or before 5:00 p.m. New York, within twenty-two New York time, on the date that is 12 months after the date of this Agreement (22such date being the “End Date”); provided, that if (A) the Effective Time has not occurred by such date by reason of nonsatisfaction of the condition set forth in Section 7.1(c) or Section 7.2(g) and (B) all other conditions in Article VII have theretofore been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing) or (to the extent permitted by Law) waived, the End Date will be automatically extended to the date that is 15 months after the date of this Agreement (and all references to the End Date herein shall be as so extended); provided, further, that the right to terminate this Agreement under this Section 8.1(b)(ii) shall not be available to any party whose failure to fulfill any material covenant or agreement under this Agreement has been the cause of or resulted in the failure of the Merger to occur on or before such date;
(iii) in the event of a breach by the other party of any covenant or other agreement contained in this Agreement or if any representation and warranty of the other party contained in this Agreement fails to be true and correct which (A) would give rise to the failure of a condition set forth in Section 7.2(a) or 7.2(b) or Section 7.3(a) or 7.3(b), as applicable, if it was continuing as of the Closing Date and (B) cannot be or has not been cured by the earlier of 30 days following delivery after the giving of written notice to the breaching party of such notice of default, cured breach or inaccuracy and the basis for such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions date of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided the proposed termination (a “Terminable Breach”); provided, however, that the Optionee has exercised the First Option, if Optionee has terminating party is not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear then in Terminable Breach of any claim representation, warranty, covenant or encumbrance by or through other agreement contained in this Agreement; or
(iv) if the Optionee.
8.06 If this Agreement terminates prior to Company Stockholder Approval shall not have been obtained upon a First Option Deadline vote held at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.duly held Company Stockholders Meeting;
Appears in 2 contracts
Sources: Merger Agreement (Two Harbors Investment Corp.), Merger Agreement (Two Harbors Investment Corp.)
Termination. 8.01 This Agreement shall terminate:
(a) at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, this Agreement may be terminated and the Merger contemplated hereby may be abandoned by action of the board of directors of BFST or Progressive at any time prior to the Effective Time if:
(i) any court of competent jurisdiction in the United States or other Governmental Body shall have issued an Order enjoining or otherwise prohibiting the Merger or the Bank Merger and such Order shall be final and non-appealable;
(ii) any of the transactions contemplated by this Agreement are disapproved (or the applications or notices for which are suggested or recommended to be withdrawn) by any Governmental Body whose approval is required to consummate any of such transactions;
(iii) the Effective Time has not occurred on or before January 31, 2026, unless one or more of the Regulatory Approvals has not been received on or before January 31, 2026, in which case the Effective Time has not occurred on or before March 31, 2026, or such later date as has been approved in writing by the boards of directors of BFST and Progressive; but the right to terminate under this Section 9.1(a)(iii) shall not be available to any party whose failure to fulfill any material obligation under this Agreement has been the cause of, or has resulted in, the failure of the Effective Time to occur on or before such applicable date; or
(iv) the Progressive Shareholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the Progressive Shareholder Meeting.
(b) This Agreement may be terminated at any time prior to the Effective Time by action of the board of directors of Progressive if BFST shall fail to comply in any material respect with any of its covenants or agreements contained in this Agreement, or if any of the representations or warranties of BFST contained herein shall be inaccurate in any material respect. If the board of directors of Progressive desires to terminate this Agreement because of an alleged breach or inaccuracy as provided in this Section 9.1(b), the board of directors must notify BFST in writing of its intent to terminate stating the reason therefor. BFST shall have thirty (30) days from the receipt of such notice to cure the alleged breach or inaccuracy, if the breach or inaccuracy is capable of being cured.
(c) This Agreement may be terminated at any time prior to the Effective Time by action of the board of directors of BFST if (i) Progressive fails to comply in any material respect with any of its covenants or agreements contained in this Agreement, or if any of the representations or warranties of Progressive contained herein shall be inaccurate in any material respect, (ii) any approval required to be obtained from any regulatory authority or agency is obtained subject to restrictions or conditions on the operations of Progressive, Progressive Bank, BFST or b1BANK that, in the reasonable judgment of BFST, materially and adversely impairs the value of Progressive and its Subsidiaries, taken as a whole, to BFST, that materially and adversely impairs the economic or business benefits of the transactions contemplated by this Agreement to BFST, or otherwise would, in the reasonable judgment of BFST, be so burdensome as to render inadvisable the consummation of the transactions contemplated by this Agreement, or (iii) any of the conditions set forth in Section 5.11(d) shall have occurred. In the event the board of directors of BFST desires to terminate this Agreement because of an alleged breach or inaccuracy as provided in clause (i) of this Section 9.1(c), the board of directors must notify Progressive in writing of its intent to terminate stating the reason therefor. Progressive shall have thirty (30) days from the receipt of such notice to cure the alleged breach or inaccuracy, if the breach or inaccuracy is capable of being cured.
(d) This Agreement may be terminated at any time prior to the Effective Time upon the mutual written consent of BFST and Progressive and the approval of such action by their respective boards of directors.
(e) This Agreement may be terminated at any time before the Progressive Shareholder Approval by the board of directors of Progressive if before such time, Progressive receives an unsolicited bona fide Acquisition Proposal and the board of directors of Progressive determines in its good faith judgment (after consultation with its financial advisors and outside legal counsel), that (i) such Acquisition Proposal (if consummated pursuant to its terms and after giving effect to the payment of the Termination Fee (as defined herein)) is a Superior Proposal and (ii) the failure to terminate this Agreement and accept such Superior Proposal would cause or would be reasonably likely to cause it to violate its fiduciary duties under applicable law; provided, however, that Progressive may not terminate this Agreement under this Section 9.1(e) unless the provisions of Section 5.5(d) have been satisfied:
(f) This Agreement may be terminated at any time before the Closing by the board of directors of BFST if (i) Progressive has materially breached the covenant contained in Section 5.5 in a manner adverse to BFST; (ii) the board of directors of Progressive resolves to accept a Superior Proposal; or (iii) the board of directors of Progressive effects a Change in Recommendation.
(g) This Agreement may be terminated at any time before the Effective Time by Progressive, if the board of directors of Progressive so determines by a vote of the majority of the members of the entire board of directors of Progressive, at any time during the term five (5) day period commencing on the Determination Date (as defined below), if the Purchaser Market Value (as defined below) is less than $19.56.
(i) If Progressive elects to exercise its termination right pursuant to this Section 9.1(g), it shall give written notice of such election to BFST (“Progressive Notice of Termination”). This Agreement shall terminate at the end of the First Optionfifth (5th) day following the date the Progressive Notice of Termination was received by BFST (the “Progressive Termination Effective Time”); provided, however, that the Progressive Notice of Termination may be withdrawn by Progressive at any time prior to the Progressive Termination Effective Time; provided, further, that during the five (5) day period commencing with its receipt of the Progressive Notice of Termination, BFST shall have the option (but not the obligation) to increase the consideration to be received by the holders of Progressive Common Stock hereunder, by either, at BFST’s option, (x) increasing the Exchange Ratio (the “Increased Exchange Ratio”) such that the Per Share Merger Consideration Value paid for each share of Progressive Stock is equal to $137.97, or (y) subject to Section 2.6, increasing the Per Share Merger Consideration Value by an amount in cash (the “Additional Cash Payment”) equal to the product of (A) the Purchaser Market Value times (B) the difference between the Increased Exchange Ratio and the Exchange Ratio.
(ii) If BFST elects to exercise its option pursuant to Section 9.01(g)(i) within such five (5) day period, it shall give prompt written notice to Progressive (and in any event, prior to the Progressive Termination Effective Time) of such election and the Increased Exchange Ratio or, as applicable, the Optionee fails Additional Cash Payment, whereupon no termination shall have occurred pursuant to advance this Section 9.1(g) and this Agreement shall remain in effect in accordance with its terms; provided, that any references in this Agreement to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it Exchange Ratio shall have first given thereafter be deemed to refer to the Optionee a notice of default containing particulars of the payment not advanced or shares not issuedIncreased Exchange Ratio, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreementif applicable, and the provisions of paragraph 8.06 hereof Merger Consideration payable under Section 2.1 shall then applythereafter include, to the extent applicable, the Additional Cash Payment.
8.04 Notwithstanding (h) This Agreement may be terminated at any other provision time before the Effective Time by BFST, if the board of directors of BFST so determines by a vote of the majority of the members of the entire board of directors of BFST, at any time during the five (5) day period commencing on the Determination Date, if the Purchaser Market Value is greater than $29.98.
(i) If BFST elects to exercise its termination right pursuant to this Section 9.1(h), it shall give written notice of such election to Progressive (“BFST Notice of Termination”). This Agreement and provided shall terminate at the end of the fifth (5th) day following the date the BFST Notice of Termination was received by Progressive (the “BFST Termination Effective Time”); provided, however, that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor BFST Notice of Termination may be withdrawn by BFST at any time prior to the commencement BFST Termination Effective Time; provided, further, that during the five (5) day period commencing with its receipt of Commercial Production the BFST Notice of Termination, Progressive shall have the option (but not the obligation) to decrease the Exchange Ratio (the “Commencement DateDecreased Exchange Ratio”), ) such that the Second Option shall automatically lapse and be or no further force or effect as Per Share Merger Consideration Value paid for each share of the first Business Day immediately following the Commencement DateProgressive Stock is equal to $190.48.
8.05 The Optionee (ii) If Progressive elects to exercise its option pursuant to Section 9.01(h)(i) within such five (5) day period, it shall vacate give prompt written notice to BFST (and in any event, prior to the Property within a reasonable time after terminationBFST Termination Effective Time) of such election and the Decreased Exchange Ratio, but whereupon no termination shall have the right of access occurred pursuant to this Section 9.1(h) and this Agreement shall remain in effect in accordance with its terms; provided, that any references in this Agreement to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor Exchange Ratio shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior thereafter be deemed to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work refer to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorDecreased Exchange Ratio.
Appears in 2 contracts
Sources: Merger Agreement (Business First Bancshares, Inc.), Merger Agreement (Business First Bancshares, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) This Agreement may be terminated and the Merger abandoned at any time prior to the First Option DeadlineEffective Time (with any termination by Parent also being an effective termination by Merger Sub):
(i) by mutual written consent of Parent and the Company;
(ii) by Parent or the Company if:
(1) the Merger is not consummated on or before March 15, by 2009; provided, however, that the Optionee giving notice right to terminate this Agreement under this clause (ii)(A) shall not be available to any party whose breach of termination a representation, warranty, covenant or agreement under this Agreement has been the cause of or resulted in the failure of the Closing to the Optionoroccur on or before such date; or
(b2) subject to paragraph 8.02a Governmental Entity shall have issued an Order or taken any other action, in any case having the event effect of permanently restraining, enjoining or otherwise prohibiting the First Option Merger, which Order or other action is final and non-appealable, provided, however, that the right to terminate this Agreement under this Section shall not exercised be available to a party if the imposition of such Order or other action was caused by the First Option Deadline from time failure of such party to time.
8.02 Notwithstanding perform any other provision of its obligations under this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a;
(iii) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only by Parent if:
(a1) it shall have first given to there has been a breach by the Optionee a notice Company of default containing particulars of the payment not advanced any representation, warranty, covenant or shares not issued, agreement contained in this Agreement or the covenant, if any representation or warranty breachedof the Company shall have become untrue, in either case such that the conditions set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied, provided, however, that if such breach in the Company’s representations and warranties or breach by the Company is curable by the Company through exercise of commercially reasonable efforts, then this Agreement may not be terminated pursuant to this Section until the expiration of a fifteen (15) day period after delivery of written notice of such breach (it being understood that this Agreement may not be terminated pursuant to this Section if such breach is cured during such fifteen (15) day period); andor
(2) in the event that changes or developments occur which, individually or in the aggregate, have resulted, or are reasonably likely to result in, a Company Material Adverse Effect; provided, however, that if such Company Material Adverse Effect is curable by the Company through exercise of commercially reasonable efforts, then this Agreement may not be terminated pursuant to this Section until the expiration of a [***] after delivery of written notice of such Company Material Adverse Effect (it being understood that this Agreement may not be terminated pursuant to this Section if such Company Material Adverse Effect is cured during such [***]).
(iv) by the Company if:
(1) there has been a breach by Parent of any representation, warranty, covenant or agreement contained in this Agreement or if any representation or warranty of Parent shall have become untrue, in either case such that the conditions set forth in Section 7.3(a) or Section 7.3(a) would not be satisfied, provided, however, that if such breach in the Company’s representations and warranties or breach by the Company is curable by the Company through exercise of commercially reasonable efforts, then this Agreement may not be terminated pursuant to this Section until the expiration of a [***] after delivery of written notice of such breach (it being understood that this Agreement may not be terminated pursuant to this Section if such breach is cured during such [***]).
(b) the Optionee has notThe party desiring to terminate this Agreement pursuant to Section 8.1(a)(ii), within twenty-two (22iii) days following delivery or (iv) shall give written notice of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment termination to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateother parties hereto.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Valeant Pharmaceuticals International), Merger Agreement (Valeant Pharmaceuticals International)
Termination. 8.01 This Agreement shall terminate:
may only be terminated and the transactions contemplated hereby may only be abandoned (a) at any time prior to the First Option Deadline, Closing):
(a) by mutual consent of the Optionee giving notice of termination to the OptionorParent and Buyer; or
(b) subject by either the Parent or Buyer:
(i) if a court of competent jurisdiction or Governmental Authority shall have issued an order, decree or ruling or taken any other action (which order, decree or ruling the parties hereto shall use their commercially reasonable efforts to paragraph 8.02lift), in each case permanently restraining, enjoining or otherwise prohibiting the event the First Option is not exercised transactions contemplated by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, and such order, decree, ruling or other action shall have become final and non-appealable;
(ii) if at the Closing shall not have occurred on or before December 31, 2012 (the “Termination Date”); provided, however, that (i) the right to terminate this Agreement shall not be available to any time during party whose delay or breach of this Agreement has been the term cause of, or resulted in, the failure of the First OptionClosing to occur on or before such date and (ii) if applicable, if the Optionee fails to advance waiting period under any antitrust or competition law shall not have expired or been terminated, or any approval required under any such law shall not yet have been obtained, then such date shall be extended for a period of thirty (30) days.
(iii) by Buyer, if there has been a material misrepresentation, breach of warranty or breach of covenant by Seller, Parent or International Subsidiary in the representations, warranties and covenants set forth in this Agreement which (i) would result in a failure of a condition set forth in Section 6.2 and (ii) cannot be cured prior to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or Termination Date; provided that Buyer is not then in breach of this Agreement such that any covenant, representation of the conditions set forth in Section 6.1 or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given Section 6.2 would not be satisfied; or cannot be cured prior to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breachedTermination Date; and
(biv) by Parent, if there has been a material misrepresentation, breach of warranty or breach of covenant by Buyer in the Optionee has notrepresentations, within twenty-two warranties and covenants set forth in this Agreement which (22i) days following delivery would result in a failure of such notice of defaulta condition set forth in Section 6.3 and (ii) cannot be cured prior to the Termination Date; provided that neither Seller, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall Parent or International Subsidiary is then apply.
8.04 Notwithstanding any other provision in breach of this Agreement and provided such that any of the Optionee has exercised the First Option, if Optionee has conditions set forth in Section 6.1 or Section 6.3 would not advanced the Second Option Payment to the Optionor be satisfied; or cannot be cured prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Termination Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Iconix Brand Group, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the ----------- Merger may be abandoned at any time prior to the First Option Deadline, Effective Time whether before or after approval and adoption of this Agreement by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment Company's stockholders or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifParent's shareholders:
(a) it shall have first given to by mutual written consent of Parent, Acquisition and the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany;
(b) by Parent and Acquisition or the Optionee Company if:
(i) any court of competent jurisdiction in the United States or other United States federal or state Governmental Entity shall have issued a final order, decree or ruling, or taken any other final action, restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become nonappealable; or
(ii) the Merger has notnot been consummated by April 30, 2004 which date shall be extended to June 30, 2004 if the Merger shall not have been consummated as a result of a failure to satisfy the conditions set forth in Section 5.1(c) (as appropriate, the "Final Date"); provided that no party may terminate this Agreement pursuant to this clause (ii) if such party's failure to fulfill any of its obligations under this Agreement shall have been a principal reason that the Effective Time shall not have occurred on or before said date; or
(iii) the Company shall have convened a Company Stockholders Meeting to vote upon the Merger and shall have failed to obtain the requisite vote of its stockholders at such meeting (including any adjournments thereof);
(iv) Parent shall have convened a Parent Shareholders Meeting to vote upon the Merger and shall have failed to obtain the requisite vote of its stockholders at such meeting (including any adjournments thereof); or
(c) by the Company if:
(i) there shall have been a breach of any representation or warranty on the part of Parent or Acquisition set forth in this Agreement or if any representation or warranty of Parent or Acquisition shall have become untrue such that the conditions set forth in Section 5.2(a) would be incapable of being satisfied by the Final Date; or
(ii) there shall have been a material breach by Parent or Acquisition of any of their respective covenants or agreements hereunder and Parent or Acquisition, as the case may be, has not cured such breach within twenty-two twenty (2220) business days after written notice by the Company thereof;
(d) by Parent and Acquisition if:
(i) there shall have been a breach of any representation or warranty on the part of the Company set forth in this Agreement or if any representation or warranty of the Company shall have become untrue, such that the conditions set forth in Section 5.3(a) would be incapable of being satisfied by the Final Date; provided, however, that Parent shall not be entitled to terminate this Agreement pursuant to this Section 6.1(d)(i) as a result of the Company's breach of Section 2.28 if such breach could have been cured by the Company if Parent had consented to a commercially reasonable amendment or modification to the Financing Agreement and such consent was unreasonably withheld;
(ii) there shall have been a material breach by the Company of one or more of its covenants or agreements hereunder and the Company has not cured such breach within twenty (20) business days after written notice by Parent or Acquisition thereof; provided, however, that Parent shall not be entitled to terminate this Agreement pursuant to this Section 6.1(d)(ii) as a result of the Company's breach of Section 4.1(a)(xxii) if such breach could have been cured by the Company if Parent had consented to a commercially reasonable amendment or modification to the Financing Agreement and such consent was unreasonably withheld; or
(iii) the Fourth Quarter Revenues are less than Thirty Four Million Dollars ($34,000,000);
(iv) Between the date hereof and the Closing Date, the average of the closing sales prices of the Parent Common Stock on the Nasdaq National Market shall have been less than $6.00 per share for fifteen (15) consecutive trading days.
(e) by Parent and Acquisition, if the Company shall have:
(i) failed to make the Company Recommendation, failed to reconfirm the Company Recommendation (including publicly if requested) within three business days following delivery the reasonable request of Parent to do so, or effected a Change in the Company Recommendation, whether or not permitted by the terms hereof; or
(ii) willfully and materially breached its obligations under Section 4.3; or
(iii) failed to call the Company Stockholders Meeting or failed to prepare and mail to its stockholders the Joint Proxy Statement/ Prospectus in accordance with Section 4.2(b); provided that if the Company sends a notice of its intention to terminate this Agreement pursuant to Section 6.1(c), the sending of such notice in and of default, cured such defaultitself shall not be deemed to be a breach or default by the Company that would permit Parent to terminate this Agreement pursuant to this Section 6.1(e).
8.03 Should (f) by the Optionee fail Company, if Parent or Acquisition shall have:
(i) failed to comply make the Parent Recommendation, failed to reconfirm the Parent Recommendation within three business days following the reasonable request of the Company to do so, or effected a change in the Parent Recommendation, whether or not permitted by the terms hereof;
(ii) willfully and materially breached its obligations under Section 4.2(c);
(iii) failed to call the Parent Shareholders Meeting or failed to prepare and mail to its shareholders the Joint Proxy Statement/Prospectus in accordance with the provisions Section 4.2; provided that if Parent or Acquisition sends a notice of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter its intention to terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment pursuant to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”Section 6.1(c), the Second Option sending of such notice in and of itself shall automatically lapse and not be deemed to be a breach or no further force default by Parent or effect as of Acquisition that would permit the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access Company to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If terminate this Agreement terminates prior pursuant to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionorthis Section 6.1(f).
Appears in 2 contracts
Sources: Merger Agreement (Kforce Inc), Merger Agreement (Hall Kinion & Associates Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Contemplated Transactions may be abandoned at any time prior to the First Option DeadlineEffective Time, whether before or after Seller Stockholder Approval:
(a) by the Optionee giving notice mutual written consent of termination to the Optionor; orSeller and Buyer;
(b) subject by either Buyer or Seller if any Governmental Authority of competent jurisdiction shall have issued a final and non-appealable order, decree, judgment, injunction or ruling or taken any other action enjoining, restraining or otherwise prohibiting the consummation of the Contemplated Transactions; provided that the party seeking to paragraph 8.02terminate this Agreement shall have used its Best Efforts to have such order, decree, judgment, injunction or ruling lifted if and to the extent required by Section 5.13;
(c) by either Buyer or Seller if the Contemplated Transactions shall not have been consummated on or before October31, 2011 (the “Termination Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any party if such party failed in any material respect to perform any of its obligations under this Agreement or otherwise violated this Agreement in any material respect;
(d) by Buyer, in the event that Seller shall have (i) failed to receive Seller Stockholder Approval, (ii) had an order, injunction, judgment, ruling or decree, or other legal restraint or prohibition issued by any court of competent jurisdiction, or Governmental Body preventing the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term consummation of the First OptionAgreement and the Contemplated Transactions, the Optionee fails (iii) breached or failed to advance perform in any material respect any of its covenants or obligations required to the Optionor be performed by it under this Agreement or (iv) materially breached any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee or if a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breachedof Seller shall have become untrue, which has not been cured within fifteen (15) calendar days following notice by Buyer, or if the Termination Date is less than fifteen (15) calendar days from the notice by Buyer, has not been or cannot reasonably be expected to be cured by the Termination Date; andprovided that Buyer is not in material breach of any representation, warranty or covenant contained in this Agreement;
(be) by Seller, in the Optionee has notevent that Buyer shall have (i) breached or failed to perform in any material respect any of its covenants or obligations required to be performed by it under this Agreement or (ii) materially breached any of its representations or warranties, in either case which breach or failure would reasonably be expected to prevent or materially delay the consummation of the Contemplated Transactions and is either incurable or, if curable, is not cured by Buyer within twenty-two fifteen (2215) calendar days following notice by Seller or, if the Termination Date is less than fifteen (15) calendar days from the notice by Seller, has not been or cannot reasonably be expected to be cured by the Termination Date; provided at the time of the delivery of such written notice Seller is not in material breach of defaultany representation, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate warranty or covenant contained in this Agreement, and the provisions of paragraph 8.06 hereof ;
(f) by either Buyer or Seller if Seller shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment have failed to the Optionor obtain Seller Stockholder Approval prior to the commencement Termination Date; or
(g) by either Buyer or Seller upon written notice to the other in the event either party determines that it is not satisfied, in its sole discretion, with the results of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as its due diligence review of the first Business Day immediately following the Commencement Dateother.
8.05 The Optionee shall vacate (h) upon written notice by Buyer to Seller if any investment banking firm engaged by Buyer disapproves the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the OptioneeContemplated Transactions.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Augme Technologies, Inc.), Asset Purchase Agreement (Augme Technologies, Inc.)
Termination. 8.01 This Agreement shall terminatemay be terminated as provided below:
(a) at any time prior by mutual consent;
(b) by either party, by not less than three (3) Business Days' notice to the First Option Deadlineother party, if (i) any federal or state court of competent jurisdiction shall have issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the closing, and such order, judgment or decree shall have become final and nonappeallable; or (ii) any statute, rule, order or regulation shall have been enacted or issued by any Governmental Authority which, directly or indirectly, prohibits the consummation of the closing;
(c) by either party, by the Optionee giving not less than three (3) Business Days' notice of termination to the Optionorother party, if any required third-party or Governmental Authority consents, approvals and Permits, the receipt of which is a condition to the obligation to consummate the sale and purchase of the Purchased Assets under Article VI, shall have been denied or shall have been granted but contains terms or conditions which are not reasonably satisfactory to the designated party or parties under Article VI; provided that the terminating party has used Commercially Reasonable Efforts to obtain such consents, approvals and Permits;
(d) by the non-breaching party, by not less than three (3) Business Days' notice to the other party, in the event of the other party's breach or default in the performance by the other party of any representation, warranty, covenant or agreement of such other party hereunder, which breach or default (i) would, individually or in the aggregate with all other uncured breaches and defaults of such other party, constitute grounds for the conditions set forth in Article VI not to be satisfied at the Closing Date and (ii) has not been, or cannot be, cured within thirty (30) days after written notice, describing such breach or default in reasonable detail, is given by the terminating party to the breaching or defaulting party;
(e) by either party in accordance with the provisions of Section 2.12(b); or
(bf) subject to paragraph 8.02by either party, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term a failure of the First Option, the Optionee fails Closing Date to advance to the Optionor any cash payment occur on or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement date that is nine (9) months after the Exercise Date, provided, that if the sole closing condition that has not been met at the expiration of Commercial Production (such nine-month period is the “Commencement Date”failure to have obtained any one or more third-party or Governmental Authority approval(s) despite such party's Commercially Reasonable Efforts, then such nine-month period shall be extended for up to an additional three months to obtain such third-party or Governmental Authority approval(s), the Second Option so long as such party shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Datecontinue to diligently pursue obtaining such approval(s) during such extended period.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Option and Purchase and Sale Agreement (Keyspan Corp), Second Option and Purchase and Sale Agreement (Keyspan Corp)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Reorganization contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, whether before or after any approval by the Optionee giving notice stockholders of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term VoiceStream or Powertel of the First Option, matters presented in connection with the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifReorganization:
(a) it shall have first given to the Optionee a notice by mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andVoiceStream and Powertel;
(b) by either VoiceStream or Powertel:
(i) if the Optionee Reorganization has notnot been effected on or prior to the close of business on December 31, within twenty-two 2001 (22the "Termination Date"); provided that in the event both the DT Merger Agreement and the Powertel Merger Agreement shall have terminated, the Termination Date shall instead be the later of September 30, 2001 and the date that is thirty (30) days following delivery after the date of termination of the DT Merger Agreement and the Powertel Merger Agreement; provided further that the right to terminate this Agreement pursuant to this Section 7.01(b)(i) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Reorganization to have occurred on or prior to such notice of defaultdate; or
(ii) if any Governmental Entity shall have issued an order, cured decree or ruling or taken any other action (including by enacting any law or regulation) (which order, decree, ruling or other action Powertel and VoiceStream shall use its reasonable best efforts to lift) permanently enjoining, restraining or otherwise prohibiting or making illegal the transactions contemplated by this Agreement and such default.
8.03 Should order, decree or ruling or other action shall have become final and nonappealable; provided, however, that the Optionee fail right to terminate this Agreement pursuant to this Section 7.01(b)(ii) shall not be available to any party who has not used its reasonable best efforts to cause such order to be lifted or otherwise taken such action as is required to comply with Section 5.14;
(c) by VoiceStream if (i) Powertel shall have failed to comply with any of its covenants or agreements contained in this Agreement required to be complied with prior to the provisions date of sub-paragraph 8.02(bsuch termination, except as would not reasonably be expected to have a Material Adverse Effect on VoiceStream or the transactions contemplated by this Agreement, which failure to comply cannot be or has not been cured within 30 days after receipt by Powertel of written notice of such failure to comply, (ii) hereofthe stockholders of Powertel shall not approve and adopt the Agreement at the Powertel Stockholders Meeting or any adjournment thereof, or (iii) the Optionorstockholders of VoiceStream shall not approve and adopt the Agreement at the VoiceStream Stockholders Meeting or any adjournment thereof;
(d) by Powertel if (i) VoiceStream shall have failed to comply with any of its respective covenants or agreements contained in this Agreement required to be complied with prior to the date of such termination, except as would not reasonably be expected to have a Material Adverse Effect on Powertel or VoiceStream or the transactions contemplated by this Agreement, which failure to comply cannot be or has not been cured within 30 days after receipt by VoiceStream of written notice of such failure to comply, (ii) the stockholders of Powertel shall not approve and adopt the Agreement at the Powertel Stockholders Meeting or any adjournment thereof; or (iii) the stockholders of VoiceStream shall not approve and adopt the Agreement at the VoiceStream Stockholders Meeting or any adjournment thereof;
(e) (i) by Powertel if there has been a breach by VoiceStream of any representation or warranty (disregarding all qualifications and exceptions contained therein relating to materiality or a Material Adverse Effect or any similar standard or qualification) except any breach that would not reasonably be expected to have a Material Adverse Effect on VoiceStream or the transactions contemplated by this Agreement, in each case which breach cannot be or has not been cured within 30 days after receipt by the breaching party of written notice of the breach and (ii) by VoiceStream if there has been a breach by Powertel of any representation or warranty (disregarding all qualifications and exceptions contained therein relating to materiality or a Material Adverse Effect or any similar standard or qualification) except any breach that would not reasonably be expected to have a Material Adverse Effect on Powertel or VoiceStream or the transactions contemplated by this Agreement, in each case which breach cannot be or has not been cured within 30 days after receipt by the breaching party of written notice of the breach; or
(f) automatically, without any further noticeaction being required of any party hereto, may thereafter terminate this Agreement, and concurrently with the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as closing of the first Business Day immediately following the Commencement DateDT Merger.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Powertel Inc /De/), Agreement and Plan of Reorganization (Voicestream Wireless Corp /De)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the First Option DeadlineEffective Time, by whether before or after the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifILG Shareholder Approval:
(a) it shall have first given to the Optionee a notice by mutual written agreement of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andStarwood and ILG;
(b) by Starwood or ILG, if any Law shall have been promulgated, entered, enforced, enacted or issued or shall be deemed to be applicable to the Optionee has notMerger or the other transactions contemplated hereby by any Governmental Authority of competent jurisdiction which permanently prohibits, within twenty-two restrains or makes illegal the consummation of the Merger or the other transactions contemplated hereby; provided, that the right to terminate the Agreement pursuant to this Section 9.01(b) shall not be available to any party whose action or failure to perform any of its obligations under this Agreement is the primary cause of, or primarily resulted in, the enactment or issuance of any such Law;
(22c) days following delivery of such notice of defaultby Starwood or ILG, cured such default.
8.03 Should if the Optionee fail Closing shall not have occurred on or prior to October 27, 2016 (the “Outside Date”); provided, that the right to terminate the Agreement pursuant to this Section 9.01(c) shall not be available to any Party whose action or failure to comply with its obligations under this Agreement or the provisions of sub-paragraph 8.02(b) hereofSeparation Agreement has been the primary cause of, or has primarily resulted in, the Optionorfailure of the Closing to occur on or prior to such date;
(d) by ILG upon written notice to Starwood, without in the event of a breach of any further noticerepresentation, may thereafter terminate this Agreementwarranty, covenant or agreement on the part of Starwood or Vistana, such that the conditions specified in Section 8.01 or Section 8.03 would not be satisfied at the Closing, and which, (i) with respect to any such breach that is capable of being cured, is not cured by Starwood or Vistana by the provisions earlier of: (x) sixty (60) days after receipt of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision written notice thereof (y) the Outside Date, or (ii) is incapable of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor being cured prior to the commencement of Commercial Production (the “Commencement Outside Date”); provided, the Second Option that ILG shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall not have the right to terminate this Agreement pursuant to this Section 9.01(d) if it is then in breach of access any of its representations, warranties, covenants or agreements set forth in this Agreement to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work extent such breach would give rise to the maximum extent permitted, failure of a condition set forth in Section 8.01 or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.Section 8.02;
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Vistana Signature Experiences, Inc.), Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger may be abandoned at any time prior to the First Option DeadlineEffective Time, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding notwithstanding any other provision requisite approval and adoption of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifas follows:
(a) it shall have first given to by mutual written consent duly authorized by the Optionee a notice Boards of default containing particulars Directors of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andeach of Viacom and CBS;
(b) by either Viacom or CBS, if the Optionee Effective Time shall not have occurred on or before August 31, 2000; provided, however, that the right to terminate this Agreement under this Section 8.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has notbeen the cause of, within twenty-or resulted in, the failure of the Effective Time to occur by such time;
(c) by CBS upon delivery to Viacom of written notice that a Competing Proposal constitutes a CBS Superior Proposal; provided, however, that such termination pursuant to this subsection (c) shall not be effective until two (22) business days have elapsed following delivery to Viacom of such written notice (which written notice will inform Viacom of defaultthe material terms and conditions of the CBS Superior Proposal); provided further, cured however, that such default.termination under this subsection (c) shall not be effective until CBS has made payment to Viacom of the amounts required to be paid pursuant to Section 8.05;
8.03 Should the Optionee (d) by either CBS or Viacom, if this Agreement shall fail to comply with receive the provisions requisite vote for adoption at the CBS Stockholders' Meeting;
(e) by CBS, upon a breach of sub-paragraph 8.02(bany representation, warranty, covenant or agreement on the part of Viacom set forth in this Agreement, or if any representation or warranty of Viacom shall have become untrue, in either case such that the conditions set forth in Sections 7.03(a) hereofor (b) are not capable of being satisfied on or before August 31, 2000 (a "Terminating Viacom Breach");
(f) by Viacom, upon breach of any representation, warranty, covenant or agreement on the Optionorpart of CBS set forth in this Agreement, without or if any further noticerepresentation or warranty of CBS shall have become untrue, may thereafter terminate in either case such that the conditions set forth in Sections 7.02(a) or (b) are not capable of being satisfied on or before August 31, 2000 ("Terminating CBS Breach"); or
(g) by either Viacom or CBS, if any Governmental Authority shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any such Order or other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but action shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances become final and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneenonappealable.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Viacom Inc), Agreement and Plan of Merger (CBS Corp)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Mergers may be abandoned at any time prior to the First Option DeadlineBlocker Merger Effective Time, whether before or after adoption of this Agreement by the Optionee stockholders of Parent:
(a) by mutual written consent of the Company and Parent;
(b) by either the Company or Parent:
(i) if (A) any Governmental Entity having jurisdiction over any party hereto shall have issued any order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Mergers and such order, decree, ruling or injunction or other action shall have become final and nonappealable or if there shall be adopted any law or regulation that makes consummation of the Mergers illegal or otherwise prohibited; provided however, that the right to terminate this Agreement under this Section 8.1(b)(i)(A) shall not be available to any party whose breach of this Agreement has caused any of the conditions set forth in Sections 6.1, 6.2 or 6.3 hereof to not be or not be able to be satisfied on or prior to the Closing, or (B) the Parent Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote upon a vote held at a duly held meeting of the stockholders of Parent, or at any adjournment thereof;
(ii) if the Mergers shall not have been consummated by July 29, 2016 (the “Termination Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b)(ii) shall not be available to any party in breach of this Agreement such that the conditions set forth in Sections 6.1, 6.2 or 6.3 hereof are will not be satisfied on or prior to the Closing;
(iii) in the event of a breach by the other party of any representation, warranty, covenant or other agreement contained in this Agreement which (A) would give rise to the failure of a condition set forth in Section 6.2 or Section 6.3, as applicable, and (B) cannot be or has not been cured by the earlier of thirty (30) days after the giving of written notice to the breaching party of such breach and the Termination Date (a “Terminable Breach”); provided that the terminating party is not then in Terminable Breach of any representation, warranty, covenant or other agreement contained in this Agreement; or
(c) by the Company if the Board of Directors of Parent shall have publicly withdrawn, modified or changed, in any manner that is adverse to the Company, its approval or recommendation to the stockholders of Parent with respect to any of the Transaction Proposals.
(d) A terminating party shall provide written notice of termination to the Optionor; or
(b) subject to paragraph 8.02other party specifying with particularity the reason for such termination, and any termination, if otherwise in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of accordance with this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following be effective immediately upon delivery of such written notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateother party.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Nexeo Solutions Holdings, LLC), Merger Agreement (WL Ross Holding Corp.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Transactions abandoned at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing:
(a) by mutual written consent of both the Company and SPAC at any time;
(b) by the Company or SPAC, if the Closing shall not have occurred by 5:00 p.m. (Hong Kong time) on October 26, 2024 (the “Agreement End Date”); provided, that neither the Company nor SPAC may terminate this Agreement pursuant to this Section 9.1(b) if it is in material breach of any of its obligations hereunder and such material breach causes, or results in, either (i) the failure to satisfy the conditions to the obligations of the terminating party to consummate the Closing set forth in Article VIII prior to the Agreement End Date, or (ii) the failure of the Closing to have occurred prior to the Agreement End Date;
(c) by the Company or SPAC, if any Governmental Authority (except for the Taiwan DIR Approval) shall have first given enacted, issued, promulgated, enforced or entered any Governmental Order, which has become final and nonappealable and has the effect of making consummation of the Merger or the FST Restructuring illegal or otherwise preventing or prohibiting consummation of the Merger or the FST Restructuring;
(d) by the Company, if the SPAC Shareholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the SPAC Shareholders’ Meeting duly convened therefor and at any adjournment or postponement thereof, as applicable;
(e) by the Company, if SPAC is in material breach of any of its obligations hereunder and such material breach will result in the failure to satisfy the conditions to the Optionee a notice of default containing particulars obligations of the payment Company Parties to consummate the Closing set forth in Section 8.3, provided that if such material breaches are curable by SPAC, then, for a period of up to thirty (30) calendar days after receipt by SPAC of notice from the Company of such material breaches, but only as long as SPAC continues to use its reasonable best efforts to cure such material breaches, such termination by the Company shall be effective by the end of such thirty (30) calendar days;
(f) by SPAC, if the condition in Section 8.2(c) is not advanced or shares will not issuedbe satisfied at the FST Restructuring Closing;
(g) by SPAC, if (i) the Company Parties fail to receive the Phase I DIR Approval within one hundred thirty two (132) calendar days after the date of this Agreement; (ii) the Company Parties fail to receive the Phase II DIR Approval within two hundred and ten (210) calendar days after the date of this Agreement; or (iii) such Taiwan DIR Approval is revoked, terminated or loses effect, provided that in each case of (i) and (ii), if the covenantCompany provides a written confirmation prior to the relevant deadline (or if later, representation the date on which SPAC notifies the Company it wants to terminate under this Section 9.1(g)) to SPAC, with reasonable evidence demonstrating that failure to obtain Phase I DIR Approval or warranty breachedPhase II DIR Approval (as applicable) was due to curable defects, then, for sixty (60) calendar days from the delivery of such confirmation, any termination notice from SPAC under this Section 9.1(g) shall not be effective, as long as the Company Parties use their respective best efforts in such period to cure all such defects and seek the Taiwan DIR Approval, and if by the end of the period the Taiwan DIR Approval has not been obtained, any termination notice by SPAC under this Section 9.1(g) can be immediately effective;
(h) by SPAC, if the Company has suffered or there is a Company Material Adverse Effect;
(i) by SPAC, if the Company Parties are in material breach of any of their respective obligations hereunder and such material breach will result in the failure to satisfy the conditions to the obligations of SPAC to consummate the Closing set forth in Section 8.2, provided that if such material breaches are curable by the Company Parties, then, for a period of up to thirty (30) calendar days after receipt by the Company of notice from SPAC of such material breaches, but only as long as the Company Parties continue to use their respective reasonable best efforts to cure such material breaches, such termination by SPAC shall be effective by the end of such thirty (30) calendar days; and
(bj) by SPAC, if the Optionee has not, Company Shareholder Approval shall not have been obtained within twentyforty-two five (2245) days following delivery of such notice of default, cured such default.
8.03 Should Business Days after the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision date of this Agreement and provided that the Optionee has exercised the First Optionat any adjournment or postponement thereof, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateapplicable.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Business Combination Agreement (Chenghe Acquisition I Co.), Business Combination Agreement (Chenghe Acquisition I Co.)
Termination. 8.01 This Agreement shall terminatemay be terminated by notice in writing as follows:
(a) at any time prior by mutual consent of the Seller and the Offeror;
(b) by the Seller, if the Offer is not commenced within the time contemplated by Subsection 1.1(b) or if the Offer has been terminated or withdrawn;
(c) by the Seller, provided the Seller is not in breach of any of its obligations hereunder, if the Offeror has not taken up and paid for Subject Shares deposited under the Offer within one hundred and twenty (120) days after the date of the Offer; provided, however, that if the Offeror’s take up and payment for Subject Shares deposited under the Offer is delayed by an injunction or order made by a court or regulatory authority of competent jurisdiction, then provided that such injunction or order is being contested or appealed or such regulatory waiver, consent or approval being actively sought, as applicable, this Agreement shall not be terminated by the Seller pursuant to this Section 4.1(c) until the earlier of (i) one hundred and eighty (180) days after the date the Offer is commenced, and (ii) the 10th business day following the date on which such injunction or order ceases to be in effect or such waiver, consent or approval or declaration of effectiveness is obtained, as applicable;
(d) by the Seller, when not in material default in its performance of its obligations hereunder, at any time if the Offer is modified in a manner contrary to the First Option Deadline, by the Optionee giving notice terms of termination this Agreement or contrary to the Optionorprovisions of applicable securities legislation;
(e) by either the Seller or the Offeror, when not in material default in its performance of its obligations hereunder, if the other party has not complied with its covenants contained herein in all material respects;
(f) by either the Seller or the Offeror, when not in material default in the performance of its obligations hereunder, if any of the representations and warranties of the other party contained herein is untrue or inaccurate in any material respect; or
(bg) subject to paragraph 8.02by the Offeror, in the event the First Option if any Condition is not exercised by satisfied at the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term Expiry Time of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, Offer and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee Offeror has not advanced the Second Option Payment elected to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Datewaive such condition.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Lock Up Agreement (Denison Mines Corp.), Lock Up Agreement (Denison Mines Corp.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option DeadlineEffective Time, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term whether before or after approval of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained CTS Shareholder described herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice By mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andMicrofield and CTS;
(b) By either Microfield or CTS if (i) any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Optionee has notcompletion of the transactions contemplated by this Agreement and such order, within twenty-two decree or ruling or other action shall have become final and nonappealable, or (22ii) days following delivery the CTS Shareholders does not approve the Merger;
(c) By Microfield if:
(i) CTS shall have breached or failed to perform in any material respect any of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate its covenants or other agreements contained in this Agreement, which breach or failure to perform is incapable of being cured or has not been cured within 5 days after the giving of written notice thereof to CTS;
(ii) Any representation or warranty of CTS shall not have been true and correct when made (without for this purpose giving effect to qualifications of materiality contained in such representation and warranty), if such failure to be true and correct, individually or in the provisions aggregate, would reasonably be expected to have a Material Adverse Effect;
(iii) Any representation or warranty of paragraph 8.06 hereof CTS shall then applycease to be true and correct at any later date (without for this purpose giving effect to qualifications of materiality contained in such representation and warranty) as if made on such date (other than representations and warranties made as of a specified date) other than as a result of a breach or failure to perform by Microfield of any of its covenants or agreements under this Agreement if such failure to be true and correct, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; provided, however, that such representation or warranty is incapable of being cured or has not been cured within 5 days after the giving of written notice thereof to CTS;
(iv) Since the date of the issuance of the CTS Financial Statements, CTS shall have suffered a Material Adverse Change, or any representation or warranty contained in the VSI Merger Agreement shall cease to be true and correct at any later date, as if made on such date.
8.04 Notwithstanding (d) By CTS if:
(i) Microfield or Merger Sub shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other provision agreements contained in this Agreement, which breach or failure to perform is incapable of being cured or has not been cured within 5 days after the giving of written notice thereof to Microfield; 39-AGREEMENT AND PLAN OF MERGER
(ii) Any representation or warranty of Microfield or Merger Sub shall not have been true and correct when made (without for this purpose giving effect to qualifications of materiality contained in such representation and warranty), if such failure to be true and correct, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(iii) Any representation or warranty of Microfield or Merger Sub shall cease to be true and correct at any later date (without for this purpose giving effect to qualifications of materiality contained in such representation and warranty) as if made on such date (other than representations and warranties made as of a specified date) other than as a result of a breach or failure to perform by CTS of any of its covenants or agreements under this Agreement if such failure to be true and correct, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; provided, however, that such representation or warranty is incapable of being cured or has not been cured within 5 days after the giving of written notice thereof to Microfield or Merger Sub;
(iv) Since June 29, 2003, Microfield shall have suffered a Material Adverse Change.
(e) By either Microfield or CTS if the Merger is not completed on or before October 1, 2003, provided that the Optionee has exercised right to terminate this Agreement pursuant to this Section 9.1(e) shall not be available to any party where failure to perform any of its obligations under this Agreement results in the First Option, if Optionee has not advanced failure of the Second Option Payment Merger to be completed by such time. The party desiring to terminate this Agreement pursuant to the Optionor prior preceding paragraphs shall give written notice of such termination to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateother party in accordance with Section 10.5 hereof.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Microfield Group Inc), Merger Agreement (Microfield Group Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option DeadlineEffective Time, whether before or after approval of the matters presented in connection with the Merger by the shareholders of State Bancorp:
(a) by mutual consent of State Bancorp and Valley;
(b) by either Valley or State Bancorp upon written notice to the other party if the approval of any Governmental Entity required for consummation of the Merger and the other transactions contemplated by this Agreement is denied by final, non-appealable action of such Governmental Entity; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to any party whose failure to comply with any provision of this Agreement has been the cause of, or materially contributed to, such action;
(c) by either Valley or State Bancorp, if the Merger shall not have been consummated on or before the Cutoff Date, or such later date as shall have been agreed to in writing by Valley and State Bancorp), provided, however, that no party may terminate this Agreement pursuant to this Section 7.1(c) if the failure of the Closing to have occurred on or before said date was due to such party’s material breach of any representation, warranty, covenant or agreement contained herein;
(d) by either Valley or State Bancorp if the approval of the shareholders of State Bancorp required for the consummation of the Merger shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting of such shareholders or at any adjournment or postponement thereof;
(e) by either Valley or State Bancorp (provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein), if there shall have been a breach of any of the representations or warranties set forth in this Agreement on the part of the other party, which breach is not cured within thirty (30) days following written notice to the party committing such breach, or which breach, by its nature, cannot be cured prior to the Optionee giving notice Cutoff Date, and which breach of a representation or warranty, would, individually or in the aggregate with other breaches, (i) result in a Material Adverse Effect with respect to the party committing such breach, or (ii) result in one or more of the conditions set forth in Sections 6.1, 6.2 (in case of a termination by Valley) or 6.3 (in case of termination by State Bancorp) not to be satisfied or not capable of being satisfied by the Cutoff Date;
(f) by either Valley or State Bancorp (provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein), if there shall have been a material breach of any of the covenants or agreements set forth in this Agreement on the part of the other party, which breach is not cured within thirty (30) days following written notice to the Optionorparty committing such breach, or which breach, by its nature, cannot be cured prior to the Cutoff Date, and which breach of a representation, warranty or covenant, would, individually or in the aggregate with other breaches, (i) result in a Material Adverse Effect with respect to the party committing such breach, or (ii) result in one or more of the conditions set forth in Sections 6.1, 6.2 (in case of a termination by Valley) or 6.3 (in case of termination by State Bancorp) not to be satisfied or not capable of being satisfied by the Cutoff Date;
(g) by the Board of Directors of Valley if, prior to receipt of the State Bancorp Shareholder Approval, State Bancorp or the State Bancorp Board of Directors (or any committee thereof) has (A) effected a State Bancorp Subsequent Determination or approved, adopted, endorsed or recommended any Acquisition Proposal, (B) failed to recommend the Merger and the approval of this Agreement by the shareholders of State Bancorp, (C) breached the terms of Section 5.3 in any material respect adverse to Valley, or (D) in response to the commencement (other than by Valley or a Subsidiary thereof) of a tender offer or exchange offer for 25% or more of the outstanding shares of State Bancorp Common Stock, recommended that the shareholders of State Bancorp tender their shares in such tender or exchange offer or otherwise failed to recommend that such shareholders reject such tender offer or exchange offer within the ten (10) Business Day period specified in Rule 14e-2(a) under the Exchange Act;
(h) By State Bancorp if State Bancorp has received a Superior Proposal, and in accordance with Section 5.3 of this Agreement, has entered into an acquisition agreement with respect to the Superior Proposal;
(i) by Valley if one or more of the conditions set forth in Sections 6.1 and 6.2 are not satisfied and are not capable of being satisfied by the Cutoff Date;
(j) by State Bancorp if one or more of the conditions set forth in Sections 6.1 and 6.3 are not satisfied and are not capable of being satisfied by the Cutoff Date; or
(bk) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this AgreementState Bancorp, if the State Bancorp Board of Directors so determines by a majority vote of the members of the entire State Bancorp Board of Directors, at any time during the term of five (5) day period commencing on the First Optionday after the Determination Date (the “Effective Termination Date”), if and only if the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only iffollowing conditions are satisfied:
(1) the Valley Final Price is less than $11.04 (such amount taking into consideration the Valley Stock Dividend);
(2) the number (the “Valley Ratio”) obtained by dividing (a) it the Valley Final Price by (b) the Valley Initial Price shall have first given to be less than the Optionee a notice of default containing particulars of number obtained by dividing (x) the payment not advanced or shares not issued, or Final Index Price by (y) the covenant, representation or warranty breachedInitial Index Price and subtracting 0.20 from such quotient (the “Index Ratio”); and
(b3) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for State Bancorp provides Valley three (3) months following termination for the purpose business days prior written notice of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Propertysuch termination. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond For purposes of this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as OperatorSection 7.1(k), the Optionee following terms shall forthwithhave the meanings indicated below:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Valley National Bancorp), Merger Agreement (State Bancorp Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
Effective Time (b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term whether before or after receipt of the First OptionCompany Stockholder Approval, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereofexcept as specifically provided below), or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifas set forth below:
(a) it shall have first given to the Optionee a notice of default containing particulars by mutual written consent of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany and Parent;
(b) by either the Optionee Company or Parent, upon written notice to the other party:
(i) if the Merger is not consummated on or before January 31, 2025 (the “End Date”); provided that if by January 31, 2025, any of the conditions set forth in Section 7.1(b) shall not have been satisfied but all of the other conditions to the consummation of the Merger set forth in Article VII shall have been satisfied (or, in the case of any conditions that by their nature are to be satisfied at the Closing, shall be capable of being satisfied), then either the Company or Parent may extend the End Date by written notice to the other party to March 31, 2025 (upon any extension in accordance with this Section 8.1(b)(i), references to the End Date in this Agreement shall mean the End Date as so extended); provided, however, that the right to terminate this Agreement under this Section 8.1(b)(i) shall not be available to any party if a breach by such party of its obligations under this Agreement has notbeen the principal cause of, within twentyor principally resulted in, such failure of the Merger to occur on or before the End Date;
(ii) if (A) any Governmental Entity that must grant a Required Regulatory Approval listed in Section 7.1(b) of the Parent Disclosure Schedule has denied approval of the Merger and such denial has become final and non-two appealable; (22B) days following delivery any court or Governmental Entity of competent jurisdiction shall have issued a final and non-appealable order, injunction or decree or other legal restraint or prohibition permanently enjoining or preventing the consummation of the Merger, or (C) any Israeli court shall have issued an order, injunction or decree or other legal restraint or prohibition imposing conditions that are unacceptable to Parent; provided, however, that the right to terminate this Agreement under this Section 8.1(b)(ii) shall not be available to any party if a breach by such party of its obligations under this Agreement has been the principal cause of, or principally resulted in, such failure to obtain such Required Regulatory Approval or the issuance of such notice order, injunction, decree or other legal restraint, as applicable;
(iii) if the Company Stockholder Approval shall not have been obtained following a vote taken thereon at the Company Stockholders’ Meeting (unless such Company Stockholders’ Meeting has been validly adjourned or postponed, in which case at the final adjournment or postponement thereof);
(c) by the Company, if Parent or Merger Sub breaches or fails to perform any of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate its covenants or agreements contained in this Agreement, or if any of the representations or warranties of Parent or Merger Sub contained herein fails to be true and correct, which breach or failure (A) either individually or in the provisions aggregate with all other breaches by Parent or Merger Sub or failure of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision Parent’s and Merger Sub’s representations and warranties to be true, would give rise to the failure of this Agreement a condition set forth in Section 7.3(a) or Section 7.3(b), as the case may be; and (B) if reasonably capable of being cured, has not been cured prior to the earlier of 30 days (or such fewer days as remain until the End Date) after Parent’s receipt of written notice of such breach from the Company, and provided that the Optionee has exercised Company is not then in breach of any covenant or agreement contained in this Agreement and no representation or warranty of the First OptionCompany contained herein then fails to be true and correct such that the conditions set forth in Section 7.2(a) or Section 7.2(b), as the case may be, could not then be satisfied;
(d) by Parent, if Optionee the Company breaches or fails to perform any of its covenants or agreements contained in this Agreement, or if any of the representations or warranties of the Company contained herein fails to be true and correct, which breach or failure (A) either individually or in the aggregate with all other breaches by the Company or failure of the Company’s representations and warranties to be true, would give rise to the failure of a condition set forth in Section 7.2(a) or Section 7.2(b), as the case may be, and (B) if reasonably capable of being cured, has not advanced the Second Option Payment to the Optionor been cured prior to the commencement earlier of Commercial Production 30 days (or such fewer days as remain until the End Date) after the Company’s receipt of written notice of such breach from Parent, and provided that Parent is not then in breach of any covenant or agreement contained in this Agreement and no representation or warranty of Parent contained herein then fails to be true and correct such that the conditions set forth in Section 7.3(a) or Section 7.3(b), as the case may be, could not then be satisfied;
(e) by Parent, prior to the Company Stockholder Approval, if the Company Board or any committee thereof shall have made a Company Change in Recommendation;
(f) by Parent, (i) to the extent the Company’s Cash Burn exceeds $20,000,000 during any fiscal quarter beginning with the Company’s fiscal quarter ending September 30, 2024 or (ii) to the extent the Company has drawn on the Bridge Loan Facility, any “Commencement DateEvent of Default” under the Loan Documentation has occurred (whether or not the payment of any outstanding loans thereunder have been accelerated); or
(g) by Parent if the Company or any Company Subsidiary (i) applies for, consents to the appointment of, or is otherwise appointed, any receiver, trustee, custodian or liquidator of its property, (ii) admits in writing its inability to pay its debts as they mature, (iii) makes a general assignment for the benefit of its creditors, (iv) files a petition in bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors, or otherwise takes advantage of, or is placed into bankruptcy under, any bankruptcy, reorganization, insolvency or liquidation Laws or statutes, or files an answer admitting the material allegations of a petition filed against the Company, as the case may be, in any proceeding under any such Laws or statutes, or (v) undergoes the expiration of sixty (60) days following the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating it as bankrupt or appointing a trustee of its assets (each of clauses (i) through (v), a “Bankruptcy”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Nano Dimension Ltd.), Merger Agreement (Desktop Metal, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) Plan of Merger may be terminated at any time prior to the First Option DeadlineEffective Time, whether before or after approval of matters presented in connection with the Merger by the Optionee giving notice holders of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision shares of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifHorizon/CMS Common Stock:
(a) it shall have first given to the Optionee a notice by mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andHEALTHSOUTH and Horizon/CMS;
(b) by either HEALTHSOUTH or Horizon/CMS:
(i) if, upon a vote at a duly held meeting of stockholders or any adjournment thereof, any required approval of this Plan of Merger and the Optionee has notMerger by the holders of shares of Horizon/CMS Common Stock shall not have been obtained;
(ii) if the Merger shall not have been consummated on or before December 31, within twenty-two (22) days following delivery 1997, unless the failure to consummate the Merger is the result of a willful and material breach of this Plan of Merger by the party seeking to terminate this Plan of Merger; provided, however, that the passage of such notice period shall be tolled for any part thereof (but not exceeding 60 days in the aggregate) during which any party shall be subject to a nonfinal order, decree, ruling or action of defaultany court of competent jurisdiction or other governmental agency or authority restraining, cured enjoining or otherwise prohibiting the consummation of the Merger or the calling or holding of a meeting of stockholders;
(iii) if any court of competent jurisdiction or other governmental agency or authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the Merger and such default.order, decree, ruling or other action shall have become final and nonappealable;
8.03 Should (iv) in the Optionee fail event of a breach by the other party of any representation, warranty, covenant or other agreement contained in this Plan of Merger which (A) would give rise to comply with the provisions failure of sub-paragraph 8.02(ba condition set forth in Section 9.2(a) hereofor (b) or Section 9.3(a) or (b), the Optionor, without any further notice, may thereafter terminate this Agreementas applicable, and (B) cannot be or has not been cured within 30 days after the provisions giving of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision written notice to the breaching party of this Agreement and such breach (a "Material Breach") (provided that the Optionee has exercised terminating party is not then in Material Breach of any representation, warranty, covenant or other agreement contained in this Plan of Merger); or
(v) if either HEALTHSOUTH or Horizon/CMS gives notice of termination as a non-notifying party pursuant to Section 7.9;
(c) By either HEALTHSOUTH or Horizon/CMS if any of the First Option, if Optionee has not advanced the Second Option Payment conditions to the Optionor obligation of such party to effect the Merger set forth in Section 9.1, Section 9.2 (in the case of HEALTHSOUTH) or Section 9.3 (in the case of Horizon/CMS) is not capable of being satisfied prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as end of the first Business Day immediately following the Commencement Date.period referred to in Section 8.1(b)(ii); or
8.05 The Optionee shall vacate the Property within a reasonable time after termination(d) By Horizon/CMS, but if Horizon/CMS's Board of Directors shall have (i) determined, in the right exercise of access its fiduciary duties under applicable law, not to recommend the Merger to the Property for three holders of Horizon/CMS Common Stock or shall have withdrawn such recommendation or (3ii) months following termination for the purpose approved, recommended or endorsed any Acquisition Transaction (as defined in Section 7.10) other than this Plan of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances Merger or supplies on the Property beyond this three (3iii) month period after termination at the absolute discretion resolved to do any of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneeforegoing.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Horizon CMS Healthcare Corp), Merger Agreement (Healthsouth Corp)
Termination. 8.01 This Agreement shall terminatemay be terminated and the transactions contemplated hereby abandoned:
(a) at any time by written consent of the Company and Acquiror;
(b) prior to the First Option DeadlineClosing, by written notice to the Optionee giving Company from Acquiror if (i) there is any breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, such that the conditions specified in Section 9.02(a) or Section 9.02(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company through the exercise of its commercially reasonable efforts, then, for a period of up to forty-five (45) days (or any shorter period of the time that remains between the date Acquiror provides written notice of such violation or breach and the Termination Date) after receipt by the Company of notice from Acquiror of such breach, but only as long as the Company continues to use its commercially reasonable efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period, (ii) the Closing has not occurred on or before the later of (A) August 19, 2023 and (B) to the Optionorextent Acquiror Stockholders duly approve a later date for completion of a Business Combination, such later date (the later of (A) and (B), the “Termination Date”), or (iii) the consummation of the Transactions is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or a statute, rule or regulation; provided, that the right to terminate this Agreement under subsection (ii) or (iii) shall not be available if Acquiror’s or Merger Sub’s failure to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date;
(c) prior to the Closing, by written notice to Acquiror from the Company if (i) there is any breach of any representation, warranty, covenant or agreement on the part of Acquiror or Merger Sub set forth in this Agreement, such that the conditions specified in Section 9.03(a), Section 9.03(b) or Section 9.03(c) would not be satisfied at the Closing (a “Terminating Acquiror Breach”), except that, if any such Terminating Acquiror Breach is curable by Acquiror through the exercise of its commercially reasonable efforts, then, for a period of up to forty-five (45) days (or any shorter period of the time that remains between the date Acquiror provides written notice of such violation or breach and the Termination Date) after receipt by Acquiror of notice from the Company of such breach, but only as long as Acquiror continues to exercise such commercially reasonable efforts to cure such Terminating Acquiror Breach (the “Acquiror Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Acquiror Breach is not cured within the Acquiror Cure Period, (ii) the Closing has not occurred on or before the Termination Date, or (iii) the consummation of the Transactions is permanently enjoined or prohibited by the terms of a final, non-appealable Governmental Order or a statute, rule or regulation; provided, that the right to terminate this Agreement under subsection (ii) or (iii) shall not be available if the Company’s failure to fulfill any obligation under this Agreement has been the primary cause of, or primarily resulted in, the failure of the Closing to occur on or before such date;
(d) by written notice from Acquiror to the Company if the Company Stockholder Consent has not been obtained and delivered to Acquiror within seven (7) days following the execution of this Agreement pursuant to Section 6.07; or
(be) by written notice from either the Company or Acquiror to the other party if this Agreement shall fail to receive the Acquiror Stockholder Approval at the Acquiror Meeting (subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term adjournment or recess of the First Option, the Optionee fails meeting). Any party hereto terminating this Agreement pursuant to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it Section 10.01 shall have first given to the Optionee a give written notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail termination to comply each other party hereto in accordance with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that specifying the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment provision or provisions hereof pursuant to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Datewhich such termination is being effected.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (American Battery Materials, Inc.), Merger Agreement (Seaport Global Acquisition II Corp.)
Termination. 8.01 This Anything contained in this Agreement shall terminate:
(a) to the contrary notwithstanding, this Agreement may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date:
(a) it shall have first given to by the Optionee a notice mutual consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andBuyer and Aon;
(b) the Optionee has notby Buyer if Aon shall have breached any of its representations, within twenty-two (22) days following delivery of such notice of defaultwarranties, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate covenants or agreements contained in this Agreement, and which would give rise to the provisions failure of paragraph 8.06 hereof a condition set forth in Article IX, which breach cannot be cured by the Termination Date as the same may be extended pursuant to Section 12.1(e) or which has not been cured within 60 days of notice thereof by Buyer;
(c) by Aon if Buyer shall then apply.
8.04 Notwithstanding have breached any other provision of its representations, warranties, covenants or agreements contained in this Agreement which would give rise to the failure of a condition set forth in Article X which breach cannot be cured by the Termination Date as the same may be extended pursuant to Section 12.1(e) or which has not been cured within 60 days of notice thereof by Aon;
(d) by Buyer or Aon if any court of competent jurisdiction in the United States or other United States Administrative Authority shall have issued a final and provided non-appealable order, decree or ruling permanently restraining, enjoining or otherwise prohibiting the consummation of any material transaction contemplated hereby; or
(e) by Buyer or Aon if the Closing shall not have occurred on or before July 31, 2008 (the “Termination Date”) (or such later date as may be agreed in writing to by Buyer and Aon); provided, however, that either Buyer or Aon may by written notice to the other delivered on or before July 31, 2008 extend the Termination Date until any date prior to September 30, 2008 if the failure of the Closing to have occurred on or before July 31, 2008 shall have resulted from the failure of the condition set forth in Sections 9.2 or 9.3 or Sections 10.2 or 10.3; provided, further, that the Optionee right to terminate this Agreement pursuant to this Section 12.1(e) shall not be available to any party whose failure to fulfill any of its obligations contained in this Agreement has exercised been the First Optioncause of, if Optionee has not advanced or resulted in, the Second Option Payment failure of the Closing to the Optionor have occurred on or prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateaforesaid date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Aon Corp), Stock Purchase Agreement (Ace LTD)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Transactions may be abandoned at any time prior to the First Option DeadlineEffective Time, whether before or after obtaining the Company Stockholder Approval, as follows (the date of any such termination, the “Termination Date”):
(a) by mutual written consent of Parent and the Company at any time prior to the Effective Time whether before or after the Company Stockholder Approval;
(b) by either Parent or the Company, if the Effective Time shall not have occurred on or before September 30, 2018 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 8.01(b) shall not be available to a Party whose failure to fulfill any obligation under this Agreement caused the failure of the Effective Time to occur on or before such date;
(c) by either Parent or the Company, if any Governmental Authority shall have (i) enacted, issued, promulgated or enforced any Law that makes consummation of the Merger illegal or otherwise prohibited or (ii) enacted, issued, promulgated, enforced or entered any Order which has the effect of making the consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger;
(d) by Parent, if prior to the Effective Time, (i) there shall have occurred any effects, events, occurrences, developments, state of facts or changes that, individually or in the aggregate, would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or (ii) there shall have been a breach or inaccuracy of any representation, warranty, covenant or agreement on the part of the Company contained in this Agreement, which breach or inaccuracy (A) would give rise to the failure of a condition set forth in Section 7.02(a) or Section 7.02(b) and (B) is incapable of being cured or has not been cured prior to the earlier of the Outside Date or the date that is 30 days following written notice thereof; provided, however, that neither Parent nor Merger Sub is then in material breach of any representation, warranty or covenant under this Agreement;
(e) by either Parent or the Company, if the Company Stockholder Meeting (including any adjournment or postponement thereof) has concluded, the Company Stockholders have voted and the Company Stockholder Approval was not obtained; provided, however, that the right to terminate this Agreement pursuant to this Section 8.01(e) shall not be available to the Company if it has not materially complied with its obligations under Section 6.01 and Section 6.04;
(f) by Parent, if (i) an Adverse Recommendation Change shall have occurred, (ii) the Company Board or any committee thereof (A) shall not have rejected any Acquisition Proposal within seven days of the making public thereof (including, for these purposes, by the Optionee giving notice of termination taking no position with respect to the Optionoracceptance by the Company Stockholders of a tender offer or exchange offer, which shall constitute a failure to reject such Acquisition Proposal) or (B) shall have failed, pursuant to Rule 14e-2 promulgated under the Exchange Act or otherwise, to publicly reconfirm the Company Board Recommendation within four days after receipt of a written request from Parent that it do so if such request is made following the making by any Person of an Acquisition Proposal or (iii) the Company shall have violated or breached in any material respect any of its obligations under Section 6.06;
(g) by the Company, if prior to the Effective Time, (i) there shall have occurred any effects, events, occurrences, developments, state of facts or changes that, individually or in the aggregate, would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect or (ii) there shall have been a breach or inaccuracy of any representation, warranty, covenant or agreement on the part of Parent contained in this Agreement, which breach or inaccuracy (A) would give rise to the failure of a condition set forth in Section 7.03(a) or Section 7.03(b) and (B) is incapable of being cured or has not been cured prior to the earlier of the Outside Date or the date that is 30 days following written notice thereof; provided, however, that the Company is not then in material breach of any representation, warranty or covenant under this Agreement; or
(bh) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor Company prior to obtaining the commencement of Commercial Production (the “Commencement Date”Company Stockholder Approval in accordance with Section 6.06(d), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Granite Construction Inc), Merger Agreement (Layne Christensen Co)
Termination. 8.01 This 11.1 Notwithstanding anything contained in this Agreement shall terminateto the contrary, the Parties may terminate this Agreement as follows:
(a) at any time prior to Closing, the Purchaser and the Seller may terminate this Agreement by mutual written agreement as of the date provided for therein;
(b) either the Purchaser or the Seller may terminate this Agreement upon written notice to the other if Closing shall not have occurred on or before the Termination Date; provided that the right to terminate this Agreement pursuant to this Clause 11.1(b) shall not be available:
(i) to the Purchaser, if all remaining unfulfilled or unwaived conditions precedent set forth in Clause 4.1 are fulfilled or waived prior to the First Option Deadline, by the Optionee giving notice of termination to the OptionorTermination Date; or
(bii) subject to paragraph 8.02the Seller, if all remaining unfulfilled or unwaived conditions precedent set forth in Clause 4.2 are fulfilled or waived prior to the Termination Date; or
(iii) to either the Purchaser or the Seller, if its or its Affiliates' failure to fulfill any of its obligations under this Agreement has been the cause of or resulted in the event failure of Closing to occur on or before the First Option Termination Date;
(c) prior to Closing, the Seller may terminate this Agreement if the Purchaser shall breach this Agreement in any material respect and, if such breach is not exercised by capable of being cured, shall fail to cure such breach within thirty (30) days after written notice thereof, with effect as from the First Option Deadline date of delivery of such notice to the Purchaser; or
(d) prior to Closing, the Purchaser may terminate this Agreement if the Seller shall breach this Agreement in any material respect and, if such breach is capable of being cured, shall fail to cure such breach within thirty (30) days after written notice thereof, with effect as from time the date of delivery of such notice to timethe Seller.
8.02 Notwithstanding 11.2 If this Agreement is terminated pursuant to Clause 11.1, all rights and obligations of the Parties hereunder shall terminate without any liability of one Party to the other provision Party, except that (a) nothing shall relieve either Party of any liability for any breach of this Agreement that occurred prior to the termination of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
and (b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereofthis Clause 11 and Clauses 8, 9, 10 (to the Optionorextent applicable), without 12 and 14 shall survive any further noticetermination of this Agreement. For the avoidance of doubt, may thereafter terminate notwithstanding any termination of this Agreement, the Confidentiality Agreement shall remain in full force and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose duration of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneeterm.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Share Purchase Agreement (NRL Acquisition Corp.), Share Purchase Agreement (Chaparral Resources Inc)
Termination. 8.01 This Agreement shall terminate:
(a) The LESSEE shall be responsible for abiding by the terms of this Agreement including all of the Fees due provided herein for the full term specified in this Agreement. The LESSEE may terminate this Agreement at any time the completion of the term specified in the LEASE SPECIFICATIONS listed in ATTACHMENT A. In such event, the LESSEE shall notify OLI in writing, no later than sixty (60) days prior to the First Option Deadlineexpiration of such term, by of its intention to forego renewal of the Optionee giving notice Agreement and shall return to OLI any security devices, hardware or software that enabled access to or usage of termination to the Optionor; orThe System under this Agreement.
(b) subject to paragraph 8.02, in In the event the First Option is not exercised by LESSEE wishes to terminate this Agreement prior to the First Option Deadline from time to time.
8.02 Notwithstanding any other provision end of the term of this Agreement, if at any time the LESSEE must inform OLI in writing of its wish to execute an early termination, and the LESSEE shall pay a sum equal to sixty percent (60%) of the total amount of Fees remaining to be paid during such term, plus one hundred percent (100%) of the savings, to date, for discounted prior payments where said amount was discounted due to the term of the First OptionAgreement (with the amount of such savings as determined by OLI). The LESSEE must provide OLI with not less than thirty (30) days’ notice of such early termination of this Agreement. In conjunction with such termination, the Optionee fails LESSEE returns to advance OLI any security devices, hardware or software that enabled access to the Optionor any cash payment or shares required usage of The System under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:.
(ac) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but Each party hereto shall have the right of access to terminate this Agreement upon written notice to the Property for three (3) months following termination for other party if the purpose of removing its buildingsother party materially breaches an obligation under this Agreement and, plant, equipment, machinery, tools, appliances and supplies after receiving written notice from the Property. All buildingsnon-breaching party identifying such material breach in reasonable detail, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three fails to cure such material breach within thirty (330) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; andsuch notice (or within fifteen (15) days’ notice in the event such breach is solely based upon the breaching party’s failure to pay any amounts due hereunder).
(bd) ensure Upon the termination of this Agreement, the Lease authorizing the LESSEE’s use of The System shall automatically terminate, and all rights and obligations of the parties under this Agreement and arising after the date of such termination shall cease; provided that the Optionor is provided license set forth in Section 8(c) shall remain in effect with copies respect to all use of all geotechnical informationThe System by the LESSEE’s and its Authorized Users prior to such termination. Notwithstanding the foregoing, includingthe following provisions shall survive the termination of this Agreement: Sections 3(b), without limiting3(c), plans7, assay maps8, diamond drill records10, diamond drill core 11, 12, 14, 16(d) and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor21.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Termination. 8.01 This Agreement (a) Subject to Clauses 5(e) and 5(f) below and without prejudice to Clause 6(b), either Party shall terminatebe entitled to terminate this Licence for material breach of contract by the other Party which is not remedied within 60 days of a written request to remedy the same.
(b) Licensor may terminate this Licence on 15 days' written notice if Licensee ceases:
(ai) at any time prior to provide for a period of 45 consecutive days (other than as a result of an event or circumstance beyond Licensee's reasonable control) services substantially equivalent to the First Option Deadline, by Services in the Optionee giving notice of termination to United Kingdom under the Optionor"Sky News" brand; or
(bii) subject to paragraph 8.02operate the "Sky News" channel in the United Kingdom (other than as a result of an event or circumstance beyond Licensee's reasonable control), (for the avoidance of doubt, nothing in this Sub-Clause 5(b) shall give Licensor a right to terminate this Licence if Licensee, in addition to providing the Services, provides any services in the United Kingdom which are not branded with any of the Trade Marks).
(c) Either Party shall only be entitled to terminate this Licence under Clause 5(a) or 5(b) where such Party has obtained the prior written consent of the Secretary of State for Digital, Culture, Media and Sport, such written consent not to be unreasonably withheld.
(d) If a Party receives a written request or notice pursuant to Clause 5(a) or 5(b) and either: (i) such Party disputes that it is in material breach of contract or that the other Party has a right to terminate; or (ii) where relevant, the Parties are in dispute as to whether or not such material breach of contract was remedied within the said 60 days (each a Termination Dispute), this Licence shall remain in full force and effect until such Termination Dispute has either been resolved by the agreement of the Parties or finally determined by the courts of England in favour of the Party seeking to terminate this Licence.
(e) In the event of any Termination Dispute arising, before commencing action in the First Option is not exercised courts of England to determine that Termination Dispute, such Termination Dispute shall, at the written request of either Party, be referred to mediation. Any reference to mediation shall be made in accordance with the procedures of the Centre for Alternative Dispute Resolution in London. The mediation will be conducted by a single mediator appointed by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term agreement of the First OptionParties or if the Parties cannot agree on the mediator within 21 days of the date of the request that the Termination Dispute be referred to mediation, or if the agreed person is unable or unwilling to act, the Optionee fails to advance to mediator shall be appointed by the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is Centre for Alternative Dispute Resolution in breach London on the application of any covenant, representation or warranty contained herein, either Party. If the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee Termination Dispute has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as been resolved through mediation within 10 days of the first Business Day immediately following day of the Commencement Datemediation, either Party may bring action in the courts of England to have to Termination Dispute resolved.
8.05 The Optionee (f) Where Licensor seeks to terminate this Licence pursuant to Clause 5(a) or 5(b) Licensor shall vacate bear the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion costs of the Optionor shall become mediation and the property reasonable costs of any action in the English courts to determine such Termination Dispute, including all reasonable out of pocket costs incurred by Licensee in connection with participating in such mediation or defending any such action in the English courts.
(g) Any sub-license of the Optionor free and clear rights granted under this Licence entered into pursuant to Clause 3(m) herein shall automatically terminate upon the termination of any claim or encumbrance by or through this Licence in accordance with the Optioneeterms of this Licence.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Licensing Agreement, License Agreement
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option DeadlineClosing Date, whether before or after approval by the Optionee giving notice shareholders of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised respective parties hereto contemplated by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars by mutual written consent of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andBoards of Directors of DRI and CNG;
(b) by DRI or CNG, by written notice to the Optionee other, if the Effective Time shall not have occurred on or before January 31, 2000; provided, however, that such date shall automatically be extended to July 31, 2000 if, on January 31, 2000: (i) the condition set forth in Section 8.1(f) has notnot been satisfied or waived; (ii) the other conditions to the consummation of the transactions contemplated hereby are then capable of being satisfied; and (iii) any approvals required by Section 8.1(f) that have not yet been obtained are being pursued with diligence; provided further, within twenty-that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the termination date;
(c) by DRI or CNG, by written notice to the other party, if the DRI Shareholders' Approval shall not have been obtained at a duly held DRI Special Meeting, including any adjournments thereof, or the CNG Shareholders' Approval shall not have been obtained at a duly held CNG Special Meeting, including any adjournments thereof;
(d) by DRI or CNG, if any state or federal law, order, rule or regulation is adopted or issued, that has the effect, as supported by the written, reasoned opinion of outside counsel for such party, of prohibiting the Merger or causing a DRI Material Adverse Effect or CNG Material Adverse Effect, or if any court of competent jurisdiction in the United States or any State shall have issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Merger or causing a DRI Material Adverse Effect or CNG Material Adverse Effect, and such order, judgment or decree shall have become final and nonappealable;
(e) by CNG, upon two (222) days following delivery days' prior notice to DRI, if, as a result of a tender offer by a party other than DRI or any of its affiliates or any written offer or proposal with respect to a merger, sale of a material portion of its assets or other business combination (each, a "Business Combination") by a party other than DRI or any of its affiliates, the Board of Directors of CNG determines in good faith that the fiduciary obligations of such notice directors under applicable law require that such tender offer or other written offer or proposal be accepted; provided, however, that (i) (A) the Board of defaultDirectors of CNG has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group proposing the Business Combination will have adequate sources of financing to consummate the Business Combination and that the Business Combination is more favorable to CNG's shareholders than the Merger and (B) the Board of Directors of CNG shall have been advised in a written, cured such default.
8.03 Should reasoned opinion by outside counsel that, notwithstanding a binding commitment to consummate an agreement of the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision nature of this Agreement entered into in the proper exercise of their applicable fiduciary duties, and notwithstanding all concessions that may be offered by DRI in negotiations entered into pursuant to clause (ii) below, such fiduciary duties would also require the directors to reconsider such commitment as a result of such tender offer or such written offer or proposal and (ii) prior to any such termination, CNG shall, and shall cause its respective financial and legal advisors to, negotiate with DRI to make such adjustments in the terms and conditions of this Agreement as would enable CNG to proceed with the transactions contemplated herein; provided further, that DRI and CNG acknowledge and affirm that, notwithstanding anything in this Section 9.1(e) to the contrary, DRI and CNG intend this Agreement to be an exclusive agreement and, accordingly, nothing in this Agreement is intended to constitute a solicitation of an offer or proposal for a Business Combination, it being acknowledged and agreed that any such offer or proposal would interfere with the strategic advantages and benefits that DRI and CNG expect to derive from the Merger and other transactions contemplated hereby;
(f) by DRI, upon two (2) days' prior notice to CNG, if, as a result of a tender offer by a party other than CNG or any of its affiliates or any written offer or proposal with respect to a Business Combination by a party other than CNG or any of its affiliates, the Board of Directors of DRI determines in good faith that the Optionee fiduciary obligations of such directors under applicable law require that such tender offer or other written offer or proposal be accepted; provided, however, that (i) (A) the Board of Directors of DRI has exercised reasonably concluded in good faith (after consultation with its financial advisors) that the First Optionperson or group proposing the Business Combination will have adequate sources of financing to consummate the Business Combination and that the Business Combination is more favorable to DRI's shareholders than the Merger and (B) the Board of Directors of DRI shall have been advised in a written, reasoned opinion by outside counsel that, notwithstanding a binding commitment to consummate an agreement of the nature of this Agreement entered into in the proper exercise of their applicable fiduciary duties, and notwithstanding all concessions that may be offered by CNG in negotiations entered into pursuant to clause (ii) below, such fiduciary duties would also require the directors to reconsider such commitment as a result of such tender offer or such written offer or proposal and (ii) prior to any such termination, DRI shall, and shall cause its respective financial and legal advisors to, negotiate with CNG to make such adjustments in the terms and conditions of this Agreement as would enable DRI to proceed with the transactions contemplated herein; provided further, that DRI and CNG acknowledge and affirm that, notwithstanding anything in this Section 9.1(f) to the contrary, DRI and CNG intend this Agreement to be an exclusive agreement and, accordingly, nothing in this Agreement is intended to constitute a solicitation of an offer or proposal for a Business Combination, it being acknowledged and agreed that any such offer or proposal would interfere with the strategic advantages and benefits that DRI and CNG expect to derive from the Merger and other transactions contemplated hereby;
(g) by CNG, by written notice to DRI, if Optionee has not advanced (i) there exist breaches of the Second Option Payment to the Optionor prior to the commencement representations and warranties of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect DRI made herein as of the first Business Day immediately following date hereof which breaches, individually or in the Commencement Dateaggregate, would or would be reasonably likely to result in a DRI Material Adverse Effect, and such breaches shall not have been remedied within twenty (20) days after receipt by DRI of notice in writing from CNG, specifying the nature of such breaches and requesting that they be remedied, (ii) DRI (and/or its appropriate subsidiaries) shall not have in all material respects performed and complied with its agreements and covenants contained in Section 6.2 (Dividends), Section 6.3 (Issuance of Securities) and Section 6.7 (Indebtedness) or shall have failed to perform and comply with, in all material respects, its other agreements and covenants hereunder and such failure to perform or comply with shall not have been remedied within twenty (20) days after receipt by DRI of a notice in writing from CNG, specifying the nature of such failure and requesting that it be remedied; or (iii) the Board of Directors of DRI or any committee thereof (A) shall withdraw or modify in any manner adverse to CNG its approval or recommendation of this Agreement or the Merger, (B) shall fail to reaffirm such approval or recommendation upon CNG's request, (C) shall approve or recommend any acquisition of DRI or a material portion of DRI's assets or any tender offer for shares of capital stock of DRI, in each case, by a party other than CNG or any of its affiliates or (D) shall resolve to take any of the actions specified in clause (A), (B) or (C).
8.05 The Optionee (h) by DRI, by written notice to CNG, if (i) there exist breaches of the representations and warranties of CNG made herein as of the date hereof which breaches, individually or in the aggregate, would or would be reasonably likely to result in a CNG Material Adverse Effect, and such breaches shall vacate not have been remedied within twenty (20) days after receipt by CNG of notice in writing from DRI, specifying the Property within a reasonable time after terminationnature of such breaches and requesting that they be remedied, but (ii) CNG (and/or its appropriate subsidiaries) shall not have in all material respects performed and complied with its agreements and covenants contained in Section 6.2 (Dividends), Section 6.3 (Issuance of Securities) and Section 6.7 (Indebtedness) or shall have failed to perform and comply with, in all material respects, its other agreements and covenants hereunder and such failure to perform or comply with shall not have been remedied within twenty (20) days after receipt by CNG of a notice in writing from DRI, specifying the right nature of access such failure and requesting that it be remedied; or (iii) the Board of Directors of CNG or any committee thereof (A) shall withdraw or modify in any manner adverse to DRI its approval or recommendation of this Agreement or the Property Merger, (B) shall fail to reaffirm such approval or recommendation upon DRI's request, (C) shall approve or recommend any acquisition of CNG or a material portion of CNG's assets or any tender offer for three shares of capital stock of CNG, in each case, by a party other than DRI or any of its affiliates or (3D) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion shall resolve to take any of the Optionor shall become the property of the Optionor free and clear of any claim actions specified in clause (A), (B) or encumbrance by or through the Optionee(C).
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Consolidated Natural Gas Co), Merger Agreement (Dominion Resources Inc /Va/)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated as to all parties at any time prior to the First Option Deadline, Closing:
(a) by the Optionee giving notice mutual written consent of termination to the OptionorDynegy and Purchaser; or
(b) subject by either Dynegy or Purchaser, by written notice to paragraph 8.02the other party, if the Closing shall not have occurred on or before December 31, 2004 (the "Termination Date"); provided, however, that the right to terminate this Agreement under this Section 10.1 shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the principal cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date; or
(c) by Dynegy, by written notice to Purchaser, if there shall have been one or more breaches of any representation or warranty, or any covenant or agreement of Purchaser hereunder, which breach or breaches individually or in the event aggregate would reasonably be expected to prevent, materially delay or materially impair Purchaser's or its Affiliates' ability to consummate the First Option is not exercised transactions contemplated by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and such breach shall not have been remedied within 30 days after receipt by Purchaser of notice in writing from Dynegy specifying the provisions nature of paragraph 8.06 hereof such breach and requesting that it be remedied or Dynegy shall then apply.not have received adequate assurance of a cure of such breach within such 30-day period; or
8.04 Notwithstanding (d) by Purchaser, by written notice to Dynegy, if there shall have been one or more breaches of any representation or warranty, or any covenant or agreement of Dynegy or Seller hereunder, which breach or breaches individually or in the aggregate would result in a Material Adverse Effect or reasonably be expected to prevent, materially delay or materially impair Dynegy's or Seller's ability to consummate the transactions contemplated by this Agreement, and such breach shall not have been remedied within 30 days after receipt by Dynegy of notice in writing from Purchaser, specifying the nature of such breach and requesting that it be remedied or Purchaser shall not have received adequate assurance of a cure of such breach within such 30-day period; or
(e) by either Dynegy or Purchaser in the event that any Governmental Authority shall have issued an order, decree or ruling or taken any other provision of action restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and provided that the Optionee has exercised the First Optionsuch order, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”)decree, the Second Option shall automatically lapse and be ruling or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but other action shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances become final and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneenon-appealable.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ameren Corp), Stock Purchase Agreement (Union Electric Co)
Termination. 8.01 This Agreement shall terminatemay be terminated prior to the Acceptance Time, as follows:
(a) at any time prior to the First Option Deadline, by mutual written consent duly authorized by the Optionee giving notice Boards of termination to the Optionor; orDirectors of Nikola and Romeo;
(b) subject by either Nikola or Romeo if the Acceptance Time shall not have occurred by January 30, 2023 (the “End Date”); provided, however, that the right to paragraph 8.02terminate this Agreement under this Section 8.1(b) shall not be available to Romeo, in on the event one hand, or to Nikola and Purchaser, on the First Option is not exercised by other hand, if such Party’s action or failure to act has been a principal cause of the First Option Deadline from time failure of the Acceptance Time to time.
8.02 Notwithstanding any other provision occur on or before the End Date and such action or failure to act constitutes a breach of this Agreement;
(c) by either Nikola or Romeo if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Nikola or Romeo if at any time during (i) the term Offer shall have terminated or expired in accordance with its terms solely as a result of the First Option, non-satisfaction of the Optionee fails to advance Minimum Condition (subject to the Optionor rights and obligations of Nikola or Purchaser to extend the Offer pursuant to Section 1.1(e)(ii)); provided, however, that the right to terminate this Agreement under this Section 8.1(d) shall not be available to (x) Nikola and Purchaser if Nikola or Purchaser shall have failed to comply in any cash payment material respect with its respective obligations under Section 1.1 or shares required (y) Romeo if Romeo shall have failed to comply in any material respect with its obligations under sub-paragraph 4.02(aSection 1.2 or Section 5.4;
(e) hereofby Nikola if a Romeo Triggering Event shall have occurred; provided, or is in that Nikola’s right to terminate this Agreement pursuant to this Section 8.1(e) shall expire at 5:00 p.m. (Eastern time) on the tenth (10th) Business Day following the date on which Romeo has provided written notification to Nikola of the occurrence of a Romeo Triggering Event; provided further that Nikola shall have the right to terminate pursuant to this Section 8.1(e) for each Romeo Triggering Event that may occur;
(f) by Romeo, upon a breach of any covenantrepresentation, warranty, covenant or agreement on the part of Nikola or Purchaser set forth in this Agreement, or if any representation or warranty contained hereinof Nikola or Purchaser shall have become inaccurate, the Optionor may terminate this Agreement, but only if:
in either case such that (i) (a) it the representations and warranties of Nikola and Purchaser in Section 4.2 (Capitalization) shall have first given not be true and correct, subject only to the Optionee a notice of default containing particulars de minimis exceptions, at and as of the payment date of this Agreement or at and as of the Closing as if made at and as of the Closing, except for those representations and warranties which address matters only as of a particular date (which representations were not advanced or shares not issued, or the covenant, representation or warranty breachedso true and correct as of such particular date); and
(b) the Optionee has notrepresentations and warranties of Nikola and Purchaser in Sections 4.1 (Organization; Authority; Enforceability), within twenty4.3 (Non-two Contravention; Governmental Consents), 4.6 (22SEC Filings), 4.9 (Shares of Common Stock) days following delivery and 4.10 (No Vote of Nikola Stockholders) are not true and correct in all material respects as of the date of this Agreement or are not true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, except for those representations and warranties which address matters only as of a particular date (which representations were not so true and correct as of such notice particular date); and (c) any other representations and warranties of defaultNikola and Purchaser in Section 4 are not true and correct as of the date of this Agreement or are not true and correct on and as of the Closing Date with the same force and effect as if made on the Closing Date except (with respect solely to this clause (c)) (x) in each case, cured or in the aggregate, where the failure to be true and correct would not have an Nikola Material Adverse Effect (provided that all “Nikola Material Adverse Effect” qualifications and other materiality qualifications limiting the scope of the representations and warranties of Nikola and Purchaser in Section 4 will be disregarded), or (y) for those representations and warranties which address matters only as of a particular date (which representations were not so true and correct, subject to the qualifications as set forth in the preceding clause (i), as of such default.
8.03 Should particular date) or (ii) any of the Optionee fail covenants and obligations in this Agreement that either Nikola or Purchaser is required to comply with or to perform at or prior to the provisions Closing shall not have been complied with or performed in all material respects; provided, that if such inaccuracy in Nikola’s or Purchaser’s representations and warranties or breach by Nikola or Purchaser is curable by Nikola or Purchaser, then this Agreement shall not terminate pursuant to this Section 8.1(f) as a result of sub-paragraph 8.02(bsuch particular breach or inaccuracy until the earlier of (I) hereofthe expiration of a thirty (30) day period commencing upon delivery of written notice to Nikola or Purchaser (as applicable) of such breach or inaccuracy and (II) the End Date; provided, however, that the Optionorright to terminate this Agreement under this Section 8.1(f) shall not be available to Romeo at any time that this Agreement is then terminable by Nikola pursuant to Section 8.1(g);
(g) by Nikola, without (A) upon a breach of any further noticerepresentation, may thereafter terminate warranty, covenant or agreement on the part of Romeo set forth in this Agreement, and the provisions or if any representation or warranty of paragraph 8.06 hereof Romeo shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided have become inaccurate, in either case such that the Optionee has exercised the First Option, if Optionee has conditions set forth in Section (E)(1) or (E)(2) of Schedule B would not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect satisfied as of the first Business Day immediately following time of such breach or as of the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but such representation or warranty shall have become inaccurate, provided, that if such inaccuracy in Romeo’s representations and warranties or breach by Romeo is curable by Romeo then this Agreement shall not terminate pursuant to this Section 8.1(g) as a result of such particular breach or inaccuracy until the earlier of (i) the expiration of a thirty (30) day period commencing upon delivery of written notice to Romeo of such breach or inaccuracy and (ii) the End Date or (B) upon five Business Days’ written notice to Romeo, if Romeo or any of its Subsidiaries shall have filed or instituted a bankruptcy, reorganization, liquidation, receivership or insolvency proceeding, or made an assignment for the benefit of its creditors; provided, however, that in the case of any involuntary bankruptcy proceeding, if Romeo or any of its Subsidiaries consent to the involuntary bankruptcy or such proceeding is not dismissed within sixty (60) days after the filing thereof; provided, however, that the right to terminate this Agreement under this Section 8.1(g) shall not be available to Nikola at any time that this Agreement is then terminable by Romeo pursuant to Section 8.1(f). The Party desiring to terminate this Agreement pursuant to this Section 8.1 (other than pursuant to Section 8.1(a)) shall give a notice of access such termination to the Property for three (3) months following other Party specifying the provisions hereof pursuant to which such termination for is made and the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneebasis therefor described in reasonable detail.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Nikola Corp), Merger Agreement (Romeo Power, Inc.)
Termination. 8.01 This Agreement shall terminatemay be terminated prior to the Closing:
(a) at any time prior to the First Option Deadline, by the Optionee giving mutual written consent of the Purchaser, Parent, the Company and the Members’ Representative;
(b) by either the Members’ Representative or the Company, acting alone, if:
(i) the Purchaser or Parent has or shall have breached any representation, warranty, covenant or agreement contained in this Agreement in any material respect such that such breach, individually or in the aggregate with all other material breaches, would be reasonably likely to have a material adverse effect on the ability of the Purchaser and Parent to consummate the transactions contemplated hereby, and fails to cure such breach or commence diligent efforts to cure (and not cease such efforts until such breach is cured) within 15 days after receipt of written notice from the Company or the Members’ Representative requesting such breach to be cured;
(ii) the transactions contemplated by this Agreement shall not have been consummated on or before January 18, 2008; provided, that the Members and the Company shall not be entitled to terminate this Agreement pursuant to this Section 10.1(b)(ii) if the failure of termination any Member or the Company to comply fully with their respective obligations under this Agreement, has prevented the Optionorconsummation of the transactions contemplated by this Agreement; or
(biii) subject an Applicable Law or Order that prohibits the Closing shall have been enacted, entered, enforced, promulgated, issued or deemed applicable to paragraph 8.02, in the event the First Option is not exercised transactions contemplated by this Agreement by any governmental entity.
(c) by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this AgreementPurchaser and Parent, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(ai) it the Company or any Member has or shall have first given breached any representation, warranty, covenant or agreement contained in this Agreement in any material respect such that such breach, individually or in the aggregate with all other material breaches, would be reasonably likely to have a Company Material Adverse Effect, and fails to cure such breach or commence diligent efforts to cure (and not cease such efforts until such breach is cured) within 15 days after receipt of written notice from the Purchaser or Parent requesting such breach to be cured;
(ii) the transactions contemplated by this Agreement shall not have been consummated on or before January 18, 2008; provided, that the Purchaser and Parent shall not be entitled to terminate this Agreement pursuant to this Section 10.1(c)(ii) if the Purchaser’s or Parent’s failure to comply fully with its obligations under this Agreement has prevented the consummation of the transactions contemplated by this Agreement; or
(iii) an Applicable Law or Order that prohibits the Closing shall have been enacted, entered, enforced, promulgated, issued or deemed applicable to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of transactions contemplated by this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateby any governmental entity.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Volcom Inc), Purchase and Sale Agreement (Volcom Inc)
Termination. 8.01 This Subscription Agreement shall terminate:
terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) at such date and time as the Merger Agreement is terminated in accordance with its terms without being consummated, (b) upon the mutual written agreement of each of the parties hereto and the Company to terminate this Subscription Agreement, (c) 30 days after the Outside Date (as defined in the Merger Agreement as in effect on the date hereof), if the Closing has not occurred by such date other than as a result of a breach of Investor’s obligations hereunder (d) if any time of the conditions to Closing set forth in Section 3 of this Subscription Agreement are (i) not satisfied or waived prior to the First Option DeadlineClosing (and if the failure to so satisfy such condition is capable of being cured prior to the Closing, such failure shall not have been cured by the Optionee giving earlier of (x) thirty calendar days following receipt of written notice from the party claiming such condition has not been satisfied or (y) the Outside Date) or (ii) not capable of being satisfied on the Closing and, in each case of (i) and (ii), as a result thereof, the transactions contemplated by this Subscription Agreement will not be and are not consummated at the Closing or (e) by written notice of termination the Investor to the Optionor; or
(b) subject to paragraph 8.02, CCNB1 in the event the First Option Merger Agreement is not exercised by amended, supplemented or otherwise modified on or after the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreementdate hereof in a manner that materially adversely affects the Investor (the termination events described in clauses (a)–(e) above, if at any time during the term of the First Optioncollectively, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached“Termination Events”); and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor nothing herein will relieve any party from liability for any willful breach hereof prior to the commencement time of Commercial Production (termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from any such willful breach. CCNB1 shall notify the “Commencement Date”)Investor in writing of the termination of the Merger Agreement promptly after the termination of such agreement. Upon the occurrence of any Termination Event, the Second Option this Subscription Agreement shall automatically lapse be void and be or of no further force or effect as of and any monies paid by the first Business Day immediately Investor to CCNB1 in connection herewith shall promptly (and in any event within one business day) following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access Termination Event be returned to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the OptioneeInvestor.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Subscription Agreement (CC Neuberger Principal Holdings I), Subscription Agreement (CC Neuberger Principal Holdings I)
Termination. 8.01 This Agreement shall terminate:
(a) at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02Unless Purchaser determines, in its sole and absolute judgment, that the event the First Option Property is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment suitable for Purchaser’s intended use or shares required under sub-paragraph 4.02(a) hereofpurpose, or is in breach satisfactory condition, then this Agreement shall terminate upon the expiration of the Inspection Period, in which case the ▇▇▇▇▇▇▇ Money will be returned to Purchaser, and neither party shall have any covenantfurther right or obligation under this Agreement except for those rights or obligations that expressly survive termination. If Purchaser determines that the Property is acceptable in its sole and absolute discretion, representation then Purchaser shall provide a notice to Seller on or warranty contained hereinbefore the expiration of the Inspection Period that it has approved the Property (the “Approval Notice”) and this Agreement shall remain in full force and effect. If this Agreement does not terminate and Purchaser delivers the Approval Notice, the Optionor may terminate this Agreement, but only if:
(a) it Inspection condition and any objections regarding the Inspection shall be deemed to have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreementbeen waived by Purchaser for all purposes, and the provisions ▇▇▇▇▇▇▇ Money shall become non-refundable subject to all of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any the other provision terms and conditions of this Agreement Agreement. The Inspection shall be conducted at Purchaser’s sole cost and provided that expense. For the Optionee has exercised the First Optionavoidance of doubt, if Optionee has not advanced Purchaser fails to provide Seller with the Second Option Payment to the Optionor Approval Notice prior to the commencement expiration of Commercial Production (the “Commencement Date”)Inspection Period, such failure shall be conclusively deemed to be full and complete disapproval of such matters and this Agreement shall terminate, the Second Option shall automatically lapse ▇▇▇▇▇▇▇ Money will be returned to Purchaser, and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but neither party shall have the any further right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If obligation under this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure except for those rights or obligations that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of expressly survive termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) This Agreement may be terminated at any time prior to the First Option DeadlineClosing:
(i) by mutual written consent of Buyer and Seller;
(ii) by Buyer or Seller if:
(A) the Closing does not occur on or before October 1, by 2016 (the Optionee giving notice “Outside Date”); provided that if on the Outside Date the condition to Closing set forth in Section 8.2(h) shall not have been satisfied and Buyer has complied with its obligations under Section 7.9, but all other conditions to Closing shall have been satisfied or waived (or shall be capable of termination being satisfied at the Closing), then the Outside Date shall be extended to October 15, 2016 and such date shall become the Optionor“Outside Date”; provided further the right to terminate this Agreement under this clause (ii)(A) shall not be available to any party whose breach of a representation, warranty, covenant or agreement under this Agreement has been the cause of or resulted in the failure of the Closing to occur on or before such date; provided, further, if the condition to Closing set forth in Section 8.2(h) has been automatically waived pursuant to its terms and the Closing is scheduled to occur on October 17, 2016 pursuant to Section 3.1, neither party may terminate this Agreement pursuant to this Section 9.1(a)(ii)(A) unless the Closing does not occur on October 17, 2016; or
(bB) subject to paragraph 8.02a Governmental Entity shall have issued an Order or taken any other action, in any case having the event effect of permanently restraining, enjoining or otherwise prohibiting the First Option is not exercised transactions contemplated by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment which Order or shares required under subother action is final and non-paragraph 4.02(aappealable;
(iii) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only by Buyer if:
(aA) it shall have first given any condition to the Optionee obligations of Buyer hereunder becomes incapable of fulfillment by the Outside Date other than as a notice result of default containing particulars a breach by Buyer of any covenant or agreement contained in this Agreement, and such condition is not waived by Buyer; or
(B) there has been a breach by Seller of any representation, warranty, covenant or agreement contained in this Agreement or the payment not advanced or shares not issuedSeller Disclosure Schedule, or the covenant, if any representation or warranty breachedof Seller shall have become untrue, in either case such that the conditions set forth in Sections 8.2(a) or 8.2(b) would not be satisfied; andprovided, however, that this Agreement may not be terminated pursuant to this Section 9.1(a)(iii) by the Buyer if the Buyer is then in material breach of its representations, warranties, covenants or agreements set forth in this Agreement; or
(iv) by Seller if:
(A) any condition to the obligations of Seller hereunder becomes incapable of fulfillment by the Outside Date other than as a result of a breach by Seller of any covenant or agreement contained in this Agreement, and such condition is not waived by Seller; or
(B) there has been a breach by Buyer of any representation, warranty, covenant or agreement contained in this Agreement, or if any representation or warranty of Buyer shall have become untrue, in either case such that the conditions set forth in Sections 8.3(a) or 8.3(b) would not be satisfied; provided, however, that this Agreement may not be terminated pursuant to this Section 9.1(a)(iv) by Seller if Seller is then in material breach of its representations, warranties, covenants or agreements set forth in this Agreement.
(b) the Optionee has notThe party desiring to terminate this Agreement pursuant to clause (ii), within twenty-two (22iii) days following delivery or (iv) shall give written notice of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment termination to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateother party hereto.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Alphatec Holdings, Inc.), Purchase and Sale Agreement (Globus Medical Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing as follows:
(a) it shall have first given to by the Optionee a notice mutual written consent of default containing particulars of the payment not advanced or shares not issuedSeller, or the covenant, representation or warranty breached; andBuyer and Parent;
(b) by Seller or Buyer:
(i) if the Optionee has notClosing shall not have occurred on or before December 31, within twenty-two 2002 (22the "TERMINATION DATE") days following delivery or such other date contemplated by Section 5.07 of this Agreement; PROVIDED, HOWEVER, that the right to terminate this Agreement under this Section 11.01(b)(i) shall be suspended as to any party whose breach, misrepresentation or failure to fulfill any material obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur prior to the Termination Date; or
(ii) if there shall be any Law that restrains or prohibits consummation of the transactions contemplated hereby or if a final, nonappealable Governmental Order is issued restraining or otherwise prohibiting consummation of the transactions contemplated hereby;
(c) by Seller upon a breach of any representation, warranty, covenant or agreement on the part of either Buyer or Parent set forth in this Agreement, or if any representation or warranty of either Buyer or Parent shall have become untrue, in either case such that the condition set forth in Section 10.02(a) would not be satisfied, unless such breach or untruth can be cured prior to Closing and after receipt of notice thereof Buyer or Parent, as the case may be, proceeds in good faith to cure such breach or untruth as promptly as practicable;
(d) (A) by Buyer upon a breach of defaultany representation, warranty, covenant or agreement (x) on the part of Seller set forth in this Agreement or (y) on the part of the Majority Stockholder or ▇▇▇▇▇▇ ▇▇▇▇▇ set forth in the Voting Agreement, or (B) if any representation or warranty of Seller, the Majority Stockholder or ▇▇▇▇▇▇ ▇▇▇▇▇ shall have become untrue, in each case such that the condition set forth in Section 10.03(a) would not be satisfied, unless such breach or untruth can be cured prior to Closing and after receipt of notice thereof Seller or the Majority Stockholder, as applicable, proceeds in good faith to cure such defaultbreach or untruth as promptly as practicable;
(e) by Buyer if Seller or the Majority Stockholder shall have breached any of its respective obligations under Sections 5.08 or 5.09 of this Agreement or Sections 1.01 and 1.02 of the Voting Agreement or if the Stockholders fail to approve this Agreement and the transactions contemplated hereby, whether by vote or written consent, as contemplated by Section 5.08 of this Agreement.
8.03 Should (f) by Buyer as set forth in Section 5.07(a).
(g) by Buyer upon the Optionee fail filing of an insolvency proceeding by Seller or Seller having taken any corporate action to authorize such action.
(h) by Buyer if, in accordance with the survey conducted pursuant to Section 2.12 of this Agreement, fewer than 95% of Colleges Installed on the date of this Agreement are Installed on the Closing Date. Notwithstanding the foregoing, no party may terminate this Agreement pursuant to clause (c) or (d) of this Section 11.01 if any representation or warranty of the party seeking to terminate is materially inaccurate or breached or such party has failed to comply with the provisions of sub-paragraph 8.02(b) hereofor satisfy, the Optionorin all material respects, without any further notice, may thereafter its covenants and agreements made hereunder. The party desiring to terminate this Agreement, and the provisions Agreement pursuant to this Section 11.01 (other than pursuant to Section 11.01(a)) shall give notice of paragraph 8.06 hereof shall then applysuch termination to each other party.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Stein Avy H), Asset Purchase Agreement (CTN Media Group Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Offer and/or Merger may be abandoned at any time prior to the First Option Deadline, Effective Time (notwithstanding receipt of the Company Stockholder Approval):
(a) by mutual written agreement of the Company (provided that such termination has been approved by the Optionee giving notice Special Committee) and Parent;
(b) by either the Company (provided that such termination has been approved by the Special Committee) or Parent, if:
(i) the Acceptance Date shall not have occurred on or before April 1, 2009 (the “End Date”); provided that the right to terminate this Agreement pursuant to this Section 10.01(b)(i) shall not be available to any party whose breach of termination any provision of this Agreement results in the failure of the Offer to be consummated by such time or
(ii) there is a Law or final non-appealable judgment, injunction, order or decree of any Governmental Authority with competent jurisdiction restraining, prohibiting or otherwise making illegal the Optionorconsummation of the Offer or Merger; or
(bc) subject to paragraph 8.02by Parent if, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance prior to the Optionor any cash payment Acceptance Date:
(i) the Special Committee or shares required under sub-paragraph 4.02(athe Company Board shall have made an Adverse Recommendation Change that remains in effect or
(ii) hereof, or is in a breach of any covenant, representation or warranty contained hereinset forth in Article 4 or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement shall have occurred that would cause the conditions set forth in clauses (b)(iv) or (v) of Annex I to exist and is incapable of being cured by the End Date; provided, the Optionor may however, Parent shall not be permitted to terminate this Agreement, but only if:
Agreement pursuant to this Section 10.01(c)(ii) if (aA) it any material covenant of Parent or Merger Subsidiary contained in this Agreement shall have first given to the Optionee a notice of default containing particulars of the payment been breached in any material respect and such breach shall not advanced have been cured or shares not issued, or the covenant, (B) any representation or warranty breached; and
of Parent or Merger Subsidiary contained in this Agreement (bdisregarding all materiality and Parent Material Adverse Effect qualifications contained therein) the Optionee has not, within twenty-two (22) days following delivery shall not be true and correct at and as of such time as if made at and as of such time, with such exceptions as would not reasonably be expected to have a Parent Material Adverse Effect. The party desiring to terminate this Agreement pursuant to this Section 10.01 (other than pursuant to Section 10.01(a)) shall give written notice of defaultsuch termination to the other party, cured such default.
8.03 Should which notice shall identify the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, specific section and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision subsection of this Agreement pursuant to which such termination is being effected and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as contain an explanation of the first Business Day immediately following the Commencement Datefactual basis for such termination in reasonable detail.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Roche Investments USA Inc.), Merger Agreement (Genentech Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifEffective Time:
(a) it shall have first given to by mutual consent of Parent and the Optionee Company in a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andwritten instrument;
(b) by either Parent or the Optionee Company if (i) any Governmental Entity required to grant a Requisite Regulatory Approval has notdenied approval of the Merger and such denial has become final and non-appealable or (ii) any Governmental Entity of competent jurisdiction shall have issued a final non-appealable order, injunction or decree permanently enjoining or otherwise prohibiting or making illegal the consummation of the Merger (unless the occurrence of the foregoing clauses (i) or (ii) shall be due to the failure of the party seeking to terminate this Agreement to perform or comply with the covenants and agreements of such party set forth herein);
(c) by either Parent or the Company if the Merger shall not have been consummated on or before March 17, 2020 (the “Initial Termination Date,” and, as it may be extended below, the “Termination Date”); provided that, if, on the Initial Termination Date, any of the Requisite Regulatory Approvals shall not have been obtained and all of the other conditions set forth in Article VII have been satisfied or waived (other than those conditions that by their nature can only be satisfied at the Closing), the Initial Termination Date may be extended by either Parent or the Company to June 17, 2020 (the “Extended Termination Date”) on written notice to the other party on or by the Initial Termination Date; provided further that, notwithstanding the foregoing, if the failure of the Closing to occur by the Initial Termination Date or the Extended Termination Date, as applicable, shall be due to the failure of the party seeking to terminate this Agreement or to extend the Termination Date, as applicable, to perform or observe the covenants and agreements of such party set forth herein, such party shall not have the right to seek to terminate this Agreement or to extend the Termination Date, as applicable;
(d) by either Parent or the Company (provided that the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein) if there shall have been a breach of any of the covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in Article III on the part of the Company, in the case of a termination by Parent, or in Article IV on the part of Parent or Merger Sub, in the case of a termination by the Company, which breach or failure to be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the date on which the Closing would otherwise have been required to occur pursuant to Section 1.2, the failure of a condition set forth in Section 7.2(a) or 7.2(b), in the case of a termination by Parent, or Section 7.3(a) or 7.3(b), in the case of a termination by the Company, and which (i) is not cured within twenty-two the earlier of (22A) the Termination Date and (B) sixty (60) days following delivery written notice to the Company, in the case of a termination by Parent, or Parent, in the case of a termination by the Company, or (ii) by its nature or timing cannot be cured;
(e) by Parent prior to such notice time as the Requisite Company Vote is obtained, if the Company Board shall have (i) failed to recommend in the Joint Statement that the stockholders of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate Company adopt this Agreement, (ii) effected a Change in Company Recommendation or (iii) submitted this Agreement to holders of Company Common Stock for adoption without a recommendation for adoption;
(f) by the Company prior to such time as the Requisite Parent Vote is obtained, if the Parent Board shall have (i) failed to recommend in the Joint Statement that the shareholders of Parent approve the Parent Share Issuance, (ii) effected a Change in Parent Recommendation, or (iii) submitted the Parent Share Issuance to holders of Parent Common Stock for approval without a recommendation for approval;
(g) by either Parent or the Company if the Requisite Company Vote shall not have been obtained by the time that the duly convened Company Meeting (including any adjournments or postponements thereof) shall have been concluded; or
(h) by either Parent or the Company if the Requisite Parent Vote shall not have been obtained by the time that the duly convened Parent Meeting (including any adjournments or postponements thereof) shall have been concluded. The party desiring to terminate this Agreement pursuant to clause (b), (c), (d), (e), (f), (g) or (h) of this Section 8.1 shall give written notice of such termination to the other party in accordance with Section 9.5, specifying the provision or provisions hereof pursuant to which such termination is effected and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after basis for such termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneedescribed in reasonable detail.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Worldpay, Inc.), Merger Agreement (Fidelity National Information Services, Inc.)
Termination. 8.01 This Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated and the transactions contemplated hereby may be abandoned prior to the Effective Time, whether before or after the Company Shareholder Approval (provided, that any action taken by a party pursuant to this Article VII shall terminate:be authorized by specific resolution of the board of directors of such entity):
(a) at any time prior to by mutual written consent of the First Option DeadlineBoards of Directors of Parent, by Merger Sub and the Optionee giving notice of termination to the OptionorCompany; or
(b) subject by any party hereto, if the Effective Time shall not have occurred on or before December 31, 2006 (the “Termination Date”); or
(c) by any party hereto, if a statute, rule, regulation or executive order shall have been enacted, entered or promulgated, or if a Governmental Entity shall have issued an order, decree, ruling or injunction, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or injunction shall have become final and non-appealable and the party seeking to paragraph 8.02terminate this Agreement pursuant to this Section 7.1(c) shall have used all reasonable best efforts to remove such injunction, order, decree or ruling; or
(d) by the Company, if either Parent or Merger Sub shall have breached or failed to perform in any material respect any of its respective representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or 6.2 and (ii) cannot be cured by the Termination Date; provided that the Company shall have given Parent and Merger Sub written notice, delivered at least thirty (30) days prior to such termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(d) and the basis for such termination; or
(e) by Parent and Merger Sub, if the Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would result in a failure of a condition set forth in Section 6.1 or 6.3 and (ii) cannot be cured by the Termination Date; provided that Parent and Merger Sub shall have given the Company written notice, delivered at least thirty (30) days prior to such termination, stating Parent and Merger Sub’s intention to terminate the Agreement pursuant to this Section 7.1(e) and the basis for such termination; or
(f) by Parent and Merger Sub or the Company, if, at the Company Shareholders’ Meeting (including any adjournment, continuation or postponement thereof), the Company Shareholder Approval shall not be obtained; except that the right to terminate this Agreement under this Section 7.1(f) shall not be available to the Company where the failure to obtain the Company Shareholder Approval shall be attributable to the action or failure to act of the Company; or
(g) by Parent and Merger Sub, if the Company Board shall have withdrawn or modified its approval or recommendation of the Merger or this Agreement (it being understood and agreed that any “stop-look-and-listen” communication by the Company Board to the shareholders of the Company pursuant to Rule 14d-9(f) of the Exchange Act in connection with the commencement of a tender offer or exchange offer shall not be deemed to constitute a withdrawal, modification or change of its approval or recommendation), approved or recommended to the Company’s shareholders a Company Superior Proposal (in compliance with Section 5.2(c)) or resolved to do any of the foregoing; or
(h) by the Company, if the Company Board concludes in good faith (after taking into account the advice of its legal and financial advisors) that a Company Acquisition Proposal constitutes a Company Superior Proposal; or
(i) by Parent and Merger Sub (at any time prior to this Agreement’s receipt of the Company Shareholder Approval) if a Company Triggering Event shall have occurred; or
(j) by Parent and Merger Sub if, since the date of this Agreement, there shall have occurred any Company Material Adverse Effect, or there shall have occurred any event or circumstance that, in combination with any other events or circumstances, would constitute a Company Material Adverse Effect.
(k) by Parent and Merger Sub, in the event the First Option is not exercised by the First Option Deadline from time that any Governmental Entity shall require any action that constitutes or could reasonably be expected to timeconstitute a Detriment.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Rent Way Inc), Merger Agreement (Rent a Center Inc De)
Termination. 8.01 This Notwithstanding anything herein to the contrary, this Agreement shall terminate:
(a) may be terminated and the Acquisition may be abandoned at any time prior to the First Option Deadline, Closing (notwithstanding any approval of this Agreement by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifParent Stockholders:
(a) it shall have first given to by the Optionee mutual consent of PESI and Parent in a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andwritten instrument;
(b) by either Parent or PESI upon written notice to the Optionee other, if:
(i) the Acquisition shall not have been consummated on or before the earlier of (A) August 30, 2011, or (B) five Business Days after the expiration of the 20-day waiting period after the mailing date of the Information Statement, or such later date, if any, as PESI and Parent agree upon in writing (as such date may be extended, the “Termination Date”); provided, however that the right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not be available to a party whose failure to fulfill any material obligation under this Agreement has notbeen the cause of, within twenty-two or resulted in, the failure of the Acquisition to have been consummated on or before such date; provided further, however, that if on the Termination Date the conditions to the consummation of the Acquisition set forth in either or both of Sections 7.1(c) and 7.1(e) shall not be fulfilled but all other conditions shall be fulfilled or shall be capable of being fulfilled, then the Termination Date shall be extended by 30 days, and such date shall become the Termination Date for the purposes of this Agreement;
(22ii) days following delivery any Governmental Entity shall have issued a Law or taken any other action, in each case permanently restraining, enjoining or otherwise prohibiting consummation of the Acquisition or making consummation of the Acquisition illegal and such notice Law or other action shall have become final and nonappealable; provided, however, that the right to terminate pursuant to this Section 7.1(b)(ii) shall not be available to any party whose failure to fulfill any material obligation under this Agreement has been the cause of default, cured or resulted in such default.action or who is then in material breach of Section 5.4 with respect to such action; or
8.03 Should (iii) the Optionee Parent Stockholders fail to comply with approve this Agreement because of the provisions failure to obtain the Parent Required Votes; provided, however, that Parent’s right to terminate pursuant to this Section 7.1(b)(iii) shall not be available to Parent if Parent’s failure to fulfill any material obligation under this Agreement has been the cause of sub-paragraph 8.02(bor resulted in such failure of the stockholders of Parent to adopt this Agreement through written consents obtained pursuant to Section 228 of the DGCL or Parent has not made the payments required to be made by Parent to PESI pursuant to Section 9.1(b) hereof;
(c) by Parent, the Optionorupon written notice to PESI, without if PESI shall have breached or failed to perform any further noticeof its representations, may thereafter terminate warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Sections 6.2(a) or 6.2(b) and (ii) is incapable of being cured by PESI prior to the provisions Termination Date or is not cured by PESI within 30 days following receipt of paragraph 8.06 hereof written notice from Parent of such breach or failure to perform; provided that Parent shall not have the right to terminate this Agreement pursuant to this clause (c) if Parent is then apply.in material breach or has materially failed to perform any of its representations, warranties or covenants in this Agreement;
8.04 Notwithstanding (d) by Parent, upon written notice to PESI, if, prior to obtaining the Parent Required Vote, Parent Board or a committee thereof has made a Parent Adverse Recommendation Change pursuant to Section 5.2 and Parent Board or any committee thereof has authorized Parent to enter into an Acquisition Agreement in respect of the related Superior Proposal; provided, however, that (i) Parent shall have previously paid or shall concurrently pay to PESI the Parent Termination Fee and reimbursement for Out-of-Pocket Expenses pursuant to Section 9.1(b) and (ii) Parent has not breached its covenants or other provision agreements contained in Section 5.2;
(e) by PESI, upon written notice to Parent, if Parent or the Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Sections 6.3(a) or 6.3(b), and (ii) is incapable of being cured by Parent prior to the Termination Date or is not cured by Parent within 30 days following receipt of written notice from PESI of such breach or failure to perform; provided that PESI shall have no right to terminate this Agreement pursuant to this clause (e) if PESI is then in material breach or has materially failed to perform any of its representations, warranties or covenants in this Agreement; or
(f) by PESI, upon written notice to Parent, (i) if a Parent Adverse Recommendation Change shall have occurred or Parent Board or any committee thereof shall have resolved to make a Parent Adverse Recommendation Change, (ii) if Parent shall have recommended, adopted or approved, or proposed publicly to recommend, adopt or approve any Acquisition Proposal or Acquisition Agreement relating thereto, (iii) if Parent shall have failed to reaffirm the recommendation of Parent Board that Parent stockholders vote in favor of the adoption of this Agreement and provided within three Business Days following receipt from PESI of a written request for such reaffirmation or (iv) within 10 Business Days after a tender or exchange offer relating to securities of Parent has first been published or announced, Parent shall not have sent or given to Parent stockholders pursuant to Rule 14e-2 promulgated under the Exchange Act a statement disclosing that the Optionee has exercised the First OptionParent Board recommends rejection of such tender or exchange offer.
(g) by PESI, upon written notice to Parent, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If PESI terminates this Agreement terminates prior pursuant to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorSection 5.19.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Perma Fix Environmental Services Inc), Stock Purchase Agreement (Homeland Security Capital CORP)
Termination. 8.01 This 15.1 Notwithstanding the provisions of Clause 0, this Agreement shall terminatemay be terminated by either party by notice in writing in the following circumstances:
(a) at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement15.1.1 immediately, if at any time during a party, other than the term of the First Optionparty seeking to give notice, the Optionee fails to advance to the Optionor any cash payment shall be in persistent or shares required under sub-paragraph 4.02(a) hereof, or is in material breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision term of this Agreement and shall not have remedied such breach (if capable of being remedied) within 21 days of receiving notice of such breach and a request for such remedy;
15.1.2 immediately, if there is either insolvency in relation to a party (other than the party seeking to give notice) or a party (other than the party seeking to give notice) goes into liquidation (not being a members’ voluntary winding up) or administration or has a receiver appointed over any part of its undertaking or assets and provided that any arrangement, appointment or order in relation to such insolvency or liquidation, administration or receivership is not stayed, revoked, withdrawn or rescinded (as the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”case may be), within the Second Option shall automatically lapse and be or no further force or effect as period of the first Business Day 30 days, immediately following the Commencement Datefirst day of such insolvency or liquidation;
15.1.3 immediately, if a party, other than the party seeking to give notice, shall cease to have the appropriate authorisations, which permit it lawfully to perform its obligations envisaged by this Agreement at any time.
8.05 The Optionee 15.2 Computershare and the Company agree that if any of the following events occurs then either party may, at its option, elect to terminate this Agreement with effect from such date as the party electing to terminate the Agreement shall vacate specify in the Property within election:
15.2.1 NomineeCo ceasing to be a member of the CREST Service provided that Computershare shall use its best endeavours to maintain NomineeCo’s CREST member status;
15.2.2 any part of the arrangement for the promotion or provision of the Services being or becoming illegal or otherwise contrary to any legal or regulatory requirement binding on the Company or Computershare;
15.2.3 if, in Computershare’s reasonable time after terminationopinion, but shall have the right of access Services cannot continue to be provided (i) unless amendments are made to the Property for three terms on which such services are provided which amendments are not reasonably acceptable to Computershare, or (3ii) months following termination for without exposing Computershare to the purpose risk of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances proceedings being brought against it by any governmental or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneeregulatory authority.
8.06 If 15.3 The Client may terminate this Agreement agreement by notice in writing if the Client terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made its CDI programme in respect of all Work relation to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain GET SA Shares and the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the OptionorWarrants.
Appears in 2 contracts
Sources: Cdi Nominee Services Agreement (Groupe Eurotunnel SA), Cdi Nominee Services Agreement (Groupe Eurotunnel SA)
Termination. 8.01 This Agreement shall terminate:
(a) and the Mergers contemplated hereby may be terminated at any time prior to the First Option DeadlineClosing, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision whether before or after approval of this AgreementAgreement and the Mergers, if at any time during the term of the First Optionas follows, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is and in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifno other manner:
(a) it shall have first given to the Optionee a notice By mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andQuadraMed and RHP;
(b) By QuadraMed or RHP if any of the Optionee conditions set forth in Article VII shall not have been satisfied as of the date of the Closing;
(c) By QuadraMed if any of the conditions set forth in Article X shall have not been satisfied as of the date of the Closing;
(d) By RHP if any of the conditions set forth in Article IX shall have not been satisfied as of the date of the Closing;
(e) By either QuadraMed or RHP if the Closing shall have not been consummated on or before December 31, 1997; provided, however, with respect to (b)-(e) that the terminating party has notcomplied with or performed or tendered performance of all covenants and agreements, within twenty-two (22) days following delivery and satisfied all conditions contained herein which are to be complied with, performed or satisfied by such party immediately prior to or at the Closing; provided, further, that a party shall promptly notify the other parties hereto in writing if it becomes aware of circumstances which would cause such notice of default, cured such default.
8.03 Should the Optionee fail other party to breach or be unable to comply with or perform the conditions set forth in Article VII, VIII or IX as is appropriate;
(f) By QuadraMed if (i) the Advisory Committee of RHP or any committee thereof shall have withdrawn or modified in a manner adverse to QuadraMed, Sub A or Sub B its approval or recommendation of this Agreement, the Mergers or any other transaction contemplated by this Agreement; and either (A) the Advisory Committee of RHP or any committee thereof shall have recommended to the partners of RHP acceptance of a Third Party Acquisition or (B) RHP shall have entered into any definitive agreement with respect to a Third Party Acquisition; or (ii) RHP shall have breached in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement which breach cannot be or has not been cured 20 days after the giving of written notice to RHP;
(g) By RHP if (i) the Advisory Committee of RHP shall have withdrawn or modified in a manner adverse to QuadraMed, Sub A or Sub B its approval or recommendation of this Agreement or the Mergers in order to approve the execution by RHP of a definitive agreement providing for a Third Party Acquisition contemplated by a Superior Proposal, provided that RHP shall have compiled with the provisions of sub-paragraph 8.02(bSection 4.9 and thereafter shall comply with Section 11.3 below; or (ii) hereofQuadraMed, Sub A or Sub B shall have breached in any material respect any of their respective representations, warranties, covenants or other agreements contained in this Agreement which beach cannot be or has not been cured 20 days after the giving of written notice to RHP, Sub A or Sub B, as applicable;
(h) By QuadraMed, if the Fair Market Value shall be less than $18.50 per share unless RHP agrees that, in such event, the Optionor, without any further notice, may thereafter terminate this Agreement, and Fair Market Value shall be $18.50 per share for purposes of the provisions of paragraph 8.06 hereof shall then apply.Mergers; or
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option(i) By RHP, if Optionee has not advanced the Second Option Payment to Fair Market Value exceeds $32.00 per share at the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as Effective Time of the first Business Day immediately following the Commencement DateMergers.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Acquisition Agreement (Quadramed Corp), Acquisition Agreement (Resource Health Partners Lp)
Termination. 8.01 This Anything contained in this Agreement shall terminate:
(a) to the contrary notwithstanding, this Agreement may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date:
(a) it shall have first given to by the Optionee a notice mutual written consent of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andBuyer and Seller;
(b) the Optionee has notby either Buyer or Seller if:
(i) a Governmental Body shall have issued an order, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding decree or ruling or taken any other provision of action (which order, decree or ruling the parties hereto shall use their reasonable efforts to lift), in each case permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and nonappealable; or
(ii) the Closing shall not have occurred on or before September 30, 2007 (or such later date as may be mutually agreed to by Buyer and Seller); provided that the Optionee right to terminate this Agreement pursuant to this Section 12.1(b)(ii) shall not be available to any party that has exercised the First Option, if Optionee has not advanced the Second Option Payment breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as failure of the first Business Day immediately following Closing to occur;
(c) by Buyer in the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear event of any claim material breach by Seller of any of Seller’s agreements, covenants, representations or encumbrance by or through warranties contained herein and the Optionee.
8.06 If this Agreement terminates prior failure of Seller to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:cure such breach within twenty (20) days after receipt of notice from Buyer requesting such breach to be cured;
(ad) ensure that all filings for assessment credit have been made by Seller in respect the event of all Work any material breach by Buyer of any of Buyer’s agreements, covenants, representations or warranties contained herein and the failure of Buyer to cure such breach within twenty (20) days after receipt of notice from Seller requesting such breach to be cured;
(e) by Buyer upon the maximum extent permittedoccurrence, or all payments the non-occurrence, of money any event that will cause any condition set forth in lieu thereof have been made Article IX not to maintain the Property in good standing for be satisfied at least 120 days from the date of terminationClosing; andor
(bf) ensure by Seller, upon the occurrence, or the non-occurrence, of any event that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information will cause any condition set forth in all formats including without limiting, electronic records pertaining Article X not to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionorbe satisfied at Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Gleacher & Company, Inc.), Asset Purchase Agreement (First Albany Companies Inc)
Termination. 8.01 This Agreement shall terminate:
(a) This Agreement may be terminated at any time prior to the First Option DeadlineClosing:
(i) by mutual written consent of Buyer and Seller;
(ii) by Buyer or Seller if:
(A) the Closing does not occur on or before March 31, 2010; provided that, if satisfaction (or waiver as provided herein) of the conditions set forth in Article VIII (other than the condition set forth in Section 8.2(g) and those conditions that by their nature will be satisfied at the Optionee giving notice of termination Closing) has occurred, such date shall be extended to the Optionordate six (6) months after the date of filing of the application required under FINRA Rule 1017 with respect to the transactions contemplated herein, provided that such application is pending at such time; provided further that the right to terminate this Agreement under this clause (ii)(A) shall not be available to any party whose breach of a representation, warranty, covenant or agreement under this Agreement has been the cause of or resulted in the failure of the Closing to occur on or before such date; or
(bB) subject to paragraph 8.02a Governmental Entity shall have issued an Order or taken any other action, in any case having the event effect of permanently restraining, enjoining or otherwise prohibiting the First Option is not exercised transactions contemplated by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment which Order or shares required under subother action is final and non-paragraph 4.02(aappealable;
(iii) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only by Buyer if:
(aA) it shall have first given any condition to the Optionee obligations of Buyer hereunder becomes incapable of fulfillment other than as a notice result of default containing particulars a breach by Buyer of any covenant or agreement contained in this Agreement, and such condition is not waived by Buyer; or
(B) there has been a breach by Parent or Seller of any representation, warranty, covenant or agreement contained in this Agreement or the payment not advanced or shares not issuedSeller Disclosure Schedule, or the covenant, if any representation or warranty breachedof Parent or Seller shall have become untrue, in either case such that the conditions set forth in Sections 8.2(a) or 8.2(b) would not be satisfied and, in either case, such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given to Seller by Buyer; or
(C) if PW elects to obtain capital pursuant to the Backstop Note in accordance with Section 7.9, Seller has failed to deliver to Buyer the amount set forth in the Backstop Note Notice pursuant to the Backstop Note; or
(iv) by Seller if:
(A) any condition to the obligations of Seller hereunder becomes incapable of fulfillment other than as a result of a breach by Seller of any covenant or agreement contained in this Agreement, and such condition is not waived by Seller; or
(B) there has been a breach by Buyer of any representation, warranty, covenant or agreement contained in this Agreement or the Buyer Disclosure Schedule, or if any representation or warranty of Buyer shall have become untrue, in either case such that the conditions set forth in Sections 8.3(a) or 8.3(b) would not be satisfied and, in either case, such breach is not curable, or, if curable, is not cured within 30 days after written notice of such breach is given to Buyer by Seller.
(b) the Optionee has notThe party desiring to terminate this Agreement pursuant to clause (ii), within twenty-two (22iii) days following delivery or (iv) shall give written notice of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment termination to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateother party hereto.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Penson Worldwide Inc), Asset Purchase Agreement (Broadridge Financial Solutions, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated, and the Transactions abandoned, without further obligation of any Party except as set forth herein, at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date:
(a) it shall have first given by mutual written consent of the Parties;
(b) by either Party (provided that such Party is not otherwise in material breach) if the other Party has materially breached a representation, warranty, covenant or agreement set forth herein, and the breaching Party fails to cure such breach within sixty (60) days of written notice thereof; provided, however, that if the breaching Party diligently attempts to cure such breach during the sixty (60) day time period but fails to do so, such period will be automatically extended for an additional thirty (30) days;
(c) by either Party upon written notice to the Optionee a notice of default containing particulars of other Party, upon the payment not advanced or shares not issuedother Party’s failing, or the covenantother Party having filed against it and remaining pending for more than forty-five (45) days, representation a petition under Title 11 of the United States Code or warranty breachedsimilar state law provision seeking protection from creditors or the appointment of a trustee, receiver or debtor in possession;
(d) by either Party upon written notice to the other Party if a court of competent jurisdiction or Governmental Entity shall have issued an order, decree or ruling permanently restraining, enjoining or otherwise prohibiting the Transactions, and such order, decree, ruling or other action shall have become final and non-appealable;
(e) by either Party upon written notice to the other Party if the Closing shall not have occurred on or before June 28, 2016, which is the Outside Date as defined in the Merger Agreement as of the date hereof, after giving effect to the extension thereof; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(e) shall not be available to any Party whose breach of, or failure to fulfill any material obligation under, this Agreement has been the primary cause of, or resulted in, the failure of the Transactions to be consummated on or before such date; and
(bf) the Optionee has not, within twenty-two (22) days following delivery of such by either Shentel or Sprint upon prior written notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to other Party if the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement DateMerger Agreement has been terminated.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Master Agreement (Shenandoah Telecommunications Co/Va/), Master Agreement (Shenandoah Telecommunications Co/Va/)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated, and the Merger and other transactions contemplated hereby may be abandoned, at any time prior to the First Option DeadlineEffective Time, by whether prior to or after EUA Shareholders' Approval (except as otherwise provided in Section 9.01(c) below):
(a) By mutual written agreement of the Optionee giving notice Board of termination to the Optionor; orDirectors of NEES and Board of Tru▇▇▇▇s of EUA, respectively;
(b) subject By EUA or NEES, by written noti▇▇ ▇o the other, if the Closing Date shall not have occurred on or before December 31, 1999 (the "Initial Termination Date"); provided, however, that the right to paragraph 8.02terminate the Agreement under this Section 9.01( b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date; and provided, further, that if on the Initial Termination Date the conditions to the Closing set forth in Section 8.01(d) shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, then the Initial Termination Date shall be extended for four (4) months beyond the Initial Termination Date (the "Extended Termination Date");
(c) By NEES, by written noti▇▇ ▇o EUA, if EUA Shareholders' Approval shall not have been obtained at a duly held meeting of such Shareholders, including any adjournments thereof;
(d) By EUA or NEES, if any applicab▇▇ ▇tate or federal law or applicable law of a foreign jurisdiction or any order, rule or regulation is adopted or issued that has the effect, as supported by the written opinion of outside counsel for such part y, of prohibiting the Merger or other transactions contemplated hereby, or if any court of competent jurisdiction or any Governmental Authority shall have issued a nonappealable final order, judgment or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger or other transactions contemplated hereby (provided that the right to terminate this Agreement under this Section 9.01(d) shall not be available to any party that has not defended such lawsuit or other legal proceeding (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed)).
(e) By EUA upon ten (10) days' prior notice to NEES if the Board of ▇▇▇▇tees of EUA determines in good faith, that termination of this Agreement is necessary for the Board of Trustees of EUA to act in a manner consistent with its fiduciary duties to Shareholders under applicable law by reason of an unsolicited Alternative Proposal meeting the requirements of clauses (A) and (B) of Section 7.08 having been made; provided that
(A) The Board of Trustees of EUA shall determine based on advice of outside counsel with respect to the Board of Trustees' fiduciary duties that notwithstanding a binding commitment to consummate an agreement of the nature of this Agreement enter ed into in the event proper exercise of its applicable fiduciary duties, and notwithstanding all concessions which may be offered by NEES in n▇▇▇▇iation entered into pursuant to clause (B) below, it is necessary pursuant to such fiduciary duties that the First Option trustees reconsider such commitment as a result of such Alternative Proposal, and
(B) prior to any such termination, EUA shall, and shall cause its respective financial and legal advisors to, negotiate with NEES to make such adj▇▇▇▇ents in the terms and conditions of this Agreement as would enable EUA to proceed with the Merge r or other transactions contemplated hereby on such adjusted terms; and provided further that EUA's ability to terminate this Agreement pursuant to this Section 9.01(e) is conditioned upon the concurrent payment by EUA to NEES of any amounts o▇▇▇ by it pursuant to Section 9.03(a);
(f) By EUA, by written notice to NEES, if (i) there sh▇▇▇ have been any material breach of any representation or warranty, or any material breach of any covenant or agreement, of NEES hereunder (other ▇▇▇n a breach described in clause (ii)), and such breach shall not exercised have been remedied within twenty (20) days after receipt by NEES of notice in wri▇▇▇▇ from EUA, specifying the First Option Deadline from nature of such breach and requesting that it be remedied; or (ii) NEES shall fail to de▇▇▇▇r or cause to be delivered the amount of cash to the Paying Agent required pursuant to Section 2.02(a) at a time when all conditions to timeNEES's obligation to ▇▇▇▇▇ have been satisfied or otherwise waived in writing by NEES.
8.02 Notwithstanding (▇) By NEES, by written noti▇▇ ▇o EUA, if (i) there shall have been any material breach of any representation or warranty, or any material breach of any covenant or agreement, of EUA hereunder, and such breach shall not have been remedied within twenty (20) days after receipt by EUA of notice in writing from NEES, specifying the ▇▇▇▇re of such breach and requesting that it be remedied; or (ii) the Board of Trustees of EUA (A) shall withdraw or modify in any manner adverse to NEES its approval of ▇▇▇ Merger and other provision transactions contemplated hereby or its recommendation to its shareholders regarding the approval of this Agreement, if at the Merger and other transactions contemplated hereby, (B) shall approve or recommend or take no position with respect to an Alternative Proposal or (C) shall resolve to take any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment actions specified in clause (A) or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such defaultB).
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Eastern Edison Co), Merger Agreement (Eastern Utilities Associates)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and ----------- the Merger and the other Transactions may be abandoned at any time prior to the First Option DeadlineEffective Time, notwithstanding any requisite approval and adoption of this Agreement and the Transactions by the Optionee giving notice stockholders of termination to the OptionorCompany:
(a) by mutual written consent of each of Parent, Purchaser and the Company duly authorized by the Boards of Directors of Parent, Purchaser and the Company; or
(b) subject by either Parent, Purchaser or the Company if (i) the Effective Time shall not have occurred on or before July 31, 2001; provided, however, that the right to paragraph 8.02terminate this Agreement under -------- ------- this Section 9.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur on or before such date or (ii) any Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling which has become final and nonappealable and has the effect of making consummation of the Offer or the Merger illegal or otherwise preventing or prohibiting consummation of the Offer or the Merger; or
(c) by Parent if (i) due to an occurrence or circumstance that would result in a failure to satisfy any condition set forth in Annex A hereto, Purchaser shall have (A) failed to commence the event Offer within 30 days following the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision date of this Agreement, if at (B) terminated the Offer without having accepted any time during Shares for payment thereunder or (C) failed to accept Shares for payment pursuant to the term Offer within 90 days following the commencement of the First OptionOffer (provided, however, that the Optionee fails -------- ------- applicable time period specified in (A) and (C) above shall be extended until July 31, 2001), unless such action or inaction under (A), (B) or (C) shall have been caused by or resulted from the failure of Parent or Purchaser to advance to the Optionor perform, in any cash payment material respect, any of their material covenants or shares required under sub-paragraph 4.02(a) hereof, or is agreements contained in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
or the material breach by Parent or Purchaser of any of their material representations or warranties contained in this Agreement or (aii) it prior to the purchase of Shares pursuant to the Offer, the Board or any committee thereof shall have first given withdrawn or modified in a manner adverse to the Optionee a notice Purchaser or Parent its approval or recommendation of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions Offer or the Merger, or shall have recommended or approved any Acquisition Proposal, or shall have resolved to do any of paragraph 8.06 hereof the foregoing; or
(d) by the Company, upon approval of the Board, if (i) Purchaser shall then apply.
8.04 Notwithstanding any other provision have (A) failed to commence the Offer within 30 days following the date of this Agreement and provided Agreement, (B) terminated the Offer without having accepted any Shares for payment thereunder or (C) failed to accept Shares for payment pursuant to the Offer within 90 days following the commencement of the Offer (provided, however, that the Optionee has exercised applicable time -------- ------- period specified in (A) and (C) above shall be extended until July 31, 2001), unless such action or inaction under (A), (B) or (C) shall have been caused by or resulted from the First Optionfailure of the Company to perform, if Optionee has not advanced in any material respect, any of its material covenants or agreements contained in this Agreement or the Second Option Payment to material breach by the Optionor Company of any of its material representations or warranties contained in this Agreement or (ii) prior to the commencement purchase of Commercial Production (Shares pursuant to the “Commencement Date”)Offer, the Second Option shall automatically lapse and be or no further force or effect as Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel in order to enter into a definitive agreement with respect to a Superior Proposal, upon five calendar days' prior written notice to Parent, setting forth in reasonable detail the identity of the first Business Day immediately following person making, and the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances final terms and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operatorconditions of, the Optionee Superior Proposal; provided, however, that any termination of this -------- ------- Agreement pursuant to this Section 9.01(d)(ii) shall forthwith:
(a) ensure that all filings for assessment credit have been not be effective until the Company has made in respect full payment of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is amounts provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionorunder Section 9.03.
Appears in 2 contracts
Sources: Merger Agreement (Siemens Aktiengesellschaft/Adr), Merger Agreement (Siemens Aktiengesellschaft/Adr)
Termination. 8.01 This Agreement shall terminate:
(a) may not be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date except:
(a) it By mutual written consent of Buyer and Seller;
(b) by either Seller or Buyer, if the Closing shall not have occurred on or before June 15, 2017 (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Transactions to be consummated on or before the Outside Date;
(c) by either Seller or Buyer if any Governmental Authority shall have first given to enacted, issued, promulgated, enforced or entered any Law or Order that is, in each case, then in effect and is final and non-appealable and has the Optionee a notice effect of default containing particulars making the Transactions illegal or otherwise preventing or prohibiting consummation of the payment Transactions; provided, however, that the right to terminate this Agreement under this Section 8.1(c) shall not advanced be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or shares not resulted in, any such Law or Order to have been enacted, issued, promulgated, enforced or entered;
(d) by Buyer (if Buyer is not in material breach of any of the covenantterms or conditions of this Agreement), if there has been a material breach by Seller of any terms or conditions of this Agreement, or if any representation or warranty breachedof Seller shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.2(a) or 7.2(b) (a “Terminating Seller Breach”); provided, that if such Terminating Seller Breach is reasonably curable by Seller, within 30 days after Seller has received written notice from Buyer of such Terminating Seller Breach, through the exercise of its commercially reasonable efforts and for as long as Seller continues to exercise such commercially reasonable efforts, Buyer may not terminate this Agreement under this Section 8.1(d) until the earlier of the expiration of such 30-day period and the Outside Date; and
(be) the Optionee by Seller (if Seller is not in material breach of any of its representations, warranties, covenants or agreements under this Agreement), if there has not, within twenty-two (22) days following delivery been a material breach by Buyer of such notice any of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions terms or conditions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, or if any representation or warranty of Buyer shall have become inaccurate, in either case that would result in a failure of a condition set forth in Section 7.3(a) or 7.3(b) (a “Terminating Buyer Breach”); provided, that if such Terminating Buyer Breach is reasonably curable by Buyer, within 30 days after Buyer has received written notice from Seller of such Terminating Buyer Breach, through the exercise of its commercially reasonable efforts and for as long as Buyer continues to exercise such commercially reasonable efforts, Seller may not terminate this Agreement under this Section 8.1(e) until the earlier of the expiration of such 30-day period and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Outside Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Intellectual Property Purchase Agreement (Enigma-Bulwark, LTD), Intellectual Property Purchase Agreement (Parallax Health Sciences, Inc.)
Termination. 8.01 This (a) Subject to Section 1(e), either party shall have the right to terminate this Agreement shall terminateupon delivery to the other party of advance written notice of such termination at least five (5) calendar days prior to the effective date of such termination (the effective date of termination, the “Termination Date”); provided, however, that the Termination Date may not be earlier than the date that is thirty (30) calendar days prior to the notice deadline under the Bylaws for the nomination of director candidates for election to the Board at the 2021 Annual Meeting (the “Terminable Date”); provided, further, that the Termination Date may not be in any time period between the notice deadline under the Bylaws for the nomination of director candidates for election to the Board with respect to any Annual Meeting and the conclusion of such Annual Meeting. Notwithstanding anything to the contrary in this Agreement:
(ai) at any time prior the obligations of the Investors pursuant to Sections 1, 2, 3, 4 and 5 shall terminate in the event that the Company materially breaches its obligations to the First Option DeadlineInvestors pursuant to Sections 1, by 4 or 5, or the Optionee giving representations and warranties in Section 9(b) and such breach (if capable of being cured) has not been cured within ten (10) calendar days following written notice of such breach from the Investors, or, if impossible to cure within ten (10) calendar days, the Company has not taken substantive action to correct within ten (10) calendar days following written notice of such breach from the Investors; provided, however, that any termination in respect of a breach of Section 4 shall require a determination of a court of competent jurisdiction that the Company materially breached Section 4; provided, further, that the obligations of the Investors pursuant to Section 5 shall terminate immediately in the event that the Company materially breaches its obligations to the OptionorInvestors under Section 5; and
(ii) the obligations of the Company to the Investors pursuant to Sections 1, 4 and 5 shall terminate in the event that (A) an Investor materially breaches its obligations in Sections 1, 2, 3, 4, 5 or 7 or the representations and warranties in Section 9(a) or (B) an Investor Designee materially breaches its obligations under this Agreement or the Company’s Charter, Bylaws or Company Policies that are applicable to all directors, and such breach (if capable of being cured) has not been cured within ten (10) calendar days following written notice of such breach, or, if impossible to cure within ten (10) calendar days, the Investors or such Investor Designee, as applicable, has not taken substantive action to correct within ten (10) calendar days following written notice of such breach from the Company; provided, however, that any termination in respect of a breach of Section 4 shall require a determination of a court of competent jurisdiction that an Investor materially breached Section 4; provided, further, that the obligations of the Company to the Investors pursuant to Section 5 shall terminate immediately in the event that an Investor materially breaches its obligations under Section 5.
(b) subject to paragraph 8.02If this Agreement is terminated in accordance with this Section 10, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this AgreementAgreement shall forthwith become null and void, but only if:
(a) it no termination shall have first given to the Optionee relieve a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without party from liability for any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision breach of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Datesuch termination.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Settlement Agreement (Potbelly Corp), Settlement Agreement (Vann A. AvedisianTrust U/a 8/29/85)
Termination. 8.01 This Notwithstanding anything contained in this Agreement shall terminate:
(a) to the contrary, this Agreement may be terminated at any time prior to the First Option DeadlineEffective Time, whether before or after the Company Stockholder Approval or Parent Stockholder Approval is obtained (except as otherwise expressly noted), as follows:
(a) by mutual written consent of each of Parent and the Optionee giving notice of termination to the OptionorCompany; or
(b) subject by either Parent or the Company, if:
(i) the Merger shall not have been consummated on or before April 20, 2022 (the “Termination Date”); provided, however, that if, on the Termination Date, the conditions to paragraph 8.02the Closing set forth in Section 6.1(d) or Section 6.1(e) (solely to the extent any such Restraint is in respect of an Antitrust Law) shall not have been fulfilled but all other conditions to the Closing set forth in Article VI have been waived or fulfilled (other than those conditions that by their terms cannot be satisfied prior to the Closing, but which conditions would be satisfied if the Closing occurred on such date), then the Termination Date shall automatically, without any action on the part of the parties hereto, be extended to October 20, 2022; provided, further, that the Termination Date may be further extended at the option of either Parent or the Company in the event circumstance described in Section 6.1(d) of the First Option is not exercised by Company Disclosure Letter to a date no later than June 20, 2023 and such date, as so extended, shall be the First Option Deadline from time to time.
8.02 Notwithstanding any other provision “Termination Date” for purposes of this Agreement; provided, further, that the right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not be available to any party if a material breach by such party of any of its obligations under this Agreement has been the cause of or resulted in the failure of the Closing to have occurred on or before the Termination Date;
(ii) (A) prior to the Effective Time, any Governmental Authority of competent jurisdiction shall have issued or entered any Order after the date of this Agreement or any Law shall have been enacted or promulgated after the date of this Agreement that has the effect of permanently restraining, enjoining or otherwise prohibiting the Merger or the other transactions contemplated by this Agreement, and in the case of such an Order, such Order shall have become final and non-appealable or (B) any Consent from a Governmental Authority required to be obtained pursuant to Section 6.1(d) shall have become incapable of being obtained prior to the Termination Date; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a party if a material breach by such party of its obligations under Section 5.4 has been the cause of or resulted in the issuance of such Order or the failure to obtain such Consent;
(iii) the Company Stockholder Approval shall not have been obtained upon a vote taken thereon at the Company Stockholders’ Meeting duly convened therefor or at any adjournment or postponement thereof; or
(iv) the Parent Stockholder Approval shall not have been obtained upon a vote taken thereon at the Parent Stockholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;
(c) by the Company if:
(i) Parent or Merger Sub shall have breached or failed to perform any of their respective representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in Section 6.3(a) or Section 6.3(b) and (B) is not capable of being cured by Parent or Merger Sub, as applicable, by the Termination Date or, if at any time during capable of being cured, shall not have been cured by Parent or Merger Sub on or before the term earlier of (x) the First OptionTermination Date and (y) the date that is thirty (30) calendar days following the Company’s delivery of written notice to Parent of such breach or failure to perform; provided, however, that the Optionee fails Company shall not have the right to advance terminate this Agreement pursuant to this Section 7.1(c)(i) if the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or Company is then in material breach of any covenantof its obligations under this Agreement so as to result in the failure of a condition set forth in Section 6.2(b);
(ii) the Parent Board shall have made a Parent Adverse Recommendation Change, representation Parent shall have failed to include in the Joint Proxy Statement the Parent Recommendation or warranty contained hereinParent shall have materially violated or breached any of its obligations under Section 5.7; or
(iii) prior to obtaining the Company Stockholder Approval, the Optionor may terminate Company Board shall have authorized the Company to enter into a definitive agreement with respect to a Company Superior Proposal and the Company enters into such definitive agreement concurrently with its termination of this Agreement, but only if (A) the Company is permitted to terminate this Agreement to accept a Company Superior Proposal pursuant to, and subject to its compliance with the applicable terms and conditions of, Section 5.6(d) and (B) as a condition to the effectiveness of such termination, the Company pays to Parent the Company Termination Fee prior to or simultaneously with such termination.
(d) by Parent if:
(ai) it the Company shall have first given breached or failed to the Optionee a notice perform any of default containing particulars of the payment not advanced its representations, warranties, covenants or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate other agreements set forth in this Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (B) is not capable of being cured by the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that Company by the Optionee has exercised the First OptionTermination Date or, if Optionee has capable of being cured, shall not advanced have been cured by the Second Option Payment Company on or before the earlier of (x) the Termination Date and (y) the date that is thirty (30) calendar days following Parent’s delivery of written notice to the Optionor prior Company of such breach or failure to the commencement of Commercial Production (the “Commencement Date”)perform; provided, the Second Option however, that Parent shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall not have the right to terminate this Agreement pursuant to this Section 7.1(d)(i) if Parent or Merger Sub is then in material breach of access any of its obligations under this Agreement so as to result in the failure of a condition set forth in Section 6.3(b);
(ii) the Company Board shall have made a Company Adverse Recommendation Change, the Company shall have failed to include in the Joint Proxy Statement the Company Recommendation or the Company shall have materially violated or breached any of its obligations under Section 5.6; or
(iii) prior to obtaining the Parent Stockholder Approval, the Parent Board shall have authorized Parent to enter into a definitive agreement with respect to a Parent Superior Proposal and Parent enters into such definitive agreement concurrently with its termination of this Agreement, but only if (A) Parent is permitted to terminate this Agreement to accept a Parent Superior Proposal pursuant to, and subject to its compliance with the applicable terms and conditions of, Section 5.7(d) and (B) as a condition to the Property for three (3) months following termination for effectiveness of such termination, Parent pays to the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from Company the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates Parent Termination Fee prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of simultaneously with such termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Middleby Corp), Merger Agreement (Welbilt, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated, at any time prior to the First Option DeadlineEffective Time, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised action taken or authorized by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term Special Committee of the First Optionterminating party or parties, the Optionee fails to advance to the Optionor whether before or after any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifRequired Stockholder Vote has been obtained:
(a) it shall have first given to the Optionee by mutual consent of Parent, Merger Sub and Company in a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andwritten instrument;
(b) by either Parent or Company, upon written notice to the Optionee other party, if a Governmental Entity of competent jurisdiction that must grant a Requisite Regulatory Approval has notdenied approval of the Merger and such denial has become final and non-appealable; or any Governmental Entity of competent jurisdiction shall have issued an order, within twentydecree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger, and such order, decree, ruling or other action has become final and non-two (22appealable; provided that the right to terminate this Agreement under this Section 7.1(b) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail shall not be available to any party whose failure to comply in any material respect with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding Section 5.3 or any other provision of this Agreement and has been the direct cause of, or resulted directly in, such action;
(c) by either Parent or Company, upon written notice to the other party, if the Merger shall not have been consummated on or before March 31, 2009 as extended to the third business day immediately following the last day on which the holders of Company Common Shares can require appraisal of their Company Common Shares pursuant to Bermuda law, if required; provided that the Optionee right to terminate this Agreement under this Section 7.1(c) shall not be available to any party whose failure to comply in any material respect with any provision of this Agreement has exercised been the First Optiondirect cause of, or resulted directly in, the failure of the Effective Time to occur on or before such date;
(d) by Parent or Company, upon written notice to the other party, if Optionee has not advanced the Second Option Payment other party, its Board of Directors or its Special Committee shall have (i) effected a Change in Company Recommendation or Change in Parent Recommendation, as the case may be (including by amending or supplementing the Joint Proxy Statement/Prospectus to effect a Change in Company Recommendation or Change in Parent Recommendation, as the Optionor prior to the commencement of Commercial Production (the “Commencement Date”case may be), (ii) failed to include the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as OperatorCompany Recommendation, the Optionee shall forthwith:
(aBye-Law Recommendation or Parent Recommendation, as the case may be, in the Joint Proxy Statement/Prospectus in accordance with Section 5.1(b) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permittedor 5.1(c), or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(biii) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work materially breached its obligations under Section 5.5(a)(iii) or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.Section 5.5(a)(iv);
Appears in 2 contracts
Sources: Merger Agreement (Tower Group, Inc.), Merger Agreement (Tower Group, Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Offer and the Merger may be abandoned at any time prior to the First Option Deadline, Effective Time whether before or after approval and adoption of this Agreement by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifCompany’s stockholders:
(a) it shall have first given to by mutual written consent of Parent, Acquisition and the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany;
(b) by Parent and Acquisition or the Optionee Company if (i) any court of competent jurisdiction or other Governmental Entity having jurisdiction over a party hereto shall have issued a final order, decree or ruling, or taken any other final action, permanently restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action is or shall have become nonappealable; (ii) the Offer shall have expired pursuant to its terms (and not have been extended by Parent in accordance with Section 1.1 hereof) without any Shares being purchased therein, provided, that no party may terminate this Agreement pursuant to this clause (ii) if such party’s failure to fulfill any of its obligations under this Agreement shall have been the reason that the Parent failed to purchase Shares in the Offer; or (iii) the purchase of Shares pursuant to the Offer has notnot been consummated by six (6) months from the date hereof (the “Final Date”); provided that no party may terminate this Agreement pursuant to this clause (iii) if such party’s failure to fulfill any of its obligations under this Agreement shall have been the reason that the purchase of Shares pursuant to the Offer or the Effective Time, as applicable, shall not have occurred on or before the Final Date;
(c) by the Company if (i) the representations and warranties of Parent contained in this Agreement that are qualified as to materiality or Material Adverse Effect shall not be true and correct, or the representations and warranties of Parent contained in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case, at and as of the date of such determination as if made on such date (other than those representations and warranties that address matters only as of a particular date which are true and correct as of such date); provided that the Company has not breached any of its obligations hereunder in any material respect which breach shall be continuing at such time; (ii) there shall have been a breach by Parent or Acquisition of any of its covenants or obligations to be performed under this Agreement having a Material Adverse Effect on Parent or materially and adversely affecting (or materially delaying) the consummation of the Offer or the Merger, and Parent or Acquisition, as the case may be, has not cured such breach (if capable of being cured) within twenty-twenty (20) business days after notice by the Company thereof; provided that the Company has not breached any of its obligations hereunder in any material respect which breach shall be continuing at such time; (iii) Parent shall have failed to commence the Offer on or prior to the date provided therefor in Section 1.1; provided, that the Company may not terminate this Agreement pursuant to this clause (iii) if Parent shall have failed to commence the Offer prior to such date due to the material breach of this Agreement by the Company; (iv) prior to Parent’s acceptance of Shares for exchange pursuant to the Offer, there shall have occurred any events or changes that, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect on Parent; (v) prior to Parent’s acceptance of Shares for exchange pursuant to the Offer, the Company receives a Superior Proposal and resolves to accept such Superior Proposal, but only if (A) the Company has acted in accordance with, and has otherwise complied with the terms of, Section 5.4 hereof, including the notice provisions therein and (B) the Company has paid all amounts due to Parent pursuant to Section 7.3; (vi) prior to Parent’s acceptance of Shares for exchange pursuant to the Offer, the average of the closing prices for Parent Common Stock on the NYSE (as reported in the New York City edition of the Wall Street Journal or, if not reported thereby, another nationally recognized source) for any ten (10) consecutive trading days ending not later than two (222) trading days prior to the Expiration Date (giving effect to any extension of the Offer, but not to any subsequent offer pursuant to Section 1.1) is less than $12.64; provided, that such termination right must be exercised within two (2) trading days following delivery the expiration of such notice ten (10) consecutive trading days; or (vii) Parent shall have consummated a merger or consolidation in which Parent is not the surviving corporation or Parent shall have consummated a sale of defaultall or substantially all of its assets.
(d) by Parent and Acquisition if (i) the representations and warranties of the Company contained in this Agreement that are qualified as to materiality or Material Adverse Effect shall not be true and correct, or the representations and warranties of the Company contained in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case, at and as of the date of such determination as if made on such date (other than those representations and warranties that address matters only as of a particular date which are true and correct as of such date); provided that neither Parent nor Acquisition has breached any of its obligations hereunder in any material respect which breach shall be continuing at such time; (ii) there shall have been a breach by the Company of any of its covenants or obligations to be performed under this Agreement having a Material Adverse Effect on the Company or materially and adversely affecting (or materially delaying) the consummation of the Offer or the Merger, and the Company has not cured such default.
8.03 Should breach (if capable of being cured) within twenty (20) business days after notice by Parent or Acquisition thereof; provided that neither Parent nor Acquisition has breached any of its obligations hereunder in any material respect which breach shall be continuing at such time; (iii) prior to Parent’s acceptance of Shares for exchange pursuant to the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereofOffer, the OptionorCompany Board shall have submitted or recommended to the Company’s stockholders a Superior Proposal; (iv) prior to Parent’s acceptance of Shares for exchange pursuant to the Offer, without any further notice, may thereafter terminate the Company Board shall have withdrawn or modified its approval or recommendation of this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision Offer or the Merger, fails to include its recommendation of this Agreement and provided that the Optionee has exercised Merger in the First OptionSchedule 14D-9 or fails to reconfirm its recommendation of this Agreement, the Offer and the Merger (including publicly, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property requested) within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination business days after a reasonable request by Parent for such reconfirmation; (v) prior to Parent’s acceptance of Shares for exchange pursuant to the purpose Offer, the Company Board fails to reject a proposal for a Third Party Acquisition or fails to recommend against a proposal for a Third Party Acquisition in any filing with the SEC made pursuant to Rule 14d-9 or 14e-2 under the Exchange Act within ten (10) days after such proposal is received by or on behalf of removing the Company or such transaction has been launched, as the case may be; (vi) prior to Parent’s acceptance of Shares for exchange pursuant to the Offer, the Company shall have breached its buildingsobligations under Section 5.4; (vii) prior to Parent’s acceptance of Shares for exchange pursuant to the Offer, plantCharter Oak Partners shall be in breach of its obligations pursuant to the Exchange Agreement executed by Charter Oak Partners and attached hereto as Exhibit E (the “Exchange Agreement“); (viii) due to a circumstance or occurrence that if occurring after the commencement of the Offer would make it impossible to satisfy one or more of the conditions set forth in Annex A hereto, equipmentParent shall have failed to commence the Offer on or prior to the date provided therefor in Section 1.1; provided, machinerythat Parent may not terminate this Agreement pursuant to this clause (viii) if Parent’s failure to fulfill any of its obligations under this Agreement shall have been the reason that Parent failed to commence the Offer; or (ix) prior to Parent’s acceptance of Shares for exchange pursuant to the Offer, toolsthere shall have occurred any events or changes that, appliances and supplies from individually or in the Property. All buildingsaggregate, plant, equipment, machinery, tools, appliances have had or supplies would reasonably be expected to have a Material Adverse Effect on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the OptioneeCompany.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (K2 Inc), Merger Agreement (K2 Inc)
Termination. 8.01 This Agreement shall terminatemay be terminated at any time prior to ----------- the Effective Time and, except as specifically provided below, whether before or after the Globespan Stockholders Meeting or the Virata Stockholders Meeting:
(a) at any time By mutual written consent of Globespan and Virata;
(b) By either Globespan or Virata, if the Effective Time shall not have occurred on or before March 1, 2002 (the "Termination Date"), however if ---------------- the conditions set forth in Section 7.1(c) have not been satisfied or waived prior to the First Option DeadlineTermination Date as set forth in the preceding clause, the Termination date shall be May 1, 2002; provided, however, that the right to -------- ------- terminate this Agreement under this Section 8.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement (including such party's obligations set forth in Section 6.4) has been the primary cause of, or resulted in, the failure of the Effective Time to occur on or before the Termination Date;
(c) By either Globespan or Virata, if any Governmental Entity (i) shall have issued an order, decree or ruling or taken any other action (which such party shall have used its reasonable commercial efforts to resist, resolve or lift, as applicable, in accordance with Section 6.4) permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and nonappealable or (ii) shall have failed to issue an order, decree or ruling or to take any other action which is necessary to fulfill the conditions set forth in Section 7.1(c), (d) or (e), as applicable, and such denial of a request to issue such order, decree, ruling or the failure to take such other action shall have become final and nonappealable (which order, decree, ruling or other action such party shall have used its reasonable commercial efforts to obtain, in accordance with Section 6.4); provided, however, that the right to terminate this Agreement -------- ------- under this Section 8.1(c) shall not be available to any party hereto whose failure to comply with Section 6.4 has been the primary cause of such action or inaction;
(d) By either Globespan or Virata, if either the Globespan Stockholder Approval or the Virata Stockholder Approval has not been obtained by reason of the failure to obtain the required vote at the Globespan Stockholders Meeting or the Virata Stockholders Meeting, as applicable;
(e) By Globespan, if Virata shall have (i) failed to make the Virata Recommendation, failed to reconfirm the Virata Recommendation within ten (10) Business Days following the reasonable request of Globespan to do so, or effected a Change in the Virata Recommendation, whether or not permitted by the Optionee giving notice terms hereof, (ii) willfully and materially breached its obligations under Section 6.5, or (iii) materially breached its obligations under this Agreement by reason of termination a failure to call the OptionorVirata Stockholders Meeting in accordance with Section 6.1(b) or a failure to prepare and mail to its stockholders the Joint Proxy Statement/Prospectus in accordance with Section 6.1(a);
(f) By Virata, if Globespan shall have (i) failed to make the Globespan Recommendation, failed to reconfirm the Globespan Recommendation within ten (10) Business Days following the reasonable request of Virata to do so, or effected a Change in the Globespan Recommendation, whether or not permitted by the terms hereof, (ii) willfully and materially breached its obligations under Section 6.5, or (iii) materially breached its obligations under this Agreement by reason of a failure to call the Globespan Stockholders Meeting in accordance with Section 6.1(c) or a failure to prepare and mail to its stockholders the Joint Proxy Statement/Prospectus in accordance with Section 6.1(a);
(g) By Globespan, if Virata shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in this Agreement, such that the conditions set forth in Section 7.2(a) or (b) are not capable of being satisfied on or before the Termination Date; or
(bh) subject By Virata, if Globespan shall have breached or failed to paragraph 8.02perform any of its representations, warranties, covenants or other agreements contained in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during such that the term of the First Option, the Optionee fails to advance to the Optionor any cash payment conditions set forth in Section 7.3(a) or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) are not capable of being satisfied on or before the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Termination Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Virata Corp), Agreement and Plan of Merger (Virata Corp)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option DeadlineEffective Time, whether before or after approval of the matters presented in connection with the Merger by the Optionee giving notice stockholders of termination to the Optionor; or
(b) subject to paragraph 8.02Target or Acquiror, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only iffollowing manner:
(a) it by mutual consent duly authorized by the boards of directors of Acquiror and Target;
(b) by either Acquiror or Target, if, (i) without fault of the terminating party, the Closing shall not have occurred on or before January 31, 2002 (provided, that a later date may be agreed upon in writing by the parties hereto, and provided further, that the right to terminate this Agreement under this clause (b)(i) shall not be available to any party whose action or willful failure to act has been a principal cause of or resulted in the failure of the Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement), (ii) any permanent injunction or other order of a court or other competent authority preventing the consummation of the Merger shall have first given become final and nonappealable or (iii) the board of directors of either Acquiror or Target, in the exercise of its fiduciary duties, fails to the Optionee a notice of default containing particulars of the payment not advanced recommend or shares not issuedwithdraws, or modifies or changes in a manner adverse to Acquiror (in the covenantcase of an action by the board of directors of Target ) or Target, (in the case of an action by the board of directors of Acquiror), as applicable, its approval or recommendation of this Agreement or the Merger;
(c) by Target, if, (i) any representation or warranty breachedof Acquiror set forth in this Agreement and not qualified by its terms as to materiality shall have been untrue when made in any material respect (or any representation or warranty qualified as to materiality shall have been untrue in any respect when made), or (ii) Acquiror shall materially breach any obligation or agreement hereunder in a manner causing any condition precedent to the Closing not to be satisfied and such breach shall not have been cured within 30 days of receipt by Acquiror of written notice of such breach; provided, that the right to terminate this Agreement by Target under this paragraph (c) shall not be available to Target where Target is at that time in material breach of this Agreement;
(d) by Acquiror, if, (i) any representation or warranty of Target set forth in this Agreement and not qualified by its terms as to materiality shall have been untrue when made in any material respect (or any representation or warranty qualified as to materiality shall have been untrue in any respect when made) or (ii) Target shall materially breach any obligation or agreement hereunder in a manner causing any condition precedent to the Closing not to be satisfied and such breach shall not have been cured within 30 days of receipt by Target of written notice of such breach; provided, that the right to terminate this Agreement by Acquiror under this paragraph (d) shall not be available to Acquiror where Acquiror is at that time in material breach of this Agreement; and
(be) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Optionby Target, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as average of the first Business Day immediately following daily high and low trade prices of Acquiror Common Stock on the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination Nasdaq National Market for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies 15 trading days ending on the Property beyond this three (3) month period after termination at trading date that is one day before the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as OperatorEffective Time, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee weighted based on the Property which had theretofore not been delivered to the Optionorvolume of trades during each of those 15 trading days, is less than $2.00.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Capsule Communications Inc De), Merger Agreement (Covista Communications Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the Merger may be abandoned by action taken, authorized or directed by the board of directors of the terminating party or parties at any time prior to the First Option DeadlineEffective Time, by the Optionee giving notice whether before or after receipt of termination to the OptionorCompany Shareholder Approval (except as indicated):
(a) By mutual written agreement of Parent and Company; or
(b) subject By either Parent or Company, if the Merger shall not have been consummated on or prior to paragraph 8.02April 7, 2016 (the “Outside Date”); provided, however, that (i) the Outside Date shall be automatically extended for a period not to exceed sixty (60) days to the extent necessary to satisfy the conditions set forth in Section 6.1(b) and Section 6.1(c) and (ii) the event right to terminate this Agreement pursuant this Section 7.1(b) shall not be available to any party that has breached in any material respect its obligations under this Agreement in any manner that shall have caused the First Option is not exercised failure of the Merger to be consummated on or before the Outside Date; or
(c) By either Parent or Company, if (i) a Law shall have been enacted, entered, promulgated or enforced by a Governmental Entity of competent jurisdiction after the First Option Deadline from time date of this Agreement remaining in effect prohibiting the consummation of the Merger, (ii) an Order shall have been enacted, entered, promulgated or issued by a Governmental Entity of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such Order shall have become final and non-appealable; provided, however, that the party seeking to time.
8.02 Notwithstanding terminate this Agreement pursuant to this clause (ii) shall have used its reasonable best efforts to remove such Order, or (iii) a Governmental Entity shall have failed to issue an Order or to take any other provision action that is necessary to fulfill the condition set forth in Section 6.1(c) and such denial of a request to issue such Order or to take such other action shall have become final and non-appealable; provided, however, that (A) the right to terminate this Agreement pursuant to this clause (iii) shall not be available to any party whose failure to comply with Section 5.4 has been the cause of such inaction and (B) the right to terminate this Agreement pursuant to this Section 7.1(c) shall apply only if the Law, Order or act or omission of the Governmental Entity, as the case may be, shall have caused the failure of any condition set forth in Article 6 to be satisfied and the party entitled to rely on such condition shall not elect to waive such condition; or
(d) By either Parent or Company, if the Company Shareholder Approval shall not have been obtained at the Company Shareholder Meeting at which a vote on such approval was taken; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(d) shall not be available to Company where any breach of Section 5.2 or Section 5.5 by Company shall have caused the failure to obtain the Company Shareholder Approval; or
(e) By Company, if all of the following shall have occurred: (i) Parent shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, if at any time during (ii) such breach or failure to perform would entitle Company not to consummate the term Merger under Section 6.3(a) or Section 6.3(b) and (iii) such breach or failure to perform is incapable of the First Option, the Optionee fails to advance being cured by Parent prior to the Optionor any cash payment Outside Date or, if such breach or shares required under sub-paragraph 4.02(afailure to perform is capable of being cured by Parent prior to the Outside Date, Parent shall not have cured such breach or failure to perform within thirty (30) hereofdays after receipt of written notice thereof (but no later than the Outside Date); provided, or that Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(e) if it is then in material breach of any covenantof its covenants or agreements set forth in this Agreement; or
(f) By Parent, representation if all of the following shall have occurred: (i) Company shall have breached or warranty failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained herein, the Optionor may terminate in this Agreement, (ii) such breach or failure to perform would entitle Parent not to consummate the Merger under Section 6.2(a) or Section 6.2(b) and (iii) such breach or failure to perform is incapable of being cured by Company prior to the Outside Date or, if such breach or failure to perform is capable of being cured by Company prior to the Outside Date, Company shall not have cured such breach or failure to perform within thirty (30) days after receipt of written notice thereof (but only if:no later than the Outside Date); provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(f) if Parent or Merger Sub is then in material breach of any of its covenants or agreements set forth in this Agreement; or
(ag) it By Parent, if any of the following have occurred: (i) the Company Board effected a Change in Recommendation, (ii) Company shall have first given to the Optionee violated in a notice material respect any of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(bSection 5.5 or (iii) hereofCompany enters into any Company Acquisition Agreement with respect to any Acquisition Proposal or Superior Proposal; or
(h) By Company, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision in connection with entering into a Company Acquisition Agreement with respect to a Superior Proposal in compliance with Section 5.5(c); provided that no termination of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment pursuant to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option this Section 7.1(h) shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but effective unless Company shall have paid the right of access to the Property for three (3) months following termination for the purpose of removing Company Termination Fee and otherwise complied with its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optioneeobligations under Section 7.3.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Journal Media Group, Inc.), Merger Agreement (Gannett Co., Inc.)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date:
(a) it shall have first given to by written consent of Newco and the Optionee a notice of default containing particulars of Company, duly authorized by Newco Board and the payment not advanced or shares not issued, or the covenant, representation or warranty breached; andCompany Board;
(b) by either Newco or the Optionee has notCompany, if the Closing shall not have occurred on or before February 3, 1997; provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to the party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or resulted in, the failure of the Closing to occur on or before such date;
(c) by either Newco or the Company, if any final order, decree or ruling preventing the consummation of the Closing shall have been entered by any court of competent jurisdiction or Governmental Entity and shall have become final and nonappealable;
(d) by Newco, (i) in the case of the Company's representations and warranties set forth in this Agreement that are not qualified as to materiality, upon a material breach by the Company of any such representation or warranty, or if any such representation or warranty shall have become untrue in any material respect and (ii) in the case of the Company's representations and warranties set forth in this Agreement that are qualified as to materiality, upon a breach by the Company of any such representation or warranty, or if any such representation or warranty shall have become untrue (any, a "Terminating Company Breach"), in any case such that the conditions set forth in Section 6.3(a) could not reasonably be expected to be satisfied within twenty-two (22) 30 days following delivery such Terminating Company Breach upon the Company's exercise of its reasonable best efforts or such breach has not in any event been cured within 30 days following notification by Newco to the Company of such notice Terminating Company Breach;
(e) by the Company, (i) in the case of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, Newco's representations and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of warranties set forth in this Agreement that are not qualified as to materiality, upon a material breach by Newco or Sub of any such representation or warranty, or if any such representation or warranty shall have become untrue in any material respect and provided (ii) in the case of Newco's representations and warranties set forth in this Agreement that are qualified as to materiality, upon a breach by Newco of any such representation or warranty, or if any such representation or warranty shall become untrue (any, a "Terminating Newco Breach"), in any case such that the Optionee has exercised the First Option, if Optionee conditions set forth in Section 6.2(a) could not reasonably be expected to be satisfied within 30 days following such Terminating Newco Breach upon Newco's exercise of its reasonable best efforts or such Terminating Newco Breach has not advanced in any event been cured within 30 days following notification by the Second Option Payment Company to Newco of such Terminating Newco Breach;
(f) by Newco, upon the material breach by the Company of any covenant or agreement of the Company set forth in this Agreement which is not reasonably capable of being cured within 30 days following such breach upon the Company's exercise of its reasonable best efforts or, in any event, upon the 30th day following notification by Newco to the Optionor prior to Company of such breach if such breach has not been cured by such 30th day; or
(g) by the commencement of Commercial Production (Company, upon the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear material breach by Newco of any claim covenant or encumbrance by or through the Optionee.
8.06 If agreement of Newco set forth in this Agreement terminates prior which is not reasonably capable of being cured within 30 days following such breach upon Newco's exercise of its reasonable best efforts or, in any event, upon the 30th day following notification by the Company to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect Newco of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore such breach if such breach has not been delivered to the Optionorcured by such 30th day.
Appears in 2 contracts
Sources: Transaction Agreement (Progressive Food Concepts Inc), Transaction Agreement (Harrys Farmers Market Inc)
Termination. 8.01 This Agreement shall terminatemay be terminated prior to the Effective Time, whether before or after approval of this Agreement by the Company's stockholders:
(a) by mutual written consent of DGAC and the Company;
(b) by either DGAC or the Company if (i) the Merger shall not have been consummated by the date which is 180 days after the date of this Agreement (the "Termination Date") (unless the failure to consummate the Merger is attributable to a failure on the part of the party seeking to terminate this Agreement to perform any material obligation required to be performed by such party at or prior to the Termination Date); or (ii) this Agreement has not been approved by the requisite vote of the holders of Company Common Stock at the Company Stockholders' Meeting;
(c) by either DGAC or the Company if a court of competent jurisdiction or other Governmental Authority shall have issued a final and non-appealable Order, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by DGAC, at any time prior to the First Option DeadlineEffective Time, if a Company Triggering Event shall have occurred;
(e) by DGAC, at any time prior to the Effective Time, if (i) any of the Company's material representations or warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the conditions set forth in Section 8.1 and Section 8.3 would not be satisfied, and such inaccuracies shall not have been remedied within ten (10) days after receipt by the Optionee giving Company of notice from DGAC specifying the nature of termination such inaccuracies and requesting that they be remedied, or (ii) any of the Company's material covenants contained in this Agreement shall not have been performed such that the conditions set forth in Article VIII would not be satisfied, and such non-performance shall not have been remedied within ten (10) days after receipt by the Company of notice from DGAC specifying the nature of such non-performance and requesting that it be remedied;
(f) by the Company, at any time prior to the OptionorEffective Time, if (i) any of the DGAC's material representations or warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the conditions set forth in Section 8.1 and Section 8.2 would not be satisfied, and such inaccuracies shall not have been remedied within ten (10) days after receipt by DGAC of notice from the Company specifying the nature of such inaccuracies and requesting that they be remedied, or (ii) any of the DGAC's material covenants contained in this Agreement shall not have been performed such that the conditions set forth in Article VIII would not be satisfied, and such non-performance shall not have been remedied within ten (10) days after receipt by DGAC of notice from the Company specifying the nature of such non-performance and requesting that it be remedied; or
(bg) subject by the Company, if (i) the Board of Directors of the Company or the Special Committee shall have withdrawn its Recommendations in accordance with Section 7.9(f), or (ii) the Company shall have entered into an agreement providing for a Company Acquisition Transaction (and neither the Company nor any of its Representatives shall have violated any of the restrictions set forth in Section 7.9). As used in this Section 9.1, a "Company Triggering Event" shall be deemed to paragraph 8.02, have occurred if there shall have been submitted to the Company a Takeover Proposal and: (i) the Board of Directors of the Company shall have failed to make and include in the event Proxy Statement, or shall have withdrawn, or modified in a manner adverse to DGAC, the First Option is not exercised Recommendations; it being hereby acknowledged and understood that any position taken pursuant to Rule 14e-2(a)(2) under the Exchange Act shall be deemed to constitute the withdrawal or modification in a manner adverse to the DGAC, of the Recommendations by the First Option Deadline from time Company's Board of Directors; (ii) the Board of Directors of the Company or the Special Committee shall have publicly recommended any Takeover Proposal or shall have publicly announced an intention or that it has resolved to time.
8.02 Notwithstanding any other provision do so, or the Company shall have entered into an agreement providing for a Company Acquisition Transaction; or (iii) the Company shall have materially breached its obligations under Section 7.9 of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only if:
(a) it shall have first given to the Optionee a notice of default containing particulars of the payment not advanced or shares not issued, or the covenant, representation or warranty breached; and
(b) the Optionee has not, within twenty-two (22) days following delivery of such notice of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment to the Optionor prior to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Merger Agreement (Disc Graphics Inc /De/), Merger Agreement (Dg Acquisition Corp)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date as follows:
(a) it shall have first given to the Optionee a notice of default containing particulars By mutual written consent of the payment not advanced or shares not issued, or Investor and the covenant, representation or warranty breached; andCompany.
(b) By either the Optionee Investor or the Company if the Closing Date shall not have occurred on or before the 90th day immediately following the date hereof (the "Outside Date"); provided that the right to terminate this ------------ -------- ---- Agreement under this Section 8.1(b) shall not be available to any party -------------- whose failure to fulfill any obligation under this Agreement has not, within twenty-two (22) days following delivery been the cause of or resulted in the failure of the Closing Date to occur on or before such notice of default, cured such defaultdate.
8.03 Should (c) By either the Optionee Investor or the Company if any Governmental Entity shall have issued an Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the issuance of the Debentures and such Order or other action shall have become final and nonappealable.
(d) By the Investor, if (i) any of the representations and warranties of the Company contained in this Agreement shall fail to be true and correct in any material respect when made or since February 4, 1999 have become untrue or incorrect (without giving effect to the first paragraph of Article III) except to the extent that the failure to be true and correct ----------- has not had and could not reasonably be expected to have, in the aggregate, an adverse affect on the Company and its Subsidiaries, taken as a whole, that a reasonably prudent investor in the Investor's position would consider material relative to the transactions to be consummated by the Investor pursuant to this Agreement or (ii) the Company shall have breached or failed to comply in any material respect with the provisions any of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate its obligations under this Agreement, and such failure to be true and correct, breach or failure shall continue unremedied for 15 days after the provisions Company has received written notice from the Investor of paragraph 8.06 hereof the occurrence of such failure to be true and correct, breach or failure; provided, however, that in remedying any such failure to be true and -------- ------- correct, breach or failure the Company shall then applynot have spent any money, incurred any liabilities or undertaken any obligations which expenditure, incurrence or undertaking, individually or together with the breach or failure so remedied, would itself constitute a material breach of or failure to perform any representation, warranty or covenant of this Agreement.
8.04 Notwithstanding (e) By the Investor if there shall have occurred any material adverse change since December 31, 1998.
(f) By the Company if (i) any of the representations and warranties of the Investor contained in this Agreement shall fail to be true and correct in any material respect, in each case either as of the date hereof or have since become, and at the time of termination remain, untrue in any material respect, or (ii) the Investor shall have breached or failed to comply in any material respect with any of its obligations under this Agreement (other provision than as a result of a breach by the Company of any of its obligations under this Agreement) and such failure to be true and correct, breach or failure shall continue unremedied for 15 days after the Investor has received written notice from the Company of the occurrence of such breach or failure.
(g) By the Investor if either (i) the Offer shall have been terminated for any reason or (ii) the Offer shall have expired in accordance with its terms and the Company shall not have accepted for payment at the Offer Price at least 21 million Shares.
(h) By the Company if prior to the Closing Date, (i) the Company shall have received an Acquisition Proposal, (ii) in connection with such Acquisition Proposal, the Board of Directors of the Company shall have concluded in good faith after consultation with outside counsel that it is required to terminate this Agreement to prevent the Board of Directors of the Company from breaching its fiduciary duties to its stockholders under applicable law, (iii) the Company has complied and is in compliance with Section 5.2, (iv) prior to being entitled to terminate this Agreement under ----------- this Section 8.1(h), the Company shall have provided to the Investor at -------------- least 7 days prior written notice (which notice shall set forth the terms and conditions of such Acquisition Proposal and identify the applicable Third Party), the Company shall have cooperated with the Investor during such 7 day period with the intent of enabling the Investor (if it so desires) and the Company to agree to a modification of the terms and conditions of this Agreement and provided that (v) the Optionee has exercised the First Option, if Optionee has not advanced the Second Option Payment Company shall have paid to the Optionor prior to Investor the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse Termination Fee and be or no further force or effect as reimbursed all of the first Business Day immediately following the Commencement DateInvestor's Expenses.
8.05 The Optionee (i) By the Investor if the Company shall vacate the Property within not have received a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies signed audit report from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made PricewaterhouseCoopers LLP in respect of all Work the 1998 Financial Statements prior to March 31, 1999 or such audited financial statements shall not be substantially identical to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor1998 Financial Statements.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Building One Services Corp), Securities Purchase Agreement (Boss Investment LLC)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing as follows:
(a) it shall have first given to by the Optionee a notice of default containing particulars mutual written consent of the payment not advanced or shares not issued, or Parent and the covenant, representation or warranty breached; andPurchaser;
(b) by the Optionee has notParent or CVS, within twenty-two if the Closing shall not have occurred on or before August 31, 2004 (22) days following delivery the “End Date”), otherwise than as a result of such notice any material breach of default, cured such default.
8.03 Should the Optionee fail to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement by the party, or such party’s affiliates who are parties to this Agreement, seeking to terminate this Agreement;
(c) by the Parent or CVS, if any court of competent jurisdiction or other Governmental Entity shall have permanently enjoined, restrained or otherwise prohibited the consummation of the transactions contemplated hereby and such injunction, restraint or prohibition shall have become final and nonappealable, provided that the Optionee has exercised party seeking to terminate this Agreement shall have used its reasonable best efforts to prevent and remove such injunction, restraint or prohibition;
(d) by the First OptionParent, (i) if Optionee CVS or the Purchaser shall have breached any of their respective representations or warranties contained in this Agreement if such breaches, individually or in the aggregate, have had and would reasonably be expected to have a Purchaser Effect, or (ii) if CVS or the Purchaser shall have materially breached any of their respective covenants contained in this Agreement, in each case which breach cannot be or has not advanced been cured within 30 calendar days after the Second Option Payment giving of written notice to CVS and the Purchaser; or
(e) by CVS or the Purchaser, (i) if the Parent or the Sellers shall have breached any of their respective representations or warranties contained in this Agreement if such breaches, individually or in the aggregate, have had and would reasonably be expected to have a Material Adverse Effect, or (ii) if the Parent or the Sellers shall have materially breached any of their respective covenants contained in this Agreement, in each case which breach cannot be or has not been cured within 30 calendar days after the giving of written notice to the Optionor prior Parent and the Sellers. The party desiring to terminate this Agreement pursuant to this Section 6.01 shall give notice of such termination to the commencement of Commercial Production (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Dateother party.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (3) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 days from the date of termination; and
(b) ensure that the Optionor is provided with copies of all geotechnical information, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining to the Property and relating to the work or activities of the Optionee on the Property which had theretofore not been delivered to the Optionor.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (J C Penney Co Inc)
Termination. 8.01 This Agreement shall terminate:
(a) may be terminated at any time prior to the First Option Deadline, by the Optionee giving notice of termination to the Optionor; or
(b) subject to paragraph 8.02, in the event the First Option is not exercised by the First Option Deadline from time to time.
8.02 Notwithstanding any other provision of this Agreement, if at any time during the term of the First Option, the Optionee fails to advance to the Optionor any cash payment or shares required under sub-paragraph 4.02(a) hereof, or is in breach of any covenant, representation or warranty contained herein, the Optionor may terminate this Agreement, but only ifClosing Date:
(a) it shall have first given to the Optionee a notice of default containing particulars by mutual written consent of the payment not advanced or shares not issued, or Seller and the covenant, representation or warranty breached; andBuyer;
(b) by the Optionee Buyer or the Seller, if any state or federal law, order, rule or regulation is adopted or issued, which has notthe effect, within twenty-two (22) days following delivery as supported by the written opinion of outside counsel for such notice party, of defaultprohibiting the Closing, cured or by the Buyer or the Seller, if any court of competent jurisdiction in the United States or any state shall have issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the Closing, and, in either case, if such defaultorder, rule, regulation, judgment or decree shall have become final and nonappealable.
8.03 Should (c) by the Optionee fail Buyer or the Seller, by written notice to comply with the provisions of sub-paragraph 8.02(b) hereof, the Optionor, without any further notice, may thereafter terminate this Agreement, and the provisions of paragraph 8.06 hereof shall then apply.
8.04 Notwithstanding any other provision of this Agreement and provided that the Optionee has exercised the First Optionparty, if Optionee has the Closing Date shall not advanced have occurred on or before the Second Option Payment to the Optionor prior to the commencement of Commercial Production date that is forty-five (the “Commencement Date”), the Second Option shall automatically lapse and be or no further force or effect as of the first Business Day immediately following the Commencement Date.
8.05 The Optionee shall vacate the Property within a reasonable time after termination, but shall have the right of access to the Property for three (345) months following termination for the purpose of removing its buildings, plant, equipment, machinery, tools, appliances and supplies from the Property. All buildings, plant, equipment, machinery, tools, appliances or supplies on the Property beyond this three (3) month period after termination at the absolute discretion of the Optionor shall become the property of the Optionor free and clear of any claim or encumbrance by or through the Optionee.
8.06 If this Agreement terminates prior to a First Option Deadline at a time when the Optionee is acting as Operator, the Optionee shall forthwith:
(a) ensure that all filings for assessment credit have been made in respect of all Work to the maximum extent permitted, or all payments of money in lieu thereof have been made to maintain the Property in good standing for at least 120 calendar days from the date hereof (the “Initial Termination Date”); provided, however, that the right to terminate the Agreement under this Section 8.1(c) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have proximately contributed to the failure of terminationthe Closing Date to occur on or before such date; andand provided, further, that if on the Initial Termination Date the conditions to the Closing set forth in Sections 7.1(b), 7.2(e) and/or 7.3(e) shall not have been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, then the Initial Termination Date shall be extended to the date that is ninety (90) calendar days from the date hereof;
(bd) ensure that by the Optionor is provided with copies of all geotechnical informationBuyer, including, without limiting, plans, assay maps, diamond drill records, diamond drill core and all other data information in all formats including without limiting, electronic records pertaining by written notice to the Property Seller, if there shall have been any breach of any representation or warranty, or any breach of any covenant or agreement of the Seller hereunder, which breaches individually or in the aggregate would result in a Company Material Adverse Effect, and relating such breach shall not have been remedied within thirty (30) days after receipt by the Seller of notice in writing from the Buyer, specifying the nature of such breach and requesting that it be remedied, or the Buyer shall not have received adequate assurance of a cure of such breach within such thirty (30) day period;
(e) by the Seller, by written notice to the work or activities Buyer, if (i) there shall have been a breach of any of the Optionee on covenants contained in Section 5.3(c), or (ii) there shall have been any breach of any representation or warranty, or any breach of any other covenant or agreement of the Property Buyer hereunder, which had theretofore breaches individually or in the aggregate would result in a Buyer Material Adverse Effect, and, in the case of either (i) or (ii), such breach shall not have been delivered remedied within thirty (30) days after receipt by the Buyer of notice in writing from the Seller, specifying the nature of such breach and requesting that it be remedied, or the Seller shall not have received adequate assurance of a cure of such breach within such thirty (30) day period;
(f) by the Buyer if a supplement to or amendment of any section of the OptionorSeller Disclosure Schedule made by the Seller pursuant to Section 6.13 results in a Company Material Adverse Effect; or
(g) by the Seller if the Buyer shall not have satisfied, by April 1, 2003, its condition to close set forth in Section 7.2(f).
Appears in 2 contracts
Sources: Purchase Agreement, LLC Purchase Agreement (Dqe Inc)