Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN): (a) by mutual written consent of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; or (b) by either APL or Atlas: (i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) 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 Sale to have been consummated by such date; or (ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or (c) by Atlas: (i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or (ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or (d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Atlas Pipeline Partners Lp), Purchase and Sale Agreement (Atlas Energy, Inc.), Purchase and Sale Agreement (Atlas Pipeline Holdings, L.P.)
Termination. This Notwithstanding any other provision of this Agreement, and notwithstanding the approval of this Agreement by the shareholders of Malvern or First Bank, this Agreement may be terminated and the Sale may be Merger abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time:
(a) by By mutual written consent agreement of APL First Bank and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orMalvern;
(b) by By either APL Party in the event (i)(A) any Regulatory Authority has denied a Requisite Regulatory Approval and such denial has become final, or Atlas:
has advised either Party in writing or both Parties orally that it will not grant (ior intends to rescind or revoke if previously approved) if a Requisite Regulatory Approval), or (AB) any Regulatory Authority shall have requested in writing that Malvern or First Bank or any of their respective Affiliates withdraw (other than for technical reasons), and not be permitted to resubmit within 60 days, any application with respect to a Requisite Regulatory Approval, provided that (1) the Sale failure to obtain a Requisite Regulatory Approval shall be not have been consummated on be due to the failure of the Party seeking to terminate this Agreement to perform or before September 30observe, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, thenin any material respect, the Outside Date shall become November 30obligations, 2011; covenants and agreements of such Party set forth herein and (B2) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i9.1(b)(i) shall not have breached used its obligations in any material respect under this Agreement in any manner that shall have proximately caused reasonable best efforts to contest, appeal and change such denial or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an any Law or Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order transactions contemplated by this Agreement shall have become final and non-appealablenonappealable, provided that (A) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii9.1(b)(ii) shall have complied with used its obligations pursuant reasonable best efforts to Section 5.1 with respect contest, appeal and remove such Law or Order and (B) the failure of such condition to be satisfied or fulfilled is not a result of the failure of the Party seeking to terminate this Agreement to perform or observe, in any material respect, the obligations, covenants and agreements of such Order; orParty set forth herein;
(c) By either Party in the event that the Merger shall not have been consummated by Atlas:the 12-month anniversary of the date hereof, if the failure to consummate the transactions contemplated hereby on or before such date is not caused by any breach of this Agreement by the Party electing to terminate pursuant to this Section 9.1(c);
(id) if (A) (x) By First Bank in the event that any of the representations conditions precedent to the obligations of First Bank to consummate the Merger contained in Section 8.2 cannot be satisfied or warranties of APL herein shall be untrue or inaccurate on fulfilled by the date specified in Section 9.1(c) (provided that the failure of this Agreement such condition to be satisfied or shall thereafter become untrue or inaccuratefulfilled is not a result of First Bank’s failure to perform, or (y) APL shall have breached or failed to perform in any material respect, any of its covenants or agreements set forth contained in this Agreement or the breach by First Bank of any of its material representations or warranties contained in this Agreement) and which is not cured within forty-five (45) days following written notice to Malvern, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the date specified in each case Section 9.1(c));
(e) By First Bank in the event that the board of directors of Malvern has (i) failed to recommend the Merger and the approval of this Agreement by the shareholders of Malvern or otherwise effected a Change in the Malvern Recommendation in a manner adverse in any respect to the interests of First Bank, (ii) breached the terms of Section 7.2 in any respect adverse to First Bank (other than unintentional, immaterial breaches that do not prejudice First Bank’s rights under such section), or (iii) breached its obligations under Section 7.1 by failing to call, give notice of, convene and/or hold Malvern Shareholders Meeting in accordance with Section 7.1;
(f) By Malvern in the event that any condition set forth of the conditions precedent to the obligations of Malvern to consummate the Merger contained in Section 6.2(a) or 6.2(b) would 8.3 cannot be satisfied at Closing; and or fulfilled by the date specified in Section 9.1(c) (B) provided that the failure of such untruth, inaccuracy, breach condition to be satisfied or fulfilled is not a result of Malvern’s failure to perform perform, in any material respect, any of its covenants or agreements contained in this Agreement or the breach by Malvern of any of its material representations or warranties contained in this Agreement) and which is not curable cured within forty-five (45) days following written notice to First Bank, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Outside Datedate specified in Section 9.1(c));
(g) by First Bank, if the FDIC or NJDOBI has granted a Requisite Regulatory Approval but such Requisite Regulatory Approval contains or would result in the imposition of a Burdensome Condition and there is no meaningful possibility that such Requisite Regulatory Approval could be revised prior to the date specified in Section 9.1(c) so as not to contain or result in a Burdensome Condition;
(h) by First Bank or Malvern if the FDIC or NJDOBI shall have requested in writing that First Bank, Malvern or any of their respective Affiliates withdraw (other than for technical reasons), and not be permitted to resubmit within 60 days, any application with respect to a Requisite Regulatory Approval;
(i) by either Malvern or First Bank if (i) First Bank Shareholder Approval at the First Bank Shareholder Meeting or (ii) the Malvern Shareholder Approval at the Malvern Shareholder Meeting, in either case, shall not have been obtained by reason of the failure to obtain the required vote at a duly held meeting of such shareholders as may be adjourned or postponed in accordance with this Agreement; provided, that the Party seeking to terminate the Agreement has not failed to perform or observe, in any material respect, the obligations, covenants and agreements of such Party set forth herein; or
(iij) if the Merger Agreement is terminated (provided thatby Xxxxxxx, in order the event that the board of directors of First Bank has (i) failed to terminate this Agreement pursuant to this subclause (ii)recommend the Merger, Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date approval of this Agreement and the increase by three of the number of directors constituting the entire Board of Directors of First Bank by the shareholders of First Bank or shall thereafter become untrue or inaccurateotherwise effected a change in the First Bank Recommendation in a manner adverse in any respect to the interests of Malvern, (ii) breached the terms of Section 7.2 in any respect adverse to Malvern (other than unintentional, immaterial breaches that do not prejudice Malvern’s rights under such section), or (Biii) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this its obligations under Section 7.1 shall by failing to call, give notice of such termination and the provisions of this of, convene and/or hold First Bank Shareholders Meeting in accordance with Section 7.1 being relied on to terminate this Agreement to the other Parties7.1.
Appears in 3 contracts
Samples: Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.)
Termination. This Agreement may be terminated and the Sale transactions contemplated by this Agreement may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Closing:
(a) by mutual written consent of APL JAC and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL JAC, if any of the representations or Atlas:warranties of the Company set forth in ARTICLE 3 or the representations and warranties of the Stockholders set forth in ARTICLE 4 shall not be true and correct such that the condition to Closing set forth in Section 7.2(a) would not be satisfied; provided that, prior to any termination of this Agreement under this Section 8.1(b), the Company and Stockholders shall be entitled to cure any such breach during a thirty (30) day period following receipt of written notice from JAC to the Stockholders of such breach (it being understood that JAC may not terminate this Agreement pursuant to this Section 8.1(b) if such breach by the Company or the Stockholders is cured during such thirty (30) day period so that such condition would then be satisfied);
(ic) by the Company, if any of the representations or warranties of JAC set forth in ARTICLE 5 shall not be true and correct such that the condition to Closing set forth in Section 7.3(a) would not be satisfied; provided that, prior to any termination of this Agreement under this Section 8.1(c), JAC shall be entitled to cure any such breach during a thirty (30) day period following receipt of written notice from Stockholders to JAC of such breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 8.1(c) if such breach by JAC is cured during such thirty (A30) day period so that such condition would then be satisfied);
(d) by either the Sale Company or JAC, if the transactions contemplated by this Agreement shall not have been consummated on or before September 30prior to July 2, 2011 2019 (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(d) shall not have breached be available to any Party if the failure to consummate the transactions contemplated by this Agreement is the result of a breach by such Party of its representations, warranties, obligations in any material respect or covenants under this Agreement in Agreement; and
(e) by either JAC or the Company, if any manner that Governmental Entity shall have proximately caused issued an order, decree or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered ruling or taken any other action permanently restrainingenjoining, enjoining restraining or otherwise prohibiting the consummation of the Sale transactions contemplated by this Agreement and such Order order, decree or ruling or other action 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.
Appears in 3 contracts
Samples: Share Exchange Agreement (Myrick Frederick JR), Share Exchange Agreement (Peck Jeffrey), Share Exchange Agreement (Jensyn Acquisition Corp.)
Termination. This Agreement may be terminated and the Sale Merger contemplated hereby may be abandoned at any time prior to the Closing (with any termination Effective Time, notwithstanding approval thereof by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the stockholders of the Company:
(a) by mutual written consent of APL the Company and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orParent;
(b) by either APL the Company or Atlas:Parent, if
(i) if (A) the Sale shall not Offer terminates or expires in accordance with its terms without Acquisition Sub's having purchased any Shares pursuant to the Offer because of a failure of any of the conditions set forth in Annex A hereto to have been consummated on satisfied at the time of such termination or before September 30, 2011 (the “Outside Date”)expiration; provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached be available to any party whose failure to fulfill any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale to have been consummated by satisfied any such date; orcondition;
(ii) if an Order shall Shares have not been entered permanently restrainingaccepted for payment pursuant to the Offer on or prior to December 31, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealable1997; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with not be available to any party whose failure to fulfill any of its obligations pursuant under this Agreement results in the failure of the Offer to Section 5.1 with respect to be consummated by such Order; ortime;
(ciii) by Atlas:
(i) if (A) (x) any Governmental Entity shall have issued a Restraint or taken any other action permanently enjoining, restraining or otherwise prohibiting consummation of the Merger or any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of other transactions contemplated by this Agreement and such Restraint or shall thereafter become untrue or inaccurate, or (y) APL other action shall have breached or failed to perform any of its covenants or agreements set forth in this Agreementbecome final and nonappealable; provided, in each case such however, that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring party seeking to terminate this Agreement pursuant to this Section 7.1 7.1(b)(iii) shall give notice have used all reasonable efforts to prevent the entry of and to remove such termination Restraint or other action; or
(iv) the Board of Directors of the Company (or, if applicable, any committee thereof) shall have (A) withdrawn or modified in a manner adverse to Parent and Acquisition Sub its approval or recommendation of the Offer or the Merger or (B) approved or recommended any Takeover Proposal in respect of the Company or (C) resolved to take any of the foregoing actions, in each case in compliance with the provisions of this contained in Section 7.1 being relied on to terminate this Agreement to the other Parties5.2(b) or (d).
Appears in 3 contracts
Samples: Merger Agreement (Score Acquisition Corp), Merger Agreement (Talley Manufacturing & Technology Inc), Agreement and Plan of Merger (Talley Industries Inc)
Termination. This Agreement may be terminated and the Sale Merger contemplated hereby may be abandoned at any time prior to the Closing (with Effective Time, notwithstanding any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Stockholder Consents:
(a) by By mutual written consent duly authorized by the Parent and the Board of APL and Atlas, by action Directors of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by By either APL Parent or Atlas:
(i) the Company if (A) the Sale Merger shall not have been consummated on or before September 30April 9, 2011 (the “Outside Date”); 2007 (; provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(b) shall not have breached its obligations in be available to any party whose willful failure to fulfill any material respect obligation under this Agreement in any manner that shall have proximately caused has been the cause of, or resulted in in, the failure of the Sale Merger to have been consummated by on or before such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or;
(c) by Atlas:By either Parent or the Company, if a Court or Governmental Authority shall have issued an Order or taken any other action, in each case which has become final and non appealable and which restrains, enjoins or otherwise prohibits the Merger;
(d) By Parent, if the Stockholder Consents shall not have been obtained at or prior to the Effective Time;
(e) By Parent, if neither Parent nor Merger Sub is in material breach of its obligations under this Agreement, and if (i) if (A) (x) at any time that any of the representations or and warranties of APL the Company herein shall be become untrue or inaccurate such that Section 7.2(a) would not be satisfied (treating such time as if it were the Effective Time for purposes of this Section 8.1(e)) or (ii) there has been a breach on the date part of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform the Company of any of its covenants or agreements set forth contained in this Agreement, in each case Agreement such that any condition set forth in Section 6.2(a) or 6.2(b7.2(b) would not be satisfied at Closing; and (B) treating such untruthtime as if it were the Effective Time for purposes of this Section 8.1(e)), inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided thatand, in order to terminate this Agreement pursuant to this subclause both case (i) and case (ii), Atlas must exercise its right such breach (if curable) has not been cured within 30 days after notice to do so within thirty days of the termination of the Merger Agreement); orCompany;
(df) by APLBy the Company, if it is not in material breach of its obligations under this Agreement, and if (i)(Ai) at any time that any of the representations or and warranties of Atlas Parent or Merger Sub herein shall be become untrue or inaccurate such that Section 7.3(a) would not be satisfied (treating such time as if it were the Effective Time for purposes of this Section 8.1(f)) or (ii) there has been a breach on the date part of this Agreement Parent or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform Merger Sub of any of their respective covenants or agreements set forth contained in this Agreement, in each case Agreement such that any condition set forth in Section 6.3(a) or 6.3(b7.3(b) would not be satisfied at Closing, and (ii) treating such untruth, inaccuracy, breach or failure to perform is not curable by time as if it were the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions Effective Time for purposes of this Section 7.1 being relied on 8.1(f), and such breach (if curable) has not been cured within 30 days after notice to terminate this Agreement to the other PartiesParent; Termination of Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Google Inc.), Agreement and Plan of Merger (Google Inc.)
Termination. This Agreement may be terminated terminated, and the Sale Merger contemplated hereby may be abandoned by action taken or authorized by the Board of Directors of the terminating party or parties, whether before or, subject to the terms hereof, after adoption of this Agreement by the stockholders of the Company or of Merger Sub:
(a) By mutual written consent of Parent and the Company, by action of their respective Boards of Directors, at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orEffective Time;
(b) by By either APL the Company or Atlas:Parent, if any court of competent jurisdiction or other Governmental Entity has issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger, which Order or other action has become final and nonappealable (which Order the party seeking to terminate this Agreement has used its reasonable best efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 5.5);
(c) By Parent, at any time prior to the Effective Time if a Triggering Event has occurred;
(d) By the Company, prior to obtaining the Company Stockholder Approval, in connection with the Company Board’s causing the Company to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal in accordance with Section 5.3(e); provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(d) will not be available unless (i) the Company shall have complied in all material respects with Section 5.3, (ii) prior to or concurrently with such termination, the Company pays to Parent by wire transfer in immediately available funds the Breakup Fee and (iii) substantially concurrently with such termination, the Company enters into a definitive Alternative Acquisition Agreement with respect to such Superior Proposal;
(e) By Parent or the Company, if (A) the Sale shall Effective Time has not have been consummated occurred on or before September 30January 1, 2011 2017 (the “Outside Date”); provided, however, thatthat either the Company or Parent may, if upon written notice to the Sale shall not have occurred by September 30other party, 2011, and a New Merger Agreement shall have been executed, then, extend the Outside Date to July 1, 2017 if the condition set forth in Section 6.1(b) has not been satisfied prior to the initial Outside Date but all other conditions to Closing shall become November 30be or shall be capable of being fulfilled (assuming the Closing were to occur on the initial Outside Date);
(f) By Parent, 2011; if: (i) there is an Uncured Inaccuracy in any representation or warranty of the Company contained in this Agreement or a breach of any covenant of the Company contained in this Agreement, in any case, such that any condition to the Merger in Section 6.2(a) or Section 6.2(b) is not satisfied, (ii) Parent has delivered to the Company written notice of such Uncured Inaccuracy or breach and (Biii) either such Uncured Inaccuracy or breach is not capable of cure or, if curable, has not been cured in all material respects prior to the earlier of (x) the Party seeking Outside Date and (y) the thirtieth day following the delivery of such written notice to the Company; provided, however, that Parent will not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(f) shall not have if: (A) any material covenant of Parent or Merger Sub contained in this Agreement has been breached its obligations in any material respect under respect, and such breach has not been cured in all material respects; or (B) there is an Uncured Inaccuracy in any representation or warranty of Parent or Merger Sub contained in this Agreement such that the condition to the Merger in Section 6.3(a) is not satisfied;
(g) By the Company, if: (i) there is an Uncured Inaccuracy in any manner that shall have proximately caused representation or resulted warranty of Parent or Merger Sub contained in this Agreement or breach of any covenant of Parent or Merger Sub contained in this Agreement has had or is reasonably likely to have, individually or in the failure of the Sale to have been consummated by such date; or
aggregate, a Parent Material Adverse Effect, (ii) the Company has delivered to Parent written notice of such Uncured Inaccuracy or breach and (iii) either such Uncured Inaccuracy or breach is not capable of cure or, if an Order shall have curable, has not been entered permanently restrainingcured in all material respects prior to the earlier of (x) the Outside Date and (y) the thirtieth day following the delivery of such written notice to Parent; provided, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealablehowever, provided that the Party seeking Company will not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(ii7.1(g) shall have complied with its obligations pursuant if: (A) any material covenant of the Company contained in this Agreement has been breached in any material respect, and such breach has not been cured in all material respects; or (B) there is an Uncured Inaccuracy in any representation or warranty of the Company contained in this Agreement such that the condition to the Merger in Section 5.1 with respect to such Order6.2(a) is not satisfied; or
(ch) by Atlas:
(i) if (A) (x) any of By Parent or the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurateCompany, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of Company Stockholder Approval shall not have been obtained at the termination of the Merger Agreement); or
(d) by APL, if (i)(A) Company Stockholder Meeting duly convened therefor or at any of the representations adjournment or warranties of Atlas herein shall be untrue or inaccurate postponement thereof at which a vote on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesadoption was taken.
Appears in 3 contracts
Samples: Merger Agreement (Alaska Air Group, Inc.), Merger Agreement (Alaska Air Group, Inc.), Merger Agreement (Virgin America Inc.)
Termination. (a) This Agreement is subject to immediate termination at the option of the Company, upon written notice to the Administrator, in the event that a voluntary or involuntary proceeding is commenced in any state by or against the Administrator for the purpose of conserving, rehabilitating or liquidating the Administrator, or the Administrator shall lose its authority to perform services hereunder and, in either event, this Agreement is not promptly assigned by the Administrator to an affiliate of Administrator pursuant to Section 16.5.
(b) This Agreement may be terminated and the Sale may be abandoned at any time prior to upon the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and Atlasthe parties hereto, by action which writing shall state the effective date of termination.
(c) In the event that this Agreement is terminated under any of the APL Board and Atlas’s board provisions of directorsSection 15.2(a), respectively; or
(b) the Administrator shall select a third-party administrator to perform the services required by either APL or Atlas:
(i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement this Agreement. The Company shall have been executedthe right to approve any such third-party administrator selected by the Administrator, then, but such approval will not unreasonably be withheld. If the Outside Date shall become November 30, 2011; and (B) the Party seeking Administrator fails to terminate this Agreement select a third-party administrator pursuant to this Section 7.1(b)(i) 15.2(c), the Company shall not have breached its obligations select such a third-party administrator. In either case, the Administrator shall pay all fees and charges imposed by the selected third-party administrator and the reasonable costs of the Company in any material respect the transition of the performance of the services required under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); orthird-party administrator.
(d) by APL, if (i)(A) any of In the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of event that this Agreement or is terminated, the Administrator shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any cooperate fully in the transfer of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, services and (ii) such untruth, inaccuracy, breach or failure to perform is not curable the books and records maintained by the Outside Date. The Party desiring to terminate this Agreement Administrator pursuant to this Agreement (or, where appropriate, copies thereof) to the third-party administrator selected pursuant to Section 7.1 shall give notice of such termination and 15.2(c) (in the event that this Agreement is terminated under Section 15.2(a)) or to the Company (in the event that this Agreement is terminated pursuant to the provisions of this Section 7.1 being relied on 15.2(b)), so that such third-party administrator or the Company, as the case may be, will be able to terminate perform the services required under this Agreement to the other Partieswithout interruption following termination of this Agreement.
Appears in 3 contracts
Samples: Aggregate Loss Portfolio Reinsurance Agreement, Aggregate Loss Portfolio Reinsurance Agreement (Assured Guaranty LTD), Retrocession Agreement (Assured Guaranty LTD)
Termination. This The parties agree that:
(a) if any condition contained in Sections 5.1 or 5.2 is not satisfied at or before the Termination Date to the satisfaction of Vista, then Vista may, subject to Section 5.4, by notice to the other parties hereto terminate this Agreement may and the obligations of the parties hereunder (except as otherwise herein provided) but without detracting from the rights of Vista arising from any breach by either of the Pescios but for which the condition would have been satisfied;
(b) if any condition contained in Sections 5.1 or 5.3 is not satisfied at or before the Termination Date to the satisfaction of the Pescios, then the Pescios may, subject to Section 5.4, by notice to the other parties hereto terminate this Agreement and the obligations of the parties hereunder (except as otherwise herein provided) but without detracting from the rights of the Pescios arising from any breach by Vista or Vista U.S. but for which the condition would have been satisfied;
(c) this Agreement may:
(i) be terminated and by the Sale may mutual agreement of the parties hereto;
(ii) be abandoned terminated by either Vista or the Pescios, if there shall be passed any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited;
(iii) be terminated by Vista or the Pescios if the approval of the Vista Securityholders shall not have been obtained by reason of the failure to obtain the required vote on the Vista Resolutions at the Vista Meeting, in each case, at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and AtlasTermination Date, by action of the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL or Atlas:
(i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking written notice 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 Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); orall other parties;
(d) by APLif the Effective Date does not occur on or prior to the Termination Date, if (i)(A) then this Agreement shall automatically terminate without any further action of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of parties hereto; and
(e) if this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth is terminated in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by accordance with the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the foregoing provisions of this Section 7.1 being relied on 6.3, no party shall have any further liability to terminate this Agreement to the other Partiesperform its obligations hereunder except as specifically contemplated hereby.
Appears in 3 contracts
Samples: Merger Agreement (Vista Gold Corp), Arrangement and Merger Agreement (Allied Nevada Gold Corp), Arrangement and Merger Agreement (Allied Nevada Gold Corp)
Termination. This Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing Effective Time, and (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):except in the case of 7.1(e) or 7.1(f)) whether before or after the Parent Stockholder Approval or the Company Stockholder Approval:
(a) by mutual written consent of APL the Company and AtlasParent, if the Board of Directors of each so determines by action a vote of the APL Board and Atlas’s board a majority of directors, respectively; orits entire Board;
(b) by either APL the Company Board or Atlasthe Parent Board:
(i) if (A) the Sale Merger shall not have been consummated on or before September by June 30, 2011 (2000, unless the “Outside Date”Company Board or Parent Board, as the case may be, has expressly restricted in writing its right to terminate this Agreement pursuant to this Section 7.1(b)(i); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached be available to any party whose failure to perform any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Merger to have been be consummated by such date; ortime;
(ii) if an Order the Parent Stockholder Approval shall not have been entered permanently restraining, enjoining obtained at the Parent Special Meeting duly convened therefor or otherwise prohibiting at any adjournment or postponement thereof;
(iii) if the consummation Company Stockholder Approval shall not have been obtained at the Company Special Meeting duly convened therefor or at any adjournment or postponement thereof; or
(iv) if any Restraint having any of the Sale effects set forth in Section 6.1(d) shall be in effect and such Order shall have become final and non-appealablenonappealable, provided or if any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Merger and such denial has become final and nonappealable; provided, however, that the Party party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii7.1(b)(iv) shall have complied with its obligations pursuant used commercially reasonable efforts to Section 5.1 with respect prevent the entry of and to remove such Order; orRestraint or to obtain such Requisite Regulatory Approval, as the case may be;
(c) by Atlas:
the Company Board (i) provided that the Company is not then in material breach of any representation, warranty, covenant or other agreement contained herein), if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Parent shall have materially breached or failed to perform any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in each case such Section 6.3(a) or (b), and (B) is incapable of being cured by Parent or is not cured within 30 days of written notice thereof;
(d) by the Parent Board (provided that Parent is not then in material breach of any representation, warranty, covenant or other agreement contained herein), if the Company shall have materially 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 (A) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; (b), and (B) such untruth, inaccuracy, breach is incapable of being cured by the Company or failure to perform is not curable cured within 30 days of written notice thereof;
(e) by the Outside Date; or
(ii) Company Board, at any time prior to the Parent Special Meeting, if the Merger Agreement is terminated Parent Board shall have (provided that, A) failed to include in order the Proxy Statement/Prospectus to terminate the stockholders of Parent its recommendation without modification or qualification that such stockholders approve this Agreement pursuant to this subclause (ii)and the transactions contemplated hereby, Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas failed to reaffirm such recommendation upon the Company's request, (C) subsequently withdrawn such recommendation or ATN (D) modified or qualified such recommendation in a manner adverse to the interests of the Company; and
(f) by the Parent Board, at any time prior to the Company Special Meeting, if the Company Board shall have breached or (A) failed to perform any include in the Proxy Statement/Prospectus to the stockholders of their respective covenants the Company its recommendation without modification or agreements set forth in this Agreement, in each case qualification that such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate stockholders approve this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on transaction contemplated hereby, (B) failed to terminate this Agreement reaffirm such recommendation upon Parent's request, (C) subsequently withdrawn such recommendation or (D) modified or qualified such recommendation in a manner adverse to the other Partiesinterests of Parent.
Appears in 3 contracts
Samples: Merger Agreement (Worldtalk Communications Corp), Merger Agreement (Tumbleweed Communications Corp), Merger Agreement (Tumbleweed Communications Corp)
Termination. This Agreement may be terminated terminated, and the Sale transactions contemplated hereby may be abandoned abandoned, at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub Effective Time, whether prior to or after the Company Stockholder Approval and any termination by Atlas also being an effective termination by ATN):the Parent Stockholder Approval:
(a) by mutual written consent agreement of APL Parent and Atlas, the Company hereto duly authorized by action taken by or on behalf of the APL Board and Atlas’s board their respective Boards of directors, respectively; orDirectors;
(b) by either APL the Company or AtlasParent upon notification to the non-terminating party by the terminating party:
(i) at any time after July 31, 2000 if (A) the Sale Merger shall not have been consummated on or before September 30prior to such date and such failure to consummate the Merger is not caused by a material breach of this Agreement by the terminating party;
(ii) if the Company Stockholder Approval or the Parent Stockholder Approval shall not be obtained by reason of the failure to obtain the requisite vote upon a vote held at a meeting of such stockholders, 2011 or any adjournment thereof, called therefor;
(iii) if any Governmental or Regulatory Authority, the “Outside Date”)taking of action by which is a condition to the obligations of either the Company or Parent to consummate the transactions contemplated hereby, shall have determined not to take such action and all appeals of such determination shall have been taken and have been unsuccessful;
(iv) if the terminating party is not in material breach of its obligations under this Agreement and there has been a material breach of any representation, warranty, covenant or agreement on the part of the non-terminating party set forth in this Agreement such that the conditions in Sections 7.01, 7.02, 8.01 or 8.02 will not be satisfied; provided, however, that, that if such breach is curable by the Sale shall not have occurred by September 30, 2011, non-terminating party and a New Merger Agreement shall have been executedsuch cure is reasonably likely to be completed prior to the date specified in Section 11.01(b)(i), then, for so long as the Outside Date shall become November 30non-terminating party continues to use its reasonable efforts to effect and cure, 2011; and (B) the Party seeking to terminating party may not terminate this Agreement pursuant to this Section 7.1(b)(i11.01(b)(iv);
(v) shall not have breached its obligations in if any material respect under this Agreement in any manner that court of competent jurisdiction or other competent Governmental or Regulatory Authority shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if issued an Order shall have been entered making illegal or otherwise permanently restrainingrestricting, enjoining preventing or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; ornonappealable;
(c) by Atlas:
(i) Parent or the Company if (A) (x) any the Company or its stockholders receive a Superior Offer in connection with which the Board of Directors of the representations or warranties of APL herein shall be untrue or inaccurate on Company exercises the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth rights specified in Section 6.2(a6.02(c) to withhold, withdraw, amend or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise modify its right to do so within thirty days recommendation of the termination of the Merger Agreement)Merger; or
(d) by APL, Parent if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date Company breaches Section 4.03 of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth and Parent is in substantial compliance with its obligations under this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.
Appears in 3 contracts
Samples: Merger Agreement (Galaxy Enterprises Inc /Nv/), Merger Agreement (Netgateway Inc), Merger Agreement (Netgateway Inc)
Termination. This Agreement may be terminated and the Sale Mergers and the other transactions contemplated by this Agreement may be abandoned at any time prior to the Closing Company Merger Effective Time, notwithstanding receipt of the Stockholder Approval (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNexcept as otherwise specified in this Section 9.1):
(a) by mutual written consent of APL each of CCI and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCMOF;
(b) by either APL CCI or AtlasCMOF, upon prior written notice to the other Party:
(i) if (A) the Sale Mergers shall not have been consummated occurred on or before September 3011:59 p.m., 2011 New York City time, on April 8, 2023 (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i9.1(b)(i) shall not have breached its obligations be available to any Party if the failure of such Party to perform or comply in any all material respect under respects with the obligations, covenants or agreements of such Party set forth in this Agreement in any manner that shall have proximately caused been the primary cause of, or resulted in in, the failure of the Sale Mergers to have been be consummated by such date; orthe Outside Date;
(ii) if any Governmental Authority of competent jurisdiction shall have issued an Order shall have been entered permanently restraining, enjoining restraining or otherwise prohibiting the consummation of the Sale transactions contemplated by this Agreement, and such Order shall have become final and non-appealable; provided, provided that the right to terminate this Agreement under this Section 9.1(b)(ii) shall not be available to a Party seeking if the issuance of such final, non-appealable Order was primarily due to the failure of such Party (and, in the case of each of CCI and CMOF, including the failure of the other CCI Parties and the CMOF Parties, respectively) to perform or comply in all material respects with any of its obligations, covenants or agreements under this Agreement; or
(iii) if the Stockholder Approval shall not have been obtained at the CMOF Stockholders Meeting, duly convened therefor or at any adjournment or postponement thereof at which a vote on the approval of the Company Merger was taken; provided, that the right to terminate this Agreement under this Section 9.1(b)(iii) shall not be available to a Party if the failure to receive the Stockholder Approval was primarily due to the failure of a Party to perform or comply in all material respects with any of its obligations, covenants or agreements under this Agreement.
(c) by CMOF, upon prior written notice to CCI:
(i) if a breach of any representation or warranty or failure to perform or comply with any obligation, covenant or agreement on the part of any of the CCI Parties set forth in this Agreement has occurred that would cause any of the conditions set forth in Section 8.1 or Section 8.3 not to be satisfied (a “CCI Terminating Breach”), which breach or failure to perform or comply cannot be cured, or, if capable of cure, has not been cured by the earlier of 30 days following written notice thereof from CMOF to CCI and two Business Days before the Outside Date; provided, however, that CMOF shall not have such right to terminate this Agreement pursuant to this Section 7.1(b)(ii9.1(c)(i) if a CMOF Terminating Breach shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of occurred and be continuing at the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any time CMOF delivers notice of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring election to terminate this Agreement pursuant to this Section 7.1 9.1(c)(i); or
(ii) if, at any time before the Stockholder Approval is obtained, the CMOF Board (or any committee thereof) shall give notice have effected an Adverse Recommendation Change with respect to a Superior Proposal in accordance with the provisions of Section 7.3; provided, however, that this Agreement may not be so terminated unless CMOF has complied in all material respects with Section 7.3 and CMOF has paid the Termination Payment to CCI in full in accordance with Section 9.3 concurrently with the occurrence of such termination and entered into the provisions definitive agreement providing for the implementation of the Superior Proposal, and, in the event that such payment is not concurrently made or the definitive agreement is not concurrently entered into, such termination shall be null and void; or
(iii) if (A) all of the conditions set forth in Section 8.1 and Section 8.2 have been and continue to be satisfied or waived by CCI (other than those conditions that by their nature cannot be satisfied other than at Closing, provided that such conditions to be satisfied at the Closing would be satisfied as of the date of the notice referenced in clause (B) of this Section 7.1 being relied 9.1(c)(iii) if the Closing were to occur on the date of such notice), (B) on or after the date the Closing should have occurred pursuant to Section 2.2, CMOF has delivered written notice to CCI to the effect that all of the conditions set forth in Section 8.1 and Section 8.2 have been satisfied or waived by CCI (other than those conditions that by their nature cannot be satisfied other than at Closing, provided that such conditions to be satisfied at the Closing would be satisfied as of the date of such notice if the Closing were to occur on the date of such notice) and CMOF is prepared to consummate the Closing, and (C) the CCI Parties fail to consummate the Closing within three Business Days after delivery of the notice referenced in the preceding clause (B), and CMOF was ready, willing and able to consummate the Closing during such three Business Day period; or
(d) by CCI, upon prior written notice to CMOF:
(i) if there has been a breach of any representation or warranty or failure to perform or comply with any obligation, covenant or agreement on the part of a CMOF Party set forth in this Agreement has occurred that would cause any of the conditions set forth in Section 8.1 or Section 8.2 not to be satisfied (a “CMOF Terminating Breach”), which breach or failure to perform or comply cannot be cured, or if capable of cure, has not been cured by the earlier of 30 days following written notice thereof from CCI to CMOF and two Business Days before the Outside Date; provided, however, that CCI shall not have such right to terminate this Agreement if a CCI Terminating Breach shall have occurred and be continuing at the time CCI delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(d)(i); or
(ii) if, at any time prior to the other Partiesreceipt of the Stockholder Approval, (A) the CMOF Board (or any committee thereof) has made an Adverse Recommendation Change, (B) CMOF shall have failed to publicly recommend against any tender offer or exchange offer for CMOF Common Stock subject to Regulation 14D under the Exchange Act that constitutes an Acquisition Proposal (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by CMOF’s stockholders) within 10 Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer, (C) at any time prior to the receipt of the Stockholder Approval, the CMOF Board shall have failed to publicly reaffirm the CMOF Board Recommendation within 10 Business Days following the date an Acquisition Proposal shall have been first publicly announced (or if the CMOF Stockholders Meeting is scheduled to be held within 10 Business Days after the date an Acquisition Proposal shall have been publicly announced, as far in advance of the date on which the CMOF Stockholders Meeting is scheduled to be held as is reasonably practicable), (D) CMOF enters into an Alternative Acquisition Agreement, or (E) CMOF shall have breached or failed to comply in any material respect with any of its obligations under Section 7.3.
Appears in 3 contracts
Samples: Merger Agreement (Cottonwood Communities, Inc.), Merger Agreement (Cottonwood Multifamily Opportunity Fund, Inc.), Merger Agreement (Cottonwood Communities, Inc.)
Termination. This Agreement may be terminated and the Sale Merger and the other Transactions may be abandoned at any time prior to the Closing Effective Time (with provided that, in the case of the Company, any termination such action must be authorized by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):a unanimous recommendation of the Special Committee), as follows:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company, if:
(i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale Effective Time shall not have occurred by September 30on or before May 6, 2011, and a New Merger Agreement shall have been executed, then2016 (such date as may be extended in accordance with this Section 8.01(b)(i), the Outside Date shall become November 30“Termination Date”), 2011; and (B) provided that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.01(b)(i) shall not have breached be available to any party if the circumstances described in this Section 8.01(b)(i) are primarily caused by such party’s failure to comply with its obligations in any material respect under this Agreement Agreement; and provided, further, that the Termination Date may be extended by Parent or the Company (by written notice to the other party) to a date which is no later than August 8, 2016 in the event that, on the Termination Date, (x) all of the conditions to Closing (other than those that by their terms are to be satisfied at the Closing) have been satisfied or waived (provided that the conditions to Closing that by their terms are to be satisfied at the Closing would be satisfied as of the Termination Date if the Closing were to occur on the Termination Date), (y) Parent has made a Specified Filing for which it has not received consent or approval for the Merger from the applicable Governmental Authority and (z) the Closing has not occurred pursuant to the proviso in Section 1.02, and following any manner that such extension, the “Termination Date” for all purposes hereunder shall be deemed to be such extended date;
(ii) an Injunction shall have proximately caused or resulted in the failure of the Sale to have been consummated by such dateissued; or
(iiiii) if an Order the Requisite Company Vote is not obtained at the Shareholders’ Meeting or any adjournment thereof at which this Agreement has been voted upon;
(c) by the Company if there shall have been entered permanently restraininga breach of any representation, enjoining warranty, covenant or otherwise prohibiting agreement on the consummation part of Parent and Merger Sub set forth in this Agreement (including a failure by Parent and Merger Sub to complete the Sale Closing subject to and such Order in accordance with Section 1.02), or if any representation or warranty of Parent and Merger Sub shall have become final and non-appealableuntrue, provided in either case such that the Party seeking conditions set forth in Section 7.03(a) or Section 7.03(b) would not be satisfied; provided, however, that, the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i8.01(c) if (A) (x) any the Company is then in material breach of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement)hereunder; or
(d) by APLParent:
(i) if there shall have been a breach of any representation, if (i)(A) any warranty, covenant or agreement on the part of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in each either case such that any condition the conditions set forth in Section 6.3(a7.02(a) or 6.3(bSection 7.02(b) would not be satisfied at Closingsatisfied; provided, and (ii) such untruthhowever, inaccuracythat, breach or failure to perform is Parent shall not curable by have the Outside Date. The Party desiring right to terminate this Agreement pursuant to this Section 7.1 8.01(d)(i) if either Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or other agreements hereunder; or
(ii) if (A) there shall give notice have been a Change in the Company Recommendation, (B) the Company Board shall have adopted, approved, endorsed or recommended, or shall have proposed publicly to adopt, approve, endorse or recommend, an Acquisition Proposal, (C) the Company or any of its Subsidiaries shall have consummated or entered into any letter of intent, Contract, commitment or obligation with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in compliance with Section 6.04(b)), (D) the Company shall have failed to include the Company Recommendation in the Proxy Statement, or (E) a tender offer or exchange offer by a Third Party for any Ordinary Shares representing ten percent (10%) or more of the outstanding Ordinary Shares is commenced, and the Company Board fails to recommend against acceptance of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement tender offer or exchange offer by its shareholders (including by taking no position with respect to the other Partiesacceptance of such tender offer or exchange offer by its shareholders) within ten (10) Business Days after the public announcement of such tender offer or exchange offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Ali YK Investment Holding LTD), Merger Agreement (Youku Tudou Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL or AtlasThis Agreement shall terminate upon:
(i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) 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 The written agreement of the Sale to have been consummated by such dateParties; or
(ii) if an Order shall have been entered permanently restrainingThe dissolution, enjoining liquidation or otherwise prohibiting the consummation winding up of the Sale Company;
(iii) Except as provided in Section 14.9(c), the rights and obligations of a Shareholder hereunder automatically shall terminate from and as of the time such Order Shareholder, directly or indirectly, no longer owns or holds any Shares. Provided further in addition to specifically provided in each Section the rights of any Party under Section 4, Section 5 and Section 6 shall have become final terminate automatically from and as of the time (X) in the case of the Network18 Group, the Network18 Group and the employees of the Company own or hold in the aggregate less than 10% of the total issued and paid up Equity Share capital of the Company on a fully diluted basis and (Y) in the case of SAIF, SAIF owns or holds less than 5% of the total issued and paid up Equity Share capital of the Company on a fully diluted basis (Z) in the case of GSHS, GSHS owns or holds less than 5% of the total issued and paid up Equity Share capital of the Company on a fully diluted basis.
(b) This Agreement may be terminated by the non-appealabledefaulting Party(ies) (“Non-Defaulting Party”) if any of the Parties (other than the Company) (the “Defaulting Party”) have committed breach of any of their representations and warranties, provided that the Party seeking to terminate undertakings, obligations and/or covenants in this Agreement pursuant or default in compliance with the terms and conditions of this Agreement which, if curable, is not cured within 45 calendar days of notice thereof being given to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; orthe Defaulting Party.
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date The termination of this Agreement shall not discharge, affect or shall thereafter become untrue otherwise modify the rights and obligations of the Parties established or inaccurateincurred prior to such termination. Notwithstanding anything to the contrary, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth the provisions in this AgreementAgreement relating to Indemnification, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at ClosingConfidentiality; Arbitration; Notices; Governing Law and (B) such untruthother representations, inaccuracywarranties, breach or failure covenants and obligations which by their nature are intended to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of survive shall survive the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.
Appears in 3 contracts
Samples: Shareholders Agreement (Nw18 HSN Holdings PLC), Shareholder Agreement (Nw18 HSN Holdings PLC), Shareholders Agreement (Tv18 HSN Holdings LTD)
Termination. This Agreement may be terminated and the Sale may be transactions contemplated hereby abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time:
(a) by the mutual written consent of APL SXE and Atlas, AMID duly authorized by action each of the APL SXE GP Board and Atlas’s board of directorsthe AMID GP Board, respectively; or.
(b) by either APL of SXE or AtlasAMID:
(i) if (A) the Sale Closing shall not have been consummated on or before September 30June 1, 2011 2018 (the “Outside Date”); provided, that the right to terminate this Agreement under this Section 7.1(b)(i) shall not be available (x) to a Party if the inability to satisfy such condition was due to the failure of such party to perform any of its obligations under this Agreement or (y) to a Party if the other Party has filed (and is then pursuing) an action seeking specific performance as permitted by Section 8.8;
(ii) if any Restraint having the effect set forth in Section 6.1(c) shall be in effect and shall have become final and nonappealable; provided, however, that, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a Party if such Restraint was due to the failure of such Party to perform any of its obligations under this Agreement; or
(iii) if the Sale SXE Unitholders Meeting shall have concluded and the SXE Unitholder Approval shall not have occurred been obtained; or
(c) by September 30AMID:
(i) if a SXE Adverse Recommendation Change shall have occurred;
(ii) if SXE shall have breached or failed to perform any of its representations, 2011warranties, and a New Merger covenants or agreements set forth in this Agreement (or if any of the representations or warranties of SXE set forth in this Agreement shall have been executedfail to be true), then, which breach or failure (A) would (if it occurred or was continuing as of the Outside Date shall become November 30, 2011; Closing Date) give rise to the failure of a condition set forth in Section 6.2(a) or (b) and (B) is incapable of being cured, or is not cured by SXE within 30 days following receipt of written notice from AMID of such breach or failure; provided that AMID shall not have the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(c) shall not have breached if AMID is then in breach of any of its obligations representations, warranties, covenants or agreements contained in any material respect under this Agreement in any manner that shall have proximately caused Agreement, which breach or resulted in failure would (if it occurred or was continuing as of the Closing Date) give rise to the failure of the Sale to have been consummated by such datea condition set forth in Section 6.3(a) or (b); or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(cd) by Atlas:
(i) SXE if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL AMID shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement (or if any of the representations or warranties of AMID set forth in this Agreement shall fail to be true), which breach or failure (A) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 6.3(a) or (b) and (B) is incapable of being cured, or is not cured, by AMID within 30 days following receipt of written notice from SXE of such breach or failure; provided, that SXE shall not have the right to terminate this Agreement pursuant to this Section 7.1(d) if SXE is then in breach of any of the first three sentences of Section 5.1(b) or Section 5.3 or in breach of any of its other representations, warranties, covenants or agreements contained in this Agreement, in each case such that any which breach or failure would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; orb).
(iie) if In addition to the Merger Agreement is terminated (provided thatforegoing, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days shall be automatically terminated without further action of any Party upon the termination of the Merger Holdings Contribution Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Southcross Energy Partners, L.P.), Merger Agreement (American Midstream Partners, LP)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time:
(a) by mutual written consent of APL ALC and AtlasHCI in a written instrument, by action if the Board of the APL Board and Atlas’s board Directors of directors, respectively; oreach so determines;
(b) by either APL the Board of Directors of ALC or Atlas:the Board of Directors of HCI if a Governmental Entity of competent jurisdiction shall have issued a final nonappealable order enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement;
(ic) by either the Board of Directors of ALC or the Board of Directors of HCI if (A) the Sale Merger shall not have been consummated on or before September 30December 31, 2011 1997 (the “Outside Date”); provided, however, thator, if at such date the Sale Merger shall not have occurred by September 30, 2011been consummated as a result of the failure of the condition set forth in Section 7.1(d) hereof to be satisfied, and a New Merger Agreement such condition shall not have failed to have been executedsatisfied by reason of the enactment or promulgation of any statute, thenrule or regulation which prohibits, restricts or makes illegal consummation of the Merger, the Outside Date shall become November 30, 2011; earlier of (i) the date on which such condition is satisfied and (Bii) December 31, 1997) unless the Party failure of the Closing to occur by such date shall be due to the failure of 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 perform or resulted in observe the failure covenants and agreements of the Sale to have been consummated by such date; orparty set forth herein;
(iid) if an Order shall have been entered permanently restraining, enjoining by either the Board of Directors of ALC or otherwise prohibiting the consummation Board of the Sale and such Order shall have become final and non-appealable, Directors of HCI (provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(iiterminating party is not then in material breach of any representation, warranty, covenant or other agreement contained herein) if the other party shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
breached (i) if any of the covenants or agreements made by such other party herein or (A) (xii) any of the representations or warranties of APL herein shall be untrue or inaccurate on made by such other party herein, and in either case, such breach (x) is not cured within thirty days following written notice to the date of this Agreement or shall thereafter become untrue or inaccurateparty committing such breach, or which breach, by its nature, cannot be cured prior to the Closing and (y) APL would entitle the non-breaching party not to consummate the transactions contemplated hereby under Article VII hereof; and
(e) by either the Board of Directors of ALC or the Board of Directors of HCI if any approval of the stockholders of HCI contemplated by this Agreement shall not have breached or failed to perform any been obtained by reason of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or the failure to perform is not curable by obtain the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days required vote at a duly held meeting of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) stockholders or at any of the representations adjournment or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiespostponement thereof.
Appears in 3 contracts
Samples: Merger Agreement (LTC Properties Inc), Merger Agreement (Assisted Living Concepts Inc), Merger Agreement (LTC Properties Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time on or prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Date:
(a) by With the mutual written consent of APL and Atlas, by action each of the APL Board Company, Parent and Atlas’s board of directors, respectively; orMerger Sub;
(b) by By either APL the Company or Atlas:
(i) Parent, if (A) the Sale Closing of the Merger shall not have been consummated occurred on or before September 30, 2011 2013 (the “Outside Termination Date”); provided, however, that, if if, as of the Sale shall not have occurred by September 30Termination Date, 2011, and a New Merger all conditions to this Agreement shall have been executedsatisfied or waived (other than those that are satisfied by action taken at the Closing), thenother than the conditions set forth in Section 6.3 and Section 7.3, then the Outside Company may extend the Termination Date shall become November by no more than thirty (30, 2011; and (B) 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 Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; orcalendar days;
(c) by Atlas:
(i) By the Company, if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Parent shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, which breach or failure to perform (A) would give rise, if occurring or continuing at the Effective Time, to the failure of a condition set forth in Article VII and (B) has not been or is not curable incapable of being cured by Parent prior to the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days earlier of the termination (x) Termination Date and (y) thirtieth (30th) calendar day after its receipt of written notice thereof from the Merger Agreement)Company; or77
(d) by APLBy Parent, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Company shall have breached or failed to perform any of their respective its representations, warranties, covenants or other agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, which breach or failure to perform (A) would give rise, if occurring or continuing at the Effective Time, to the failure of a condition set forth in Article VI and (B) has not been or is not curable incapable of being cured by the Outside DateCompany prior to the earlier of the (x) Termination Date and (y) thirtieth (30th) calendar day after its receipt of written notice thereof from Parent;
(e) By either the Company or Parent, if (i) there shall be any Law that makes consummation of the Merger illegal or (ii) any Governmental Authority having competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger, and such Order or other action shall have become final and nonappealable; or
(f) By Parent, if a copy of the Stockholder Consent has not been delivered to Parent within twenty-four (24) hours of mutual execution of this Agreement. The Party desiring Notwithstanding anything else contained in this Agreement, the right to terminate this Agreement pursuant to under this Section 7.1 8.1 shall give notice not be available to any party whose breach of such termination and its (or in the provisions case of this Section 7.1 being relied on the Company, its or the Representative’s) representations or warranties set forth herein or whose failure to terminate fulfill its obligations or to comply with its covenants under this Agreement has been the primary cause of, or primarily resulted in, the failure to satisfy any condition to the obligations of the other Partiesparty hereunder.
Appears in 3 contracts
Samples: Acquisition Agreement, Acquisition Agreement, Merger Agreement (Cardinal Health Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing Exchange Effective Time, whether before or after receipt of the Required Company Shareholder Approvals (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNexcept as provided below):
(a) by mutual written consent of APL Parent and Atlas, by action the Company (in the case of the APL Board and Atlas’s board Company, acting on the recommendation of directors, respectively; orthe Special Committee);
(b) by either APL Parent or Atlas:the Company (in the case of the Company, acting on the recommendation of the Special Committee):
(i) if (A) the Sale shall Reincorporation Merger and the Share Exchange are not have been consummated on or before September 30December 16, 2011 2020 (the “Outside End Date”); provided, however, that, that if the Sale shall condition to Closing set forth in Section 9.01(d) has not been satisfied or waived on or prior to such date but all other conditions to Closing set forth in Article VIII have occurred been satisfied or waived (except for those conditions that by September 30their nature are to be satisfied at the Closing), 2011the End Date may be extended by either the Company or Parent to a date not beyond March 16, 2021, and a New Merger Agreement such date, as so extended, shall have been executedbe the “End Date”; provided further, thenhowever, that the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i10.01(b)(i) shall not have breached its obligations be available to any party whose breach of a representation, warranty or covenant in any material respect under this Agreement in any manner that shall have proximately caused has been a principal cause of or resulted in the failure of the Sale Transactions to have been be consummated by such date; oron or before the End Date;
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of condition set forth in Section 9.01(e) is not satisfied and the Sale and Restraint giving rise to such Order non-satisfaction shall have become final and non-appealable, nonappealable; provided that the Party seeking terminating party shall have complied in all material respects with its obligations to use its reasonable best efforts pursuant to Section 8.02; or
(iii) if either of the Required Company Shareholder Approvals are not obtained at the Company Shareholders Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on such matters was taken;
(c) by Parent, if the Company Entities breach or fail to perform any of their covenants or agreements contained in this Agreement, or if any of the representations or warranties of the Company Entities contained herein fails to be true and correct, which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 9.02(a) or 9.02(b) and (ii) is not reasonably capable of being cured by the Company Entities by the End Date or has not been cured by the Company Entities within 30 days after the giving of written notice to the Company of such breach (provided that the Parent Entities are not then in material breach of any covenant or agreement contained in this Agreement and no representation or warranty of the Parent Entities contained herein then fails to be true and correct such that the conditions set forth in Section 9.03(a) or 9.03(b) could not then be satisfied);
(d) by Parent, in the event that a Company Adverse Recommendation Change has occurred; provided, however, that Parent will not have the right to terminate this Agreement pursuant to this Section 7.1(b)(ii10.01(d) if both of the Required Company Shareholder Approvals shall have complied with its obligations pursuant to Section 5.1 with respect to such Orderbeen obtained; or
(ce) by Atlas:
the Company (i) acting on the recommendation of the Special Committee), if (A) (x) the Parent Entities breach or fail to perform any of their covenants or agreements contained in this Agreement, or if any of the representations or warranties of APL the Parent Entities contained herein shall fails to be untrue true and correct, which breach or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed failure to perform any (i) would give rise to the failure of its covenants or agreements set forth in this Agreement, in each case such that any a condition set forth in Section 6.2(a9.03(a) or 6.2(b9.03(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if is not reasonably capable of being cured by the Merger Agreement is terminated Parent Entities by the End Date or has not been cured by the Parent Entities within 30 days after the giving of written notice to Parent of such breach (provided that, that the Company Entities are not then in order to terminate material breach of any covenant or agreement contained in this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days and no representation or warranty of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas Company Entities contained herein shall then fails to be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case true and correct such that any condition the conditions set forth in Section 6.3(a9.02(a) or 6.3(b9.02(b) would could not then be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Datesatisfied). The Party party desiring to terminate this Agreement pursuant to clauses (b), (c), (d) or (e) of this Section 7.1 10.01 shall give written notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparties in accordance with Section 11.02, specifying the provision of this Agreement pursuant to which such termination is effected.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Brookfield Renewable Partners L.P.), Agreement and Plan of Reorganization (TerraForm Power, Inc.), Agreement and Plan of Reorganization (TerraForm Power, Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, whether before or after adoption of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the Required Stockholder Vote:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlas:
(i) the Company, if (A) the Sale Merger shall not have been consummated by on or before September 30December 31, 2011 2012 (the “"Outside Date”"); provided, however, that, that the Outside Date may be extended for a period not to exceed one hundred eighty (180) days by either party by written notice to the other party if the Sale Merger shall not have occurred by September 30, 2011, and been consummated as a New Merger Agreement shall result of any conditions set forth in Section 6.1(b) failing to have been executed, then, the Outside Date shall become November 30, 2011; satisfied and (Bi) the Party seeking extending party reasonably believes that the relevant approvals will be obtained during such extension period and (ii) each of the other conditions to the consummation of the Merger set forth in Article VI has been satisfied or waived or remains reasonably capable of satisfaction; provided further, that the right to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(b) shall not have breached its obligations in any material respect under be available to the party seeking to terminate this Agreement in any manner that shall have proximately caused if such party's breach of this Agreement has been the cause of, or resulted in results in, the failure of the Sale Effective Time to occur;
(c) by Parent or the Company, if the Required Stockholder Vote shall not have been consummated obtained at the Company Stockholders' Meeting, or at any adjournment or postponement thereof, at which a final vote thereon was taken, provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 7.1(c) if the failure to obtain the Required Stockholder Vote is attributable to a failure on the part of such party to perform any material obligation required to be performed by such date; orparty.
(iid) by either Parent or the Company, upon written notice to the other party, if an Order a court of competent jurisdiction or other Governmental Body shall have been entered issued a final and nonappealable order, writ, injunction, judgment, decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealableMerger; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii7.1(d) shall have complied with not be available to a party if the issuance of such final, non-appealable Restraint is attributable to a failure of such party to perform in any material respect its obligations pursuant to Section 5.1 with respect to such Order; orunder this Agreement;
(ce) by Atlas:Parent, upon written notice to the Company, if a Triggering Event shall have occurred;
(if) if by Parent (A) (x) provided it is not then in material breach of any of its obligations under this Agreement), if there is any continuing inaccuracy in the representations or and warranties of APL herein shall be untrue or inaccurate on the date of Company set forth in this Agreement or shall thereafter become untrue or inaccurateAgreement, or (y) APL shall have breached or failed the Company is then failing to perform any of its covenants or other agreements set forth in this Agreement, in each either case (i) such that any condition the conditions set forth in Section 6.2(a6.3(a) or 6.2(b) Section 6.3(b), as applicable, would not be satisfied at Closing; as of the time of such termination and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if such inaccuracy or breach is not cured within thirty (30) days after the Merger Agreement is terminated Company's receipt of notice thereof;
(g) by the Company (provided that, it is not then in order to terminate material breach of any of its obligations under this Agreement pursuant to this subclause (iiAgreement), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) there is any of continuing inaccuracy in the representations or and warranties of Atlas herein shall be untrue or inaccurate on the date of Parent, Merger Sub and Merger LLC set forth in this Agreement or shall thereafter become untrue or inaccurateAgreement, or (B) Atlas Parent, Merger Sub or ATN shall have breached or failed Merger LLC are then failing to perform any of their respective covenants or other agreements set forth in this Agreement, in each either case (i) such that any condition the conditions set forth in Section 6.3(a6.2(a) or 6.3(b) Section 6.2(b), as applicable, would not be satisfied at Closing, as of the time of such termination and (ii) such untruth, inaccuracy, inaccuracy or breach or failure to perform is not curable cured within thirty (30) days after Parent's receipt of notice thereof; or
(h) by the Outside Date. The Party desiring Company, upon written notice to terminate this Parent, if, at any time prior to the time the Required Stockholder Vote is obtained, the Company Board determines to enter into a definitive Company Acquisition Agreement pursuant to this Section 7.1 providing for a Superior Proposal, and shall give notice of concurrently with such termination enter into the Company Acquisition Agreement and pay to Parent the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesTermination Fee.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (SRS Labs Inc), Merger Agreement (SRS Labs Inc), Merger Agreement (Dts, Inc.)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing Effective Time (with notwithstanding any termination approval of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNthe stockholders of the Company):
(a) by mutual written consent of APL and Atlas, by action agreement of the APL Board Company and Atlas’s board of directors, respectively; orParent;
(b) by either APL the Company or AtlasParent, if:
(i) if (A) the Sale shall Merger has not have been consummated on or before September June 30, 2011 (the “Outside End Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i11.01(b)(i) shall not have breached its obligations in be available to any material respect under party whose breach of any provision of this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Merger to have been be consummated by such datetime; or
(ii) if an Order there shall have been entered permanently restraining, enjoining or otherwise prohibiting the be any Applicable Law that (A) makes consummation of the Sale Merger illegal or otherwise prohibited or (B) enjoins the Company or Parent from consummating the Merger and such Order enjoinment 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 5.1 with respect to such Ordernonappealable; or
(c) by AtlasParent, if:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurateas permitted by Section 7.03, or (y) APL an Adverse Recommendation Change shall have breached occurred or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure the Company Board shall have failed to perform is not curable publicly confirm the Company Board Recommendation within five Business Days of a written request by the Outside DateParent that it do so; or
(ii) if a breach of any representation or warranty or failure to perform any covenant or agreement on the Merger Agreement is terminated (provided that, part of the Company set forth in order to terminate this Agreement pursuant shall have occurred that would cause the condition set forth in Section 10.02(b) not to this subclause (ii)be satisfied, Atlas must exercise its right to do so within thirty days and such condition is incapable of being satisfied by the termination of the Merger Agreement)End Date; or
(d) by APLthe Company if:
(i) the Company Board authorizes the Company, if subject to complying with the terms of this Agreement, to enter into a written agreement concerning a Superior Proposal; provided, that the Company shall have paid any amounts due pursuant to Section 12.04(b) in accordance with the terms, and at the times, specified therein; and provided, further, that, prior to any such termination, (i)(AA) any the Company notifies Parent in writing of its intention to terminate this Agreement and to enter into a binding written agreement concerning an Acquisition Proposal that constitutes a Superior Proposal, attaching the most current version of such agreement (or a description of all material terms and conditions thereof), and (B) Parent does not make, within four days of receipt of such written notification, an offer that is at least as favorable to the stockholders of the representations or warranties of Atlas herein Company as such Superior Proposal (it being understood that the Company shall be untrue or inaccurate on the date of not terminate this Agreement or enter into any such binding agreement during such four day period, and that any amendment to the financial terms or other material terms of such Superior Proposal shall thereafter become untrue require a new written notification from the Company and an additional three day period); or
(ii) a breach of any representation or inaccurate, warranty or (B) Atlas or ATN shall have breached or failed failure to perform any covenant or agreement on the part of their respective covenants Parent or agreements Merger Subsidiary set forth in this Agreement, in each case such Agreement shall have occurred that any would cause the condition set forth in Section 6.3(a10.03(b) or 6.3(b) would not to be satisfied at Closingsatisfied, and (ii) such untruth, inaccuracy, breach or failure to perform condition is not curable incapable of being satisfied by the Outside End Date. The Party party desiring to terminate this Agreement pursuant to this Section 7.1 11.01 (other than pursuant to Section 11.01(a)) shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparty.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Hudson Holding Corp), Merger Agreement (Hudson Holding Corp), Merger Agreement (Rodman & Renshaw Capital Group, Inc.)
Termination. This Notwithstanding anything herein to the ----------- contrary, this Agreement may be terminated and the Sale Merger contemplated herein may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether before or after stockholder approval of the Company thereof:
(a) by By the mutual written consent of APL the Parent and Atlas, the Company by action of the APL Board and Atlas’s their respective board of directors, respectively; or.
(b) by By either APL of the Company or AtlasParent:
(i) if any Governmental Entity shall have issued an order, decree or ruling or taken any other action 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 non-appealable; provided, that, the party seeking to terminate this -------- Agreement shall have used all reasonable efforts to challenge such order, decree, ruling or other action;
(Aii) if the Sale Offer shall have expired, terminated or been withdrawn pursuant to its terms without any Shares being purchased therein, provided, 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 obligation under this Agreement has been the cause of, or has resulted in, the failure of the Purchaser to purchase Shares in the Offer; or
(iii) if the Offer shall not have been consummated on or before September 30June 25, 2011 2001, (the “"Outside Date”"), provided, that, a party may not -------- terminate the Agreement pursuant to this Section 7.1(b)(iii) if its failure to perform any of its obligations under this Agreement results in the failure of the Offer to be so consummated by such time;
(c) By the Company:
(i) if Parent, the Purchaser or any of their affiliates shall have failed to commence the Offer on or prior to ten (10) business days following the date of the initial public announcement of the Offer; provided, however, that, if -------- that the Sale shall Company may not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(c)(i) shall not have breached its obligations if the Company is in any material respect under breach of this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; orAgreement;
(ii) if an Order shall have been entered permanently restrainingconcurrently or immediately following such termination it enters into a definitive agreement providing for a Superior Proposal in compliance with this Agreement, enjoining provided, that, prior thereto or otherwise prohibiting simultaneously therewith the consummation of Company has paid the Sale and such Order shall have become final and non-appealable, provided that the Party seeking Termination Fee to terminate this Agreement pursuant to this Parent in accordance with Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order7.3; or
(c) by Atlas:
(iiii) if (A) (x) any of the representations or and warranties of APL herein Parent set forth in this Agreement that are qualified by materiality shall not be untrue true and correct in any respect, or inaccurate on if the representations and warranties of Parent set forth in this Agreement that are not so qualified shall not be true and correct in all material respects, in each case as of the date of this Agreement or shall thereafter become untrue or inaccurateand as of the Expiration Date as if made on such date, or (y) APL either Parent or Purchaser shall have breached or failed in any material respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it, which inaccuracy or breach cannot be cured or has not been cured within one business day prior to the Expiration Date, except, in the case of its covenants the failure of any representation or agreements set forth in warranty, for changes specifically permitted by this Agreement, in each case such and for those representations and warranties that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; address matters only as of a particular date which are true and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice correct as of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesdate.
Appears in 3 contracts
Samples: Merger Agreement (Universal Music Group Inc), Merger Agreement (Emusic Com Inc), Merger Agreement (Emusic Com Inc)
Termination. This Agreement may be terminated and the Sale Offer and Merger may be abandoned at any time prior to the Closing (with any termination Effective Time, whether prior to or after the approval of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the stockholders of the Company or Purchaser, as follows:
(a) subject to Section 1.3(c), by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company:
(i) if (Ax) as a result of the Sale failure of any of the Offer conditions set forth in Annex I the Offer shall have terminated or expired in accordance with its terms without Purchaser having accepted for payment any shares of Company Common Stock pursuant to the Offer or (y) Purchaser shall not have been consummated accepted for payment any shares of Company Common Stock pursuant to the Offer on or before September 3025, 2011 2005 (the “Outside Date”); provided, however, that, if that the Sale right to terminate this Agreement pursuant to this Section 9.1(b)(i) shall not have occurred by September 30be available to any party whose failure to fulfill any obligations under this Agreement has been a principal cause of or resulted in the failure of the Offer to be consummated on or before the Outside Date;
(ii) if any Governmental Entity issues a Judgment or takes any other action permanently enjoining, 2011restraining or otherwise prohibiting the acceptance for payment of, or payment for, any shares of Company Common Stock pursuant to the Offer or the Merger and a New Merger Agreement such Judgment or other action shall have been executedbecome final and nonappealable; provided, thenhowever, that the Outside Date shall become November 30, 2011; and (B) the Party party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i9.1(b)(ii) shall not have breached its obligations in any material respect under this Agreement in any manner that shall have proximately caused used commercially reasonable efforts to remove or resulted in the failure of the Sale to have been consummated by lift such dateJudgment; or
(iiiii) if, as of the first expiration date of the Offer after June 30, 2005 (if an Order any), such party reasonably determines that the HSR Condition, the Exon-Fxxxxx Condition or the DSS Condition cannot be satisfied prior to the Outside Date, provided that no Acquisition Proposal shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation made and all of the Sale and other conditions set forth in Annex I are satisfied or are reasonably capable of being satisfied on such Order shall have become final and non-appealableexpiration date; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii9.1(b)(iii) shall have complied with its not be available to any party whose failure to fulfill any obligations pursuant under this Agreement has been a principal cause of or resulted in the failure of the Offer to Section 5.1 with respect to be consummated on or before such Order; orexpiration date;
(c) by AtlasParent prior to the purchase of shares of Company Common Stock pursuant to the Offer in the event of:
(i) if (A) (x) any a failure of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any a condition set forth in Section 6.2(aparagraphs (i), (vi)(E) or 6.2(b(vi)(F) would of Annex I; provided, however, solely in the case where such failure of a condition set forth in paragraphs (vi)(E) or (vi)(F) of Annex I is the result of any inaccuracy or non-willful breach of a representation, warranty, covenant or agreement that is reasonably capable of being cured within ten (10) days, Parent may not be satisfied at Closing; terminate pursuant to this Section 9.1(c)(i) if each condition set forth in paragraphs (i), (vi)(E) and (Bvi)(F) of Annex I shall have been fully satisfied within ten (10) days after the giving of written notice to Company of such untruth, inaccuracy, breach inaccuracy or failure to perform is not curable by the Outside Datebreach; or
(ii) if (x) a Withdrawal of Recommendation, or (y) a breach by the Merger Agreement is terminated Company of Section 6.2; or
(provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement)iii) a Material Adverse Effect; or
(d) by APLthe Company, prior to the purchase by Purchaser of any shares of Company Common Stock pursuant to the Offer, if (i)(A) any of the representations Parent or warranties of Atlas herein shall be untrue Purchaser breaches or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed fails to perform in any material respect any of their respective representations, warranties or covenants or agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, which breach or failure to perform materially impairs Parent’s and Purchaser’s ability to consummate the Offer or the Merger and which breach or failure to perform cannot be or has not been cured within ten (10) days after the giving of written notice to Parent of such breach (provided that the Company is not curable by the Outside Date. The Party desiring to terminate then in material breach of any representation, warranty or covenant contained in this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesAgreement).
Appears in 3 contracts
Samples: Merger Agreement (Pec Solutions Inc), Merger Agreement (Nortel Networks Inc.), Merger Agreement (Nortel Networks LTD)
Termination. 12.1 This Agreement may be terminated shall apply until, and shall terminate automatically upon, the Sale may be abandoned at any time prior earliest to occur of the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):following events:
(a) by mutual written consent of APL and Atlasthe Target stated in writing prior to entering into a Merger Agreement that it will not proceed with the Proposed Transaction and, by action in the unanimous opinion of the APL Board and Atlas’s board Investors, there being no reasonable prospect of directors, respectively; orthe Proposed Transaction (or substantially similar transaction) being recommenced within three (3) months of such decision;
(b) a Merger Agreement has not been fully executed and delivered by either APL a Holding Vehicle and its applicable Affiliates, on the one hand, and the Target or Atlas:
an applicable Affiliate thereof, on the other hand, within three (i3) if months (Aor such other period as may be agreed in writing among the Investors) from the Sale shall not have been consummated on or before September 30, 2011 date of this Agreement (the “Outside Date”);
(c) the Merger Agreement is terminated in accordance with its terms;
(d) the date upon which (i) ONE delivers written notice that it is terminating the ONE ECL in accordance with the terms thereof or (ii) any Investor delivers written notice prior to the earlier of (x) 30 days from the date hereof and (y) entry into the Merger Agreement that it has determined, on the advice of its outside tax advisors, that it is not feasible to structure the Proposed Transaction so as to qualify for tax free or tax deferred treatment with respect to the Rollover Equity or so as to otherwise avoid material adverse tax consequences to that Investor;
(e) the occurrence of the Closing; or
(f) the Majority Investors unanimously agree in writing to terminate this Agreement; (the “Termination Date”).
12.2 If this Agreement is terminated in accordance with this Section 12, then the Surviving Provisions will survive such termination; provided, however, that, that if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) 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 Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 is terminated pursuant to Section 5.1 12.1(e), only the last sentence of Section 2.2 and the terms of Section 3, Section 7, Section 10.1, Section 11 and this Section 12.2 (and any related definitions) shall survive in accordance with respect to the terms of such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date Sections until fully performed. The termination of this Agreement shall not prejudice any rights, liabilities or shall thereafter become untrue or inaccurate, or (y) APL shall obligations that have breached or failed accrued prior to perform any such termination. Following termination of its covenants or agreements set forth in this Agreement, in each case such no Investor, the Consortium or Bidco shall incur any further Investor Expenses or Consortium Expenses that any condition set forth in Section 6.2(a) other Investor would be required to contribute to or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesreimburse.
Appears in 3 contracts
Samples: Joint Bidding Agreement (Fairfax Financial Holdings LTD/ Can), Joint Bidding Agreement (Washington Dennis R), Joint Bidding Agreement (Sokol David L)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing Effective Time (with notwithstanding any termination approval of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNthe stockholders of the Company):
(a) by mutual written consent of APL and Atlas, by action agreement of the APL Board Company and Atlas’s board of directors, respectively; orParent;
(b) by either APL the Company or AtlasParent, if:
(i) if (A) the Sale shall Merger has not have been consummated on or before September 30December 31, 2011 2007 (the “Outside End Date”); provided, however, that, if provided that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i10.01(b)(i) shall not have breached its obligations in be available to any material respect under party whose breach of any provision of this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Merger to have been be consummated by such date; ortime;
(ii) if an Order there shall have been entered permanently restraining, enjoining or otherwise prohibiting the be any Applicable Law that (A) makes consummation of the Sale Merger illegal or otherwise prohibited or (B) enjoins the Company or Parent from consummating the Merger and such Order enjoinment shall have become final and non-appealablenonappealable; or
(iii) at the Company Stockholder Meeting (including any adjournment or postponement thereof), provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) Company Stockholder Approval shall not have complied with its obligations pursuant to Section 5.1 with respect to such Orderbeen obtained; or
(c) by AtlasParent, if:
(i) if (A) as permitted by Section 6.03, an Adverse Recommendation Change shall have occurred or (xB) any the Board of Directors of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached failed to publicly confirm the Company Board Recommendation within ten Business Days of a written request made by Parent following an Acquisition Proposal that it do so;
(ii) a breach of any representation or failed warranty or failure to perform any covenant or agreement on the part of its covenants or agreements the Company set forth in this Agreement, in each case such Agreement shall have occurred that any would cause the condition set forth in Section 6.2(a9.02(a) or 6.2(b) would not to be satisfied, and such condition is incapable of being satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside End Date; or
(iiiii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise Company shall have willfully and materially breached any of its right to do so within thirty days of the termination of the Merger Agreement)obligations under Section 6.02 or Section 6.03; or
(d) by APL, if the Company if:
(i)(Ai) any the Board of Directors of the representations Company authorizes the Company, subject to complying with the terms of this Agreement, to enter into a written agreement concerning a Superior Proposal; provided that the Company shall have paid any amounts due pursuant to Section 11.04(b) in accordance with the terms, and at the times, specified therein; and provided, further, that, prior to any such termination, (A) the Company notifies Parent in writing of its intention to terminate this Agreement and to enter into a binding written agreement concerning an Acquisition Proposal that constitutes a Superior Proposal, attaching the most current version of such agreement (or warranties a description of Atlas herein all material terms and conditions thereof), and (B) Parent does not make, within five Business Days of receipt of such written notification, an offer that is at least as favorable to the stockholders of the Company as such Superior Proposal (it being understood that the Company shall be untrue or inaccurate on the date of not terminate this Agreement or enter into any such binding agreement during such five Business Day period, and that any amendment to the financial terms or other material terms of such Superior Proposal shall thereafter become untrue require a new written notification from the Company and an additional three Business Day period); or
(ii) a breach of any representation or inaccurate, warranty or (B) Atlas or ATN shall have breached or failed failure to perform any covenant or agreement on the part of their respective covenants Parent or agreements Merger Subsidiary set forth in this Agreement, in each case such Agreement shall have occurred that any would cause the condition set forth in Section 6.3(a9.03(a) or 6.3(bSection 9.03(b) would not to be satisfied at Closingsatisfied, and (ii) such untruth, inaccuracy, breach or failure to perform condition is not curable incapable of being satisfied by the Outside End Date. The Party party desiring to terminate this Agreement pursuant to this Section 7.1 10.01 (other than pursuant to Section 10.01(a)) shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparty.
Appears in 3 contracts
Samples: Merger Agreement (Playtex Products Inc), Merger Agreement (Energizer Holdings Inc), Merger Agreement (Energizer Holdings Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing Effective Time, whether before or after the receipt of the Requisite Stockholder Approval (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):except as provided in this Agreement), as follows:
(a) by mutual written consent agreement of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlas:
(i) the Company if (A) any Restraint has become final and non-appealable, except that the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(b) shall will not have be available to any Party that has materially breached its obligations in any material respect under this Agreement in any manner that shall have proximately caused and such breach has been the primary cause of or primarily resulted in the final non-appealable Restraint;
(c) by either Parent or the Company if the Effective Time has not occurred by 11:59 p.m. on December 20, 2023, (the “Termination Date”); provided, that in the event that at the Termination Date, all of the conditions in Article VII other than Section 7.1(b) or Section 7.1(c) (to the extent that the failure of the Sale such condition arises from or relates to Antitrust Laws) have been consummated satisfied (except for those conditions that by such date; or
(iitheir nature are to be satisfied at the Closing) if an Order shall or have been entered permanently restrainingirrevocably waived by Parent and Merger Sub or the Company, enjoining as applicable, then either the Company or otherwise prohibiting Parent may, in its respective sole discretion, elect to extend the consummation of the Sale Termination Date to March 20, 2024, and such Order date shall have become final and non-appealablethe Termination Date for purposes of this Agreement, provided by delivering written notice to the other Party no later than the Termination Date; it being understood that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(c) shall will not be available to any Party whose action or failure to act (which action or failure to act constitutes a breach by such Party of this Agreement) has been the primary cause of, or primarily resulted in the failure of the Effective Time to have complied with its obligations pursuant occurred prior to Section 5.1 with respect to such Order; orthe then-scheduled Termination Date;
(cd) by Atlas:either Parent or the Company if the Company fails to obtain the Requisite Stockholder Approval at the Company Stockholder Meeting (including any adjournments and postponements thereof) at which a vote is taken on the adoption and approval of this Agreement and the Merger or on the approval of the Charter Amendment;
(ie) by Parent if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of Company contained in this Agreement shall have been inaccurate when made or shall have become inaccurate thereafter become untrue or inaccurate, or (y) APL shall have the Company has breached or failed to perform any of its obligations or covenants or agreements set forth contained in this Agreement, which inaccuracy or breach or failure to perform would result in each case such that any the failure of a condition set forth in Section 6.2(a7.2(a) or 6.2(bSection 7.2(b), except that (i) would not be satisfied at Closing; and (B) if such untruth, inaccuracy, breach or failure to perform is not curable capable of being cured by the Outside Termination Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would Parent will not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring entitled to terminate this Agreement pursuant to this Section 7.1 shall give 8.1(e) prior to the earlier of (A) 30 days after delivery by Parent to the Company of written notice of such termination and breach or failure to perform, or (B) the provisions of this Section 7.1 Termination Date, it being relied on understood that Parent will not be entitled to terminate this Agreement if such breach or failure to perform has been cured prior to termination; and (ii) Parent will not be entitled to terminate this Agreement pursuant to this Section 8.1(e) if any of the representations or warranties of the Parent contained in this Agreement shall then be inaccurate or Parent is then in breach in any material respect of any of its covenants or other agreements contained in this Agreement such that the Company would be entitled to terminate pursuant to Section 8.1(g) (disregarding for this purpose whether any applicable cure period required by Section 8.1(g) has been completed);
(f) by Parent if, prior to the Company obtaining the Requisite Stockholder Approval, the Company Special Committee or the Company Board has effected a Company Recommendation Change;
(g) by the Company if any of the representations or warranties of Parent or Merger Sub contained in this Agreement shall have been inaccurate when made or shall have become inaccurate thereafter or Parent or Merger Sub has breached or failed to perform any of its respective obligations or covenants contained in this Agreement, which inaccuracy, breach or failure to perform would result in a failure of a condition set forth in Section 7.3(a) or Section 7.3(b), except that (i) if such breach or failure to perform is capable of being cured by the Termination Date, the Company will not be entitled to terminate this Agreement pursuant to this Section 8.1(g) prior to the earlier of (A) 30 days after delivery by the Company to Parent of written notice of such breach or failure to perform, or (B) the Termination Date, it being understood that the Company will not be entitled to terminate this Agreement if such breach or failure to perform has been cured prior to termination; and (ii) the Company will not be entitled to terminate this Agreement pursuant to this Section 8.1(g) if any of the representations or warranties of the Company contained in this Agreement shall then be inaccurate or the Company is then in breach in any material respect of any of its representations, warranties, covenants or other Partiesagreements contained in this Agreement such that Parent would be entitled to terminate pursuant to Section 8.1(e) (disregarding for this purpose whether any applicable cure period required by Section 8.1(e) has been completed); or
(h) by the Company (at any time prior to receiving the Requisite Stockholder Approval) if (i) the Company has received a Superior Proposal; (ii) the Company Special Committee has authorized the Company to enter into an Alternative Acquisition Agreement to consummate the Acquisition Transaction contemplated by that Superior Proposal; (iii) the Company has complied in all material respects with Section 5.4 with respect to such Superior Proposal; and (iv) the Company pays, or causes to be paid, to Parent or its designee the Company Termination Fee pursuant to and in accordance with Section 8.3(b)(iii).
Appears in 3 contracts
Samples: Merger Agreement (Fuller Max L), Merger Agreement (Us Xpress Enterprises Inc), Merger Agreement (Knight-Swift Transportation Holdings Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing Effective Time (with any termination whether before or after adoption of this Agreement by APL also being an effective termination the Company’s shareholders and whether before or after approval of the issuance of Parent Common Stock in the Merger by APL Sub and any termination by Atlas also being an effective termination by ATNParent’s stockholders):
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlas:
(i) the Company if (A) the Sale Merger shall not have been consummated on or before September by November 30, 2011 (the “Outside Date”)2007; provided, however, that, if that in the Sale shall event that Form S-4 Registration Statement has not have occurred by been declared effective on or prior to September 30, 20112007, and such date shall be extended on a New Merger Agreement shall have day-for-day basis for each business day that the Form S-4 Registration Statement has not been executed, then, the Outside Date shall become declared effective following November 30, 20112007, with such extension not to exceed an additional thirty (30) days; and (B) the Party seeking provided, further, that a party shall not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(b) shall not have breached its obligations if the failure to consummate the Merger by November 30, 2007 (as the same may be extended pursuant to the preceding proviso) is attributable to a failure on the part of such party to perform any covenant in any material respect under this Agreement in any manner that required to be performed by such party at or prior to the Effective Time;
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have proximately caused issued a final and nonappealable order, decree or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order ruling, or shall have been entered taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Merger;
(d) by either Parent or the Sale Company if (i) the Company Shareholders’ Meeting (including any adjournments and such Order postponements thereof) shall have become been held and completed and the Company’s shareholders shall have taken a final vote on a proposal to adopt this Agreement, and non-appealable(ii) this Agreement shall not have been adopted at the Company Shareholders’ Meeting (and shall not have been adopted at any adjournment or postponement thereof) by the Required Company Shareholder Vote; provided, provided however, that the Party seeking a party shall not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(d) if the failure to have this Agreement adopted by the Required Company Shareholder Vote is attributable to a failure on the part of such party to perform any covenant in this Agreement required to be performed by such party at or prior to the Effective Time;
(e) by either Parent or the Company if (i) the Parent Stockholders’ Meeting (including any adjournments and postponements thereof) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein been held and completed and Parent’s stockholders shall be untrue or inaccurate have taken a final vote on the date issuance of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any shares of its covenants or agreements set forth Parent Common Stock in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at ClosingMerger, and (ii) such untruth, inaccuracy, breach the issuance of Parent Common Stock in the Merger shall not have been approved at the Parent Stockholders’ Meeting (and shall not have been approved at any adjournment or failure to perform is not curable postponement thereof) by the Outside Date. The Party desiring Required Parent Stockholder Vote; provided, however, that a party shall not be permitted to terminate this Agreement pursuant to this Section 7.1 shall give notice 8.1(e) if the failure to have the issuance of such termination and Parent Common Stock in the provisions Merger approved by the Required Parent Stockholder Vote is attributable to a failure on the part of this Section 7.1 being relied on the party seeking to terminate this Agreement to perform any covenant in this Agreement required to be performed by such party at or prior to the Effective Time;
(f) by Parent (at any time prior to the adoption of this Agreement by the Required Company Shareholder Vote) if a Company Triggering Event shall have occurred;
(g) by the Company (at any time prior to the approval of the issuance of Parent Common Stock in the Merger by the Required Parent Stockholder Vote) if a Parent Triggering Event shall have occurred;
(h) by Parent if (i) any of the Company’s representations and warranties contained in this Agreement shall be inaccurate as of the date of this Agreement, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date), such that the condition set forth in Section 6.1 would not be satisfied (it being understood that, for purposes of determining the accuracy of such representations and warranties as of the date of this Agreement or as of any subsequent date, (A) all “Material Adverse Effect” qualifications and other Parties.materiality qualifications, and any similar qualifications, contained in such representations and warranties shall be disregarded and (B) any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of this Agreement shall be disregarded), or (ii) any of the Company’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that if and for so long as an inaccuracy in any of the Company’s representations and warranties as of a date subsequent to the date of this Agreement or a breach of a covenant by the Company is curable by the Company and the Company is continuing to exercise all reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement under this Section 8.1(h) on account of such inaccuracy or breach; or
Appears in 3 contracts
Samples: Merger Agreement (Website Pros Inc), Merger Agreement (WEB.COM, Inc.), Merger Agreement (Website Pros Inc)
Termination. This Agreement may be terminated terminated, and the Sale Merger contemplated hereby may be abandoned abandoned, at any time prior to the Closing (with any termination Effective Time by APL also being an effective termination action taken or authorized by APL Sub and any termination the Board of Directors of the terminating party or parties, whether before or after approval of the Merger by Atlas also being an effective termination by ATN):the stockholders of the Company:
(a) by Section 7.1.1 By mutual written consent of APL Parent and Atlasthe Company, by action of their respective Boards of Directors;
Section 7.1.2 By the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL Company if Parent or Atlas:
(i) if (A) the Sale Purchaser shall not have been consummated accepted for payment and paid for Shares pursuant to the Offer in accordance with the terms hereof and thereof on or before September 30December 31, 2011 (the “Outside Date”)2005; provided, however, that, if that the Sale shall Company may not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i7.1.2 if the Company shall have (1) shall not have breached its obligations in failed to fulfill any material respect obligation under this Agreement in any manner that shall have proximately caused Agreement, which failure has been the cause of, or resulted in in, the failure of any condition to the Sale Offer to have been consummated by satisfied on or before such date, or (2) otherwise materially breached this Agreement;
Section 7.1.3 By either the Company or Parent if the Offer is terminated or withdrawn pursuant to its terms without any Shares being purchased thereunder; or
(ii) provided, however, that neither the Company nor Parent may terminate this Agreement pursuant to this Section 7.1.3 if an Order such party shall have been entered materially breached this Agreement;
Section 7.1.4 By either the Company or Parent if any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting (A) the consummation of acceptance for payment of, or payment for, Shares pursuant to the Sale Offer or (B) the Merger, and such Order order, decree, ruling or other action shall have become final and non-appealablenonappealable (which order, provided that decree, ruling or other action the Party party seeking to terminate this Agreement shall have used its reasonable efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 5.5);
Section 7.1.5 By Parent prior to the purchase of Shares pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) the Offer, if (A) the Company Board shall have withdrawn or adversely modified (xincluding by amendment to the Schedule 14D-9), or failed upon Parent’s request to reconfirm, its approval or recommendation of the Offer, the Merger or this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company’s stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 20% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent) and the Company Board fails to recommend that the Company’s stockholders not tender their Shares in such tender or exchange offer; (D) any person (other than Parent or an affiliate of Parent) or group becomes the beneficial owner of 20% or more of the representations outstanding Shares; or warranties (E) the Company shall have furnished or caused to be furnished confidential information or data to, or engaged in negotiations or discussions with, another person other than pursuant to Section 5.4.1;
Section 7.1.6 By the Company, if the Company Board determines to accept a Superior Proposal, but only after the Company (A) provides Parent with not less than two (2) business days’ notice of APL herein shall be untrue or inaccurate on its determination to accept such Superior Proposal, including all terms thereof, (B) within the date not less than two (2) business day period referred, the Company has and has caused its financial and legal advisors to, negotiate with Parent to make such adjustments in the terms and conditions of this Agreement or shall thereafter become untrue or inaccuratewith the goal of enabling the Company to proceed with the transactions contemplated hereby, or (yC) APL shall have breached or failed to perform any of fulfills its covenants or agreements set forth in this Agreement, in each case obligations under Section 7.2 hereof upon such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated termination (provided that, in order that the Company’s right to terminate this Agreement under this Section 7.1.6 shall not be available if the Company is then in breach of Section 5.4) and (D) following such two (2) business day period, the Company Board determines in good faith (i) that such proposal still constitutes a Superior Proposal (after giving effect to all of the concessions which may be offered by Parent pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or clause (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(aabove) or 6.3(b) would not be satisfied at Closing, and (ii) that, after receiving advice of outside counsel, it would constitute a breach of its fiduciary duties not to accept such untruthSuperior Proposal; or
Section 7.1.7 By Parent, inaccuracyprior to the purchase of Shares pursuant to the Offer, breach or failure to perform is if the Minimum Condition shall not curable have been satisfied by the Outside Date. The Party desiring Expiration Date of the Offer and on or prior to terminate this Agreement pursuant to this Section 7.1 such Expiration Date the Company shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partieshave received an Acquisition Proposal.
Appears in 3 contracts
Samples: Merger Agreement (Xyratex LTD), Merger Agreement (Nstor Technologies Inc), Merger Agreement (Xyratex LTD)
Termination. This Agreement may be terminated terminated, and the Sale Merger contemplated hereby may be abandoned by action taken or authorized by the board of directors of the terminating party or parties, whether before or after receipt of the Company Stockholder Approval:
(a) By mutual written consent of Parent and the Company, by action of their respective boards of directors, at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orEffective Time;
(b) by By either APL the Company or Atlas:
(i) Parent, if (A) the Sale Effective Time shall not have been consummated occurred on or before September June 30, 2011 2013 (the “Initial Outside Date”); provided, however, thatthat the right to terminate this Agreement under this Section 7.1(b), shall not be available to any party whose failure to fulfill any of its obligations under this Agreement has been a principal cause of the failure of the Effective Time to occur on or before such date; and provided, further, that if on the Initial Outside Date the condition to the Closing set forth in Section 6.1(c) shall not have been satisfied, but all other conditions to the Closing shall have been satisfied or waived (or shall be capable of being satisfied at the Closing), then the Initial Outside Date shall be extended to September 30, 2013 (the “Extended Outside Date”);
(c) By either the Company or Parent, if the Sale Company Stockholder Approval shall not have occurred by September 30been obtained upon a vote taken thereon at the Company Stockholder Meeting;
(d) By either the Company or Parent, 2011if any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, judgment, injunction or taken any other action, in each case, permanently enjoining, restraining, prohibiting or making illegal the Merger, and a New Merger such order, decree, judgment, injunction or other action shall have become final and nonappealable (which order, decree, judgment, injunction or other action the party seeking to terminate this Agreement shall have been executedused commercially reasonable efforts to resist, thenresolve or lift, as applicable); provided however, that the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(d) shall not have breached be available to a party whose failure to fulfill any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused has been a principal cause of such order, decree, judgment or resulted in the failure of the Sale injunction to have been consummated by issued or such date; orother action to have been taken;
(e) By Parent, at any time prior to the receipt of the Company Stockholder Approval, if (i) the Company Board shall have effected a Change of Company Board Recommendation or an Intervening Event Change of Recommendation (whether or not in compliance with Section 5.6), or (ii) if an Order the Company shall have been entered permanently restraininginto a letter of intent, enjoining agreement in principle, merger agreement or otherwise prohibiting other similar agreement relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement);
(f) By the consummation Company, at any time prior to the receipt of the Sale Company Stockholder Approval, if (i) the Company Board has authorized the Company to enter into a definitive agreement with respect to a Superior Proposal in accordance with the terms of this Agreement, and (ii) immediately after the termination of this Agreement, the Company enters into a definitive agreement with respect to such Superior Proposal, but only if the Company shall prior to or concurrently with such termination pay the Termination Fee to or for the account of Parent (it being understood that any purported termination of this Agreement pursuant to this Section 7.1(f) shall not be effective unless the Company has paid the Termination Fee);
(g) By Parent, at any time prior to the Effective Time, if: (i) there has been a breach by the Company of its representations, warranties or covenants contained in this Agreement, in any case, such that the conditions contained in Sections 6.2(a) or 6.2(b) are not reasonably capable of being satisfied, (ii) Parent shall have delivered to the Company written notice of such breach, and (iii) either such breach is not capable of cure or at least thirty (30) days shall have elapsed since the date of delivery of such written notice to the Company and such Order breach shall not have become final and non-appealablebeen cured in all material respects; provided, provided however, that the Party seeking Parent shall not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(ii7.1(g) if there has been any material breach by either Parent or Merger Sub of its representations, warranties or covenants contained in this Agreement, and such breach shall not have complied with its obligations pursuant to Section 5.1 with respect to such Orderbeen cured in all material respects; or
(ch) by Atlas:
By the Company, at any time prior to the Effective Time, if: (i) if (A) (x) there has been a breach by Parent or Merger Sub of any of its representations, warranties or covenants contained in this Agreement that shall have, individually or in the representations aggregate, a Parent Material Adverse Effect, (ii) the Company shall have delivered to Parent written notice of such breach, and (iii) either such breach is not capable of cure or warranties of APL herein at least thirty (30) days shall be untrue or inaccurate on have elapsed since the date of this Agreement or delivery of such written notice to Parent and such breach shall thereafter become untrue or inaccuratenot have been cured in all material respects; provided, or (y) APL however, that the Company shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring permitted to terminate this Agreement pursuant to this Section 7.1 7.1(h) if there has been any material breach by the Company of its representations, warranties or covenants contained in this Agreement, and such breach shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesnot have been cured in all material respects.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Zipcar Inc), Merger Agreement (Avis Budget Group, Inc.)
Termination. This 16.1 The term of this Agreement may shall be three years commencing upon the date hereof (the "Initial Term"), unless earlier terminated and as provided herein. After the Sale may be abandoned at any time expiration of the Initial Term, the term of this Agreement shall automatically renew for successive one-year terms (each a "Renewal Term") unless notice of non-renewal is delivered by the non-renewing party to the other party no later than ninety days prior to the Closing (with expiration of the Initial Term or any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Renewal Term, as the case may be.
(a) by mutual written consent of APL and Atlas, by action Either party hereto may terminate this Agreement prior to the expiration of the APL Board Initial Term or any Renewal Term in the event the other party violates any material provision of this Agreement, provided that the non- violating party gives written notice of such violation to the violating party and Atlas’s board the violating party does not cure such violation within 90 days of directors, respectively; orreceipt of such notice.
(b) If a majority of the Board reasonably determines that the performance of the Bank under this Agreement has been unsatisfactory, written notice (the "Notice") of such determination setting forth the reasons for such determination shall be provided to the Bank. Such determination shall be based upon such information as the Board in its sole discretion elects to consider, including the Bank's performance against the "Performance Goals" (as defined below). In order to be effective, any Notice must be executed by two officers of the Fund. The Bank shall, within sixty (60) days after receipt of the Notice, either APL or Atlas:
(i) if correct the deficiencies listed in the Notice; or (Aii) renegotiate terms of this Agreement in a form satisfactory to the Sale shall Fund. If the conditions of the preceding sentence are not have been consummated on or before September 30, 2011 met within such sixty (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then60) day period, the Outside Date shall become November 30, 2011; and (B) the Party seeking to Fund may terminate this Agreement pursuant without additional action by the Fund's Board upon an additional sixty (60) days written notice. For the purposes of this Section, "Performance Goals" shall mean the performance goal criteria mutually agreed between the parties. The parties agree 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 develop the initial Performance Goals no later than June 30, 1999 and agree to periodically review the Performance Goals for necessary updates due to changes in the failure nature or scope of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealable, services 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partieshereunder.
Appears in 3 contracts
Samples: Custodian Agreement (Fulcrum Trust), Custodian Agreement (Allmerica Investment Trust), Custodian Agreement (Allmerica Investment Trust)
Termination. This Agreement Agreement, any individual SA or any individual Service under any SA may be terminated and the Sale may be abandoned at any time prior to the Closing (earlier in accordance with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):of the following provisions:
(a) by 8.3.1 By mutual written consent of APL both Seller and Atlas, by action Purchaser;
8.3.2 By Purchaser effective as of the APL Board and Atlas’s board last day of directors, respectively; orthe month immediately following the month in which written notice is given;
(b) by 8.3.3 By either APL or Atlas:
(i) if (A) party entitled to the Sale shall not have been consummated on or before September 30, 2011 benefit of the performance of any of the obligations under this Agreement (the “Outside DateNon Defaulting Party”), if the other party (the “Defaulting Party”) shall fail to perform or default in such performance in any material respect, subject to compliance with the remainder of this paragraph. The Non Defaulting Party shall give written notice to the Defaulting Party specifying the nature of such failure or default and stating that the Non Defaulting Party intends to terminate this Agreement with respect to the Defaulting Party if such failure or default is not cured within thirty (30) days after receipt of such written notice. If any failure or default so specified is not cured within such period, the Non Defaulting Party may elect to immediately terminate the applicable SA with respect to the Defaulting Party; provided, however, that, that if the Sale shall not have occurred failure or default relates to a dispute contested in good faith by September 30, 2011, and a New Merger Agreement shall have been executed, thenthe Defaulting Party, the Outside Date shall become November 30, 2011; and (B) the Non Defaulting Party seeking to may not terminate this Agreement pending the resolution of such dispute in accordance with Section 7 hereof. Such termination shall be effective upon giving a written notice of termination from the Non Defaulting Party to the Defaulting Party and shall be without prejudice to any other remedy which may be available to the Non Defaulting Party against the Defaulting Party;
8.3.4 Automatically, without notice by or to either party, if: (i) Purchaser shall (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its properties, (2) make a general assignment for the benefit of its creditors, (3) commence a voluntary case under the United States Bankruptcy Code, as now or hereafter in effect (the “Bankruptcy Code”), (4) file a petition seeking to take advantage of any law (the “Bankruptcy Laws”) relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts, (5) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in any involuntary case under the Bankruptcy Code, or (6) take any corporate action for the purpose of effecting any of the foregoing; or (ii) a proceeding or case shall be commenced against Purchaser in any court of competent jurisdiction, seeking (1) its liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of Purchaser or of all or any substantial part of its assets, or (3) similar relief under any Bankruptcy Laws, or an order, judgment or decree approving any of the foregoing shall be entered and continue unstayed for a period of ninety (90) days, or an order for relief against Purchaser shall be entered in an involuntary case under the Bankruptcy Code;
8.3.5 By Seller, effective immediately upon notice to Purchaser, if any of the following shall occur: (a) the sale, transfer or other disposition of all or substantially all of the assets of Purchaser on a consolidated basis to any competitor or (b) any competitor acquires beneficial ownership of a majority of the outstanding shares of common stock of Purchaser; or
8.3.6 By either party upon termination of the Purchase Agreement pursuant to Section 10.1 of the Purchase Agreement, provided that in the event of termination 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 Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restrainingSection, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would Purchaser will not be satisfied at Closing; and (B) such untruthobligated to pay Seller any amounts hereunder, inaccuracy, breach including Day One Setup Costs or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesDay Two Setup Costs.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Agilent Technologies Inc), Purchase and Sale Agreement (Avago Technologies LTD), Purchase and Sale Agreement (Avago Technologies LTD)
Termination. This Agreement may be terminated and the Sale Mergers and the other transactions contemplated hereby may be abandoned at any time prior to the Closing First Effective Time (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNnotwithstanding receipt of the Company Stockholder Approval or the Parent Shareholder Approval):
(a) by mutual written consent of APL and Atlas, by action agreement of the APL Board Company and Atlas’s board of directors, respectively; orParent;
(b) by either APL the Company or AtlasParent, if:
(i) if (A) the Sale shall Mergers have not have been consummated on or before September 30December 12, 2011 2021 (as such date may be extended pursuant to the following proviso, the “Outside End Date”); provided, howeverthat (A) if on such date, that, the conditions to the Closing set forth in Section 9.01(h) or Section 9.01(c) (if the Sale injunction, other Order or Applicable Law relates to Antitrust Laws) shall not have occurred by September 30been satisfied, 2011, and a New Merger Agreement but all other conditions to the Closing shall have been executedsatisfied (or in the case of conditions that by their terms are to be satisfied at the Closing, thenshall be capable of being satisfied on such date) or waived, then the Outside End Date shall become November 30may be extended by either Parent or the Company for a period of 90 days by written notice to the other party; provided, 2011; and (B) further, that the Party seeking right to terminate this Agreement or to extend the End Date, as applicable, pursuant to this Section 7.1(b)(i10.01(b)(i) shall not have breached its obligations in be available to any material respect under party whose breach of any provision of this Agreement in any manner that shall have proximately caused or resulted in has been the proximate cause of the failure of the Sale Mergers to have been be consummated by such date; ortime;
(ii) if an Order a court or other Governmental Authority of competent jurisdiction shall have been entered issued an injunction or other Order that permanently restrainingenjoins, enjoining prevents or otherwise prohibiting prohibits the consummation of the Sale Mergers and such injunction or other Order shall have become final and non-appealable; provided, provided that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii10.01(b)(ii) shall not be available to any party whose breach of any provision of this Agreement has been the proximate cause of such injunction or other Order;
(iii) the Company Stockholder Meeting (as it may be adjourned or postponed) at which a vote on the Company Stockholder Approval was taken shall have complied with its obligations concluded and the Company Stockholder Approval shall not have been obtained; provided, that, unless the Parent Shareholder Approval shall have previously been obtained, the right to terminate this Agreement pursuant to this Section 5.1 with respect 10.01(b)(iii) shall not be available until 24 hours after the conclusion of such meeting.
(iv) the Parent Shareholder Meeting (as it may be adjourned or postponed) at which a vote on the Parent Shareholder Approval was taken shall have concluded and the Parent Shareholder Approval shall not have been obtained; provided, that, unless the Company Stockholder Approval shall have previously been obtained, the right to terminate this Agreement pursuant to this Section 10.01(b)(iv) shall not be available until 24 hours after the conclusion of such Ordermeeting; or
(c) by AtlasParent:
(i) prior to the receipt of the Company Stockholder Approval, if (A) a Company Adverse Recommendation Change shall have occurred, (xB) a tender or exchange offer subject to Regulation 14D under the 1934 Act that constitutes a Company Acquisition Proposal shall have been commenced (within the meaning of Rule 14d-2 under the Exchange Act) and the Company shall not have communicated to its stockholders, within ten Business Days after such commencement, a statement disclosing that the Company recommends rejection of such tender or exchange offer (or shall have withdrawn any such rejection thereafter) or (C) the Company has committed a Willful Breach of the representations Section 6.02 or warranties of APL herein shall be untrue or inaccurate on the date of Section 8.04(a), provided, that this Agreement may not be terminated pursuant to this clause (C) if Parent, Bidco or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform either Merger Sub is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that which breach by Parent, Bidco or either Merger Sub would cause any condition set forth in Section 6.2(a9.03(a) or 6.2(bSection 9.03(b) not to be satisfied;
(ii) if a breach of any representation or warranty 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 any condition set forth in Section 9.02(a) or Section 9.02(b) not to be satisfied at Closing; satisfied, and (B) such untruth, inaccuracy, breach or failure to perform (A) is not curable incapable of being cured by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, End Date or (B) Atlas has not been cured by the Company within the earlier of (x) 45 days following written notice to the Company from Parent of such breach or ATN shall have breached or failed failure to perform and (y) the End Date; provided, that this Agreement may not be terminated pursuant to this Section 10.01(c)(ii) if Parent, Bidco or either Merger Sub is then in breach of any of their respective its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that which breach by Parent, Bidco or either Merger Sub would cause any condition set forth in Section 6.3(a9.03(a) or 6.3(bSection 9.03(b) would not to be satisfied;
(d) by the Company:
(i) prior to the receipt of the Parent Shareholder Approval, if (A) a Parent Adverse Recommendation Change shall have occurred, (B) an offer (as defined in the U.K. Code) or tender or exchange offer subject to Regulation 14D under the 1934 Act that constitutes a Parent Acquisition Proposal shall have been commenced and Parent shall not have communicated to its shareholders, within ten Business Days after such commencement, a statement disclosing that Parent recommends rejection of such offer or tender or exchange offer (or shall have withdrawn any such rejection thereafter); or (C) Parent, Bidco or either Merger Sub has committed a Willful Breach of Section 7.02 or Section 8.04(b), provided, that this Agreement may not be satisfied at Closingterminated pursuant to this clause (C) if the Company is then in breach of any of its representations, and warranties, covenants or agreements set forth in this Agreement, which breach by the Company would cause any condition set forth in Section 9.02(a) or Section 9.02(b) not to be satisfied;
(ii) if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Parent, Bidco or either Merger Sub set forth in this Agreement shall have occurred that would cause any condition set forth in Section 9.03(a) or Section 9.03(b) not to be satisfied, and such untruth, inaccuracy, breach or failure to perform (A) is not curable incapable of being cured by the Outside End Date or (B) has not been cured by Parent, Bidco or either Merger Sub, as applicable, within the earlier of (x) 45 days following written notice to Parent from the Company of such breach or failure to perform and (y) the End Date; provided, that this Agreement may not be terminated pursuant to this Section 10.01(d)(ii) if the Company is then in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, which breach by the Company would cause any condition set forth in Section 9.02(a) or Section 9.02(b) not to be satisfied; or
(iii) prior to obtaining the Company Stockholder Approval, in order to enter into a definitive agreement providing for a Company Superior Proposal promptly following such termination in accordance with, and subject to the terms and conditions of, Section 6.02. The Party party desiring to terminate this Agreement pursuant to this Section 7.1 10.01 (other than pursuant to Section 10.01(a)) shall give written notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparty.
Appears in 3 contracts
Samples: Merger Agreement (Astrazeneca PLC), Merger Agreement (Alexion Pharmaceuticals, Inc.), Merger Agreement (Alexion Pharmaceuticals, Inc.)
Termination. This Agreement may be terminated and the Sale may be Transactions abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time:
(a) by the mutual written consent of APL the Partnership and Atlas, Parent duly authorized by action each of the APL Board Conflicts Committee and Atlas’s board of directorsthe Parent Board, respectively; or;
(b) by either APL or Atlasof Parent or, following authorization by the Conflicts Committee, the Partnership:
(i) if (A) the Sale Closing shall not have been consummated on or before September 30October 6, 2011 2023 (the “Outside Date”); provided, however, that, if provided that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i) shall not have breached be available to a Party (A) if the breach by such Party of its representations and warranties set forth in this Agreement or the failure of such Party to perform any of its obligations in any material respect under this Agreement Agreement, its failure to act in any manner that shall have proximately caused good faith or its failure to use its commercially reasonable efforts to consummate the Transactions, including to the extent required by and subject to Section 5.4, has been a principal cause of or resulted in the failure of the Sale Merger to have been be consummated on or prior to such date (it being understood that Pxxxxx, Mxxxxx Sub and the General Partner shall be deemed a single party for purposes of the foregoing proviso) or (B) if any other Party has filed (and is then pursuing) an action seeking specific performance as permitted by such date; orSection 8.8;
(ii) if an Order any Restraint having the effect set forth in Section 6.1(b) shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale be in effect and such Order shall have become final and non-appealablenonappealable; provided, provided however, that the Party seeking to terminate this Agreement pursuant to under this Section 7.1(b)(ii) shall have complied performed in all material respects its obligations under this Agreement, acted in good faith and used commercially reasonable efforts to prevent the entry of and to remove such Restraint in accordance with its obligations pursuant under this Agreement; or
(iii) if the Unitholders Meeting at which the vote was taken shall have concluded and the Unitholder Approval shall not have been obtained; provided, however, that the Party seeking to terminate this Agreement under this Section 5.1 7.1(b)(iii) shall have performed in all material respects its obligations under this Agreement with respect to such Order; orthereto;
(c) by AtlasParent:
(i) if an Adverse Recommendation Change shall have occurred; or
(Aii) (x) if the Partnership shall have breached any of the its representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants obligations or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) is not reasonably capable of being cured prior to the Outside Date or has not been cured by the Partnership within 30 days following receipt of written notice from Parent of such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order stating Parent’s intention to terminate this Agreement pursuant to this subclause Section 7.1(c)(ii) (iior in any event, has not been cured by the Outside Date), Atlas must exercise its ; provided that Parent shall not have the right to do so within thirty days terminate this Agreement pursuant to this Section 7.1(c)(ii) if any of the termination Sponsor Entities is then in material breach of the Merger Agreement); orany of its representations, warranties, obligations or agreements hereunder;
(d) by APL, the Partnership if (i)(A) a Sponsor Entity shall have breached any of the its representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants its obligations or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (iiB) is not reasonably capable of being cured prior to the Outside Date or has not been cured by the applicable Sponsor Entity within 30 days following receipt of written notice from the Partnership of such untruth, inaccuracy, breach or failure to perform is stating the Partnership’s intention to terminate this Agreement pursuant this Section 7.1(d); provided that the Partnership shall not curable by have the Outside Date. The Party desiring right to terminate this Agreement pursuant to this Section 7.1 shall give notice 7.1(d) (1) if the Partnership is then in material breach of any of its representations, warranties, obligations or agreements hereunder and (2) without such termination and first being authorized by the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesConflicts Committee.
Appears in 3 contracts
Samples: Merger Agreement (GasLog Partners LP), Merger Agreement (GasLog Ltd.), Merger Agreement (GasLog Ltd.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, by APL also being an effective termination action taken or authorized by APL Sub and any termination by Atlas also being an effective termination by ATN):the Board of Directors of the terminating party or parties:
(a) by mutual written consent of APL Insys and AtlasNeoPharm in a written instrument, by action if the Board of the APL Board and Atlas’s board Directors of directors, respectively; oreach so determines;
(b) by either APL the Insys Board or Atlas:the NeoPharm Board, if any Governmental Entity of competent jurisdiction shall have issued a final and nonappealable order permanently enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement, except that no party may terminate this Agreement pursuant to this Section 8.1(b) if such party’s breach of its obligations under this Agreement proximately contributed to the occurrence of such order;
(ic) by either the Insys Board or the NeoPharm Board if (A) the Sale Merger shall not have been consummated on or before September 30December 31, 2011 2010, subject to extension by the mutual agreement of Insys and NeoPharm (the “Outside End Date”); provided, however, that, ;
(d) by the Insys Board if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement there shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached its obligations in a breach of any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining covenants or otherwise prohibiting the consummation agreements or any inaccuracy of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this AgreementAgreement on the part of NeoPharm or Merger Sub , which breach or inaccuracy, either individually or in each case such that any condition the aggregate, would result in, if occurring or continuing on the Closing Date, the failure of the conditions set forth in Section 6.2(a7.2(a) or 6.2(b) would not be satisfied at Closing; (b), unless such failure is reasonably capable of being cured, and (B) NeoPharm is continuing to use its reasonable best efforts to cure such untruthfailure, inaccuracy, breach or failure to perform is not curable by the Outside End Date; or;
(iie) by the NeoPharm Board if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days there shall have been a breach of any of the termination covenants or agreements or any inaccuracy of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this AgreementAgreement on the part of Insys, which breach or inaccuracy, either individually or in each case such that any condition the aggregate, would result in, if occurring or continuing on the Closing Date, the failure of the conditions set forth in Section 6.3(a7.3(a) or 6.3(b) would not be satisfied at Closing(b), unless such failure is reasonably capable of being cured, and (ii) Insys is continuing to use its reasonable best efforts to cure such untruthfailure, inaccuracy, breach or failure to perform is not curable by the Outside End Date. The Party desiring ; and
(f) by the NeoPharm Board in order to terminate this Agreement pursuant concurrently enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal, if NeoPharm has complied in all material respects with the requirements of Section 5.5 and, prior to this Section 7.1 shall give notice or concurrently with such termination, NeoPharm pays to Insys a termination fee of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties$500,000 in cash.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement, Merger Agreement (Insys Therapeutics, Inc.)
Termination. This Agreement may be terminated and the Sale transactions provided for herein may be abandoned at any time prior upon notice by the terminating party to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):other party:
(a) by mutual written consent of APL Seller and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orBuyer;
(b) by either APL party, if any order, injunction or Atlas:decree of a Governmental Entity shall be in effect at the Closing which restrains or prohibits the transactions contemplated hereby or if any suit, action, investigation, inquiry or legal or administrative proceeding shall be pending or threatened at the Closing which has been initiated by a Governmental Entity which challenges consummation of the transactions contemplated hereby;
(c) by Buyer, if (i) Seller has within the then previous ten (10) business days given or was required to have given Buyer any notice pursuant to Section 5.7 above and (ii) the development that is the subject of the notice has had or could have a Material Adverse Effect on the Insurance Companies or Seller’s ability to indemnify Buyer hereunder;
(d) by Seller, if (i) Buyer fails to file a “Form A” application with the Texas Department of Insurance within fifteen (15) business days of the date of this Agreement, or (ii) (A) Buyer has within the Sale then previous ten (10) business days given or was required to have given Seller any notice pursuant to Section 5.7 above and (B) the development that is the subject of the notice has had or could have a Material Adverse Effect on Buyer’s ability to consummate the Share Purchase or other transactions provided for in this Agreement; or
(e) by either party, if the transactions contemplated by this Agreement shall not have been consummated on or before prior to September 30, 2011 (the “Outside Date”); provided2005, however, that, if the Sale unless such failure of consummation shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking be due 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 Sale party seeking such termination to have been consummated perform or observe in all material respects the covenants and agreements hereof to be performed or observed by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparty.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Vesta Insurance Group Inc), Stock Purchase Agreement (Vesta Insurance Group Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether before or after approval of the shareholders of the Company described herein:
(a) by mutual written consent of APL Purchaser and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Purchaser or Atlasthe Company, if:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30prior to August 31, 2011 2006 (the “Outside Drop Dead Date”); , provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached be available to any party whose failure to perform any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Merger to have been be consummated by such date; ortime;
(ii) if an Order required under the MBCA, the vote of the Company’s shareholders shall have been entered taken at a meeting duly convened therefor or at any adjournment or postponement thereof, and such vote shall be insufficient to approve the Merger and this Agreement notwithstanding that at any and all such meetings Purchaser shall vote and cause Merger Sub and all Purchaser Affiliates to vote all shares of Company Common Stock they then Beneficially Own and have voting power with respect to in favor of the Merger and this Agreement; or
(iii) any Governmental Authority shall have issued an order, decree or ruling or taken any other action permanently enjoining, restraining, enjoining suspending or otherwise prohibiting the consummation of the Sale Offer or the Merger and such Order order, decree or ruling or other action 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 5.1 with respect to such Order; ornonappealable;
(c) by Atlas:
(i) Purchaser, if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, which breach or failure to perform is incapable of being cured or has not curable by been cured within 20 days after the Outside Date; or
(ii) if giving of written notice to the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); orCompany;
(d) by APLPurchaser, if (i)(A1) the Company shall have breached in any material respect its obligations set forth in Section 4.8 hereof, (2) the Board of Directors of the Company or the Special Committee, as the case may be, shall have withdrawn or modified in a manner adverse to Purchaser its approval or recommendation of the Offer, the Merger or this Agreement, or approved or recommended any Company Superior Offer or (3) the Board of Directors of the Company or the Special Committee, as the case may be, shall have resolved to take any of the representations or warranties of Atlas herein shall be untrue or inaccurate on foregoing actions;
(e) by the date of this Agreement or shall thereafter become untrue or inaccurateCompany, or (B) Atlas or ATN if Purchaser shall have breached or failed to perform in any material respect any of their respective its representations, warranties, covenants or other agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, which breach or failure to perform is incapable of being cured or has not curable been cured within 20 days after the giving of written notice to Purchaser;
(f) by the Outside DatePurchaser, other than as a result of a breach by the Purchaser or Merger Sub of its obligations hereunder, if as a result of any condition set forth in Annex A hereto failing to be satisfied, the Purchaser shall have (i) failed to commence the Offer within 30 days following the date of this Agreement, or (ii) terminated the Offer without having accepted any Shares for payment thereunder;
(g) by the Company, upon approval of its Board of Directors, if the Purchaser shall have terminated the Offer without having accepted any Shares for payment thereunder, other than as a result of a breach by the Company of its obligations hereunder;
(h) by the Company on or after April 1, 2006, if, other than as a result of a breach by the Company of any of its representations, warranties or covenants hereunder, Purchaser shall have failed to purchase pursuant to the Offer at least that number of shares of Company Common Stock that is equal to the number that satisfies the Minimum Condition; provided that the Company may not terminate under this clause (h) if the Company Board of Directors has received and is considering a Company Takeover Proposal in accordance with the provisions of Section 4.8(c); and
(i) by the Company, upon approval of its Board of Directors, if the Company enters into a definitive written agreement with a third party that would constitute a Company Superior Offer. The Party party desiring to terminate this Agreement pursuant to this Section 7.1 the preceding paragraphs shall give written notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparty in accordance with Section 8.5 hereof.
Appears in 3 contracts
Samples: Merger Agreement (Sl Industries Inc), Merger Agreement (Sl Industries Inc), Merger Agreement (Ault Inc)
Termination. A. This Agreement may be terminated and the Sale may be or abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL or AtlasClosing:
(i) by mutual written agreement of Purchaser and Seller;
(ii) by Seller or Purchaser if (A) the Sale Closing shall not have been consummated on or before September 30July 31, 2011 2006;
(iii) by either Purchaser or Seller if consummation of the “Outside Date”); providedtransactions contemplated hereby would violate any nonappealable final order, however, that, decree or judgment of any Governmental Authority having competent jurisdiction;
(iv) by Seller if any of the Sale shall not have occurred by September 30, 2011, conditions set forth in Sections 6.A and a New Merger Agreement 6.C shall have been executed, then, rendered impossible to satisfy (which satisfaction contemplates timely satisfaction in accordance with any prescribed date set forth in a condition) and is not waived by the Outside Date shall become November 30, 2011; party entitled to the benefit thereof;
(v) by Purchaser if any of the conditions set forth in Sections 6.A and (B) 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 6.B shall have proximately caused or resulted been rendered impossible to satisfy (which satisfaction contemplates timely satisfaction in accordance with any prescribed date set forth in a condition) and is not waived by the failure of party entitled to the Sale to have been consummated by such datebenefit thereof; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(cvi) by Atlas:
(i) either party if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL other party shall have breached or failed to perform in any respect any of its covenants representations, warranties, covenants, agreements or agreements set forth other obligations contained in this Agreement which breach or failure is (x) reasonably likely to have a material adverse effect on the transaction contemplated by this Agreement, taken as a whole, and (y) incapable of being cured, or, if curable, has not been cured by such breaching party within fifteen (15) calendar days after having received written notice from the other party of such breach or failure to perform.
B. In the event of termination or abandonment of the transactions contemplated hereby by any party hereto pursuant to the terms of this Agreement, written notice shall forthwith be given expeditiously to the other party specifying the provision hereof pursuant to such termination or abandonment of the transactions contemplated hereby.
C. If this Agreement is terminated as permitted pursuant to Sections 7.A(i) through 7.A(v), such termination shall be without liability of either party (or any stockholder, director, officer, partner, employee, agent, consultant or representative of such party) to the other party to this Agreement; provided that no such termination shall relieve Purchaser or Seller from liability for fraud.
D. If this Agreement is terminated pursuant to Section 7.A(vi) as a result of a party’s (a “Breaching Party”) failure to perform a covenant under this Agreement or breach of any representation or warranty contained in this Agreement, or if any party is in each case material breach of its obligations herein, including obligations which survive Closing or earlier termination, such that Breaching Party shall be liable for any condition set forth in Section 6.2(a) damages incurred or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable suffered by the Outside Date; orother party as a result of such failure or breach and shall reimburse the other party for all reasonable and documented costs and expenses incurred in connection with this transaction.
(ii) if E. Notwithstanding anything to the Merger Agreement is terminated (provided thatcontrary above, in order to terminate this Agreement pursuant to this subclause (iithe provisions of Section 4.J(brokers), Atlas must exercise its right to do so within thirty days of the termination of the Merger AgreementSection 5.B (publicity); or
, Section 5.E (d) by APLreciprocal indemnity), if Section 7.D (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccuratedamages for breach), or Section 8.D (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closingexpenses), and Section 8.G (iigoverning law and jurisdiction) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement shall survive any termination hereby pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties7.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Jacuzzi Brands Inc), Stock Purchase Agreement (Jacuzzi Brands Inc), Stock Purchase Agreement (Jacuzzi Brands Inc)
Termination. 11.1. This Agreement may be terminated by the mutual agreement of the Pacific Funds Trust and the Sale may be abandoned at any time Aristotle Trust prior to the Closing (Date.
11.2. In addition, either of the Pacific Funds Trust or the Aristotle Trust may at its option terminate this Agreement, with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):respect to a Reorganization at or prior to the Closing Date because:
(a) Of a material breach by mutual written consent the other of APL and Atlasany representation, warranty, covenant or agreement contained herein to be performed by action of the APL Board and Atlas’s board of directors, respectively; orother party at or prior to the Closing Date;
(b) by either APL A condition herein expressed to be precedent to the obligations of the terminating party has not been met and it reasonably appears that it will not or Atlas:cannot be met as of [•];
(ic) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement Any governmental authority of competent jurisdiction shall have been executedissued any judgment, theninjunction, order, ruling or decree or taken any other action restraining, enjoining or otherwise prohibiting this Agreement or the Outside Date shall become November 30consummation of any of the transactions contemplated herein and such judgment, 2011injunction, order, ruling, decree or other action becomes final and non-appealable; and (B) provided that the Party 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 Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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)(ii11.2(c) shall have complied with used its obligations pursuant reasonable best efforts to Section 5.1 with respect to have such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations judgment, injunction, order, ruling, decree or warranties of APL herein shall be untrue other action lifted, vacated or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement)denied; or
(d) by APL, if (i)(A) any The board of trustees of the representations Pacific Funds Trust or warranties the board of Atlas herein shall be untrue trustees of the Aristotle Trust has resolved to terminate this Agreement after determining in good faith that circumstances have developed that would make proceeding with a Reorganization not in the best interests of an Acquired Fund’s shareholders or inaccurate on an Acquiring Fund’s shareholders.
11.3. In the date event of the termination of this Agreement or and abandonment of the transactions contemplated hereby pursuant to this Section 11, this Agreement shall thereafter become untrue or inaccuratevoid and have no effect except that (a) Sections 9.2, or 10, 11.3, 13, 14 and 15 shall survive any termination of this Agreement, and (Bb) Atlas or ATN shall have breached or failed notwithstanding anything to perform any of their respective covenants or agreements set forth the contrary contained in this Agreement, in each case such that no party shall be relieved or released from any condition set forth in Section 6.3(a) liability or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, damages arising out of any breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate of any provision of this Agreement by any party prior to the date of termination, unless the termination is effected pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties11.1.
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Aristotle Funds Series Trust), Agreement and Plan of Reorganization (Aristotle Funds Series Trust), Agreement and Plan of Reorganization (Aristotle Funds Series Trust)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, whether before or after approval of this Agreement and the Merger by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the stockholders of OTE in such case where approval is required:
(a) by mutual written consent of APL OTE and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orTetriDyn;
(b) by either APL Party, upon a material breach of any representation, warranty, covenant, or Atlas:agreement on the part of the other Party set forth in this Agreement such that the conditions set forth in section 6.02(a) or section 6.02(b) of this Agreement, as the case may be, would be incapable of being satisfied by May 31, 2015 (or as otherwise extended as described in subsection (d) of this section 7.01); provided that, in any case, a willful breach shall be deemed to cause such condition as to be incapable of being satisfied for purposes of this section 7.01(b);
(c) by either Party, if there shall be any Order that is final and nonappealable preventing the consummation of the Merger, except if the Party relying on such Order to terminate this Agreement has not complied with its obligations under section 5.05(b) of this Agreement; or
(d) by either Party, if: (i) if JPF shall have not paid for its subscription for shares of TetriDyn Stock in accordance with the Investment Agreement by March 18, 2015; (Aii) the Sale Department shall not have issued the Permit by May 15, 2015; or (iii) notwithstanding the Department having issued the Permit, the Merger shall not have been consummated on or before September 30, 2011 (the “Outside Date”)within 20 days thereafter; provided, however, thatthat this Agreement may be extended by written notice of either Party to the other to a date not later than May 15, 2015, if the Sale Merger shall not have occurred been consummated as a direct result of such notifying Party having failed by September 30May 15, 20112015, and a New Merger Agreement shall have been executed, then, to receive all required regulatory approvals or consents respecting the Outside Date shall become November 30, 2011; and (B) Merger. The right of the Party seeking Parties to terminate this Agreement pursuant to this Section 7.1(b)(i) section 7.01 shall not have breached its obligations remain operative and in full force and effect regardless of any material respect under this Agreement in investigation made by or on behalf of either Party, any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by person controlling such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurateParty, or (y) APL shall have breached or failed to perform any of its covenants officers, directors, managers, partners, representatives, or agreements set forth in agents, whether prior to or after the execution of this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.
Appears in 3 contracts
Samples: Merger Agreement (Ocean Thermal Energy Corp), Merger Agreement (Ocean Thermal Energy Corp), Merger Agreement (Tetridyn Solutions Inc)
Termination. This Executive’s employment under this Agreement may be terminated and during the Sale may be abandoned at Employment Term without any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent breach of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL or Atlas:
(i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) 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 Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein circumstances described in Sections 5.1, 5.2 and 5.3 and shall be untrue or inaccurate on terminate automatically under the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth circumstances described in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth5.4, inaccuracy, breach or failure subject to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate Agreement:
5.1 Employment may be terminated by Employer with Cause as determined by the Management Board of Employer. “Cause,” as used herein, means any of the following: (i) any material breach of this Agreement by Executive which, if curable, has not been cured within 20 days after Executive has been given written notice of the need to cure such breach, or which breach, if previously cured, recurs; (ii) unauthorized use or disclosure of Confidential Information, as defined in this Agreement; (iii) Executive’s continued willful and intentional failure to satisfactorily perform Executive’s essential responsibilities, in the good faith discretion of the Management Board, provided that Executive has been given written notice of the need to cure the failure within 20 days and cure has not been effected within that time period, or which failure, if previously cured, recurs, except to the other Partiesextent that such failure is caused by Total Disability, as defined in this Agreement; (iv) material failure of Executive to comply with rules, policies or procedures of Employer as they may be amended from time to time, provided that Executive has been given written notice of the need to cure the failure, if such failure is curable, within 20 days and cure has not been effected within that time period, or which failure, if previously cured, recurs; (v) dishonesty, fraud or gross negligence related to the business; (vi) personal conduct that is materially detrimental to the business; or (vii) conviction of or plea of nolo contendere to a felony.
Appears in 2 contracts
Samples: Employment Agreement (Applied Precision, Inc.), Employment Agreement (Applied Precision, Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Closing:
(a) by mutual written consent of APL Purchaser and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orall Sellers;
(b) by either APL Purchaser upon written notice to the Equityholders’ Representative if the Closing has not occurred, or Atlas:
(i) if (A) it becomes reasonably apparent that any of the Sale shall conditions set forth in Section 9.1 or Section 9.2 cannot have been consummated be fulfilled, by 5:00 p.m. Eastern Time, on or before September 30March 31, 2011 2014 (the “Outside DateTime”); provided, however, that, if provided that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i11.1(b) shall not have breached its obligations in be available to Purchaser if Purchaser’s failure to perform any material respect covenant or agreement under this Agreement in any manner that shall have proximately caused has been a principal cause of, or resulted in results in, the failure of the Sale Closing to have been consummated by such date; oroccur on or before the Outside Time;
(iic) by the Equityholders’ Representative, upon written notice to Purchaser if an Order the Closing has not occurred, or if it becomes reasonably apparent that any of the conditions set forth in Section 9.1 or Section 9.3 cannot be fulfilled, by the Outside Time; provided that the right to terminate this Agreement under this Section 11.1(c) shall not be available to the Equityholders’ Representative if the Sellers’ or any of the Acquired Companies’ failure to perform any covenant or agreement under this Agreement has been a principal cause of, or results in, the failure of the Closing to occur on or before the Outside Time;
(d) by Purchaser upon written notice to the Equityholders’ Representative in the event that at any time after the date of this Agreement, there shall have been entered occurred an Acquired Company Material Adverse Effect;
(e) by either Purchaser or the Equityholders’ Representative, upon written notice to the other party if a Governmental Entity of competent jurisdiction shall have issued a nonappealable final order, decree or ruling or taken any other nonappealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation transactions contemplated hereby;
(f) by Purchaser, upon written notice to the Equityholders’ Representative, if there has been a breach of any representation or warranty or failure to perform any covenant or agreement on the part of any of the Sale and such Order shall have become final and non-appealable, provided that Acquired Companies or the Party seeking to terminate Sellers set forth in this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) or if (A) (x) any of the representations or warranties of APL herein shall be untrue the Acquired Companies or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements Sellers set forth in this Agreement, in each case such that Agreement shall fail to be true) which breach or failure (i) would cause any condition of the conditions set forth in Section 6.2(a9.2(a) or 6.2(bSection 9.2(b) would not to be satisfied at Closing; and (Bii) shall not have been cured within thirty (30) days following receipt by the Equityholders’ Representative of written notice of such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Datefrom Purchaser; or
(iig) by the Equityholders’ Representative, upon written notice to Purchaser, if there has been a breach of any representation or warranty or failure to perform any covenant or agreement on the Merger Agreement is terminated (provided that, part of Purchaser set forth in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, or if (i)(A) any of the representations or and warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements Purchaser set forth in this Agreement, in each case such that Agreement shall fail to be true) which breach or failure (i) would cause any condition of the conditions set forth in Section 6.3(a9.3(a) or 6.3(bSection 9.3(b) would not to be satisfied at Closingsatisfied, and (ii) shall not have been cured within thirty (30) days following receipt by Purchaser of written notice of such untruth, inaccuracy, breach or failure to perform is not curable by from the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesEquityholders’ Representative.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Gsi Group Inc)
Termination. This Agreement may be terminated terminated, and the Sale Merger contemplated hereby may be abandoned abandoned, at any time prior to the Closing (Effective Time, whether before or after approval of matters presented in connection with any termination the Merger by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the stockholders of the Company:
(a) by mutual written consent of APL Parent, Sub and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company:
(i) if (A) the Sale Merger shall not have been consummated on or before by September 30, 2011 (the “Outside Date”)2000 for any reason; provided, however, that, that if the Sale shall not have occurred principal cause of the parties' inability to consummate the Merger by September 30, 20112000 is a Restraint, an inability to obtain clearance under the HSR Act or another United States, state, local or foreign governmental regulatory matter, such date shall automatically (and without further action by the parties) be extended to November 15, 2000; provided, further, that the right to terminate this Agreement under this Section 7.1(b)(i) shall not be available to any party whose action or failure to act has been a New principal cause of or resulted in the failure of the Merger Agreement to occur on or before such date and such action or failure to act constitutes a willful and material breach of this Agreement;
(ii) if any Restraint having any of the effects set forth in Section 6.1(d) shall be in effect and shall have become final and nonappealable;
(iii) if the Stockholder Approval shall not have been executed, thenobtained at the Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof; or
(iv) if prior to the Effective Time, the Outside Date shall become November 30Board of Directors of the Company has determined under Section 4 hereof that as a result of the receipt of a Superior Proposal, 2011it is necessary for the Board to terminate this Agreement; and (B) provided, however, that the Party seeking to Company may not terminate this Agreement pursuant to this Section 7.1(b)(i7.1(b)(iv) shall not have breached its obligations in any material respect unless no later than two days thereafter the Company pays to Parent the amounts specified under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; or
(iiSection 5.8(b) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealable, provided that the Party seeking to terminate this Agreement pursuant to this the terms of such Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
5.8(b). -50- 55 (c) by Atlas:
(i) Parent if (A) (x) any the Board of Directors of the representations Company or warranties any committee thereof shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of APL herein shall be untrue the Merger or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccuratefailed to reconfirm its recommendation within 15 business days after a written request by Parent following a Takeover Proposal to do so, or (y) APL shall have breached approved or failed to perform recommended any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.Takeover Proposal;
Appears in 2 contracts
Samples: Merger Agreement (Hadco Corp), Merger Agreement (Irvine Horace H Ii)
Termination. This Agreement may be terminated and the Sale may be Transactions abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Reverse Merger Effective Time:
(a) by the mutual written consent of APL the Company and Atlas, Parent duly authorized by action each of the APL Board and Atlas’s board their respective Boards of directors, respectivelyDirectors; or
(b) by either APL of the Company or AtlasParent:
(i) if (A) the Sale Reverse Merger and, if applicable, the Forward Merger, shall not have been consummated on or before September 30the Walk-Away Date, 2011 (unless otherwise extended by the “Outside Date”); mutual written consent of the parties hereto, provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under 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 be available to a party if the failure of the Sale Reverse Merger and, if applicable, the Forward Merger, to have been consummated by on or before the Walk-Away Date was primarily due to the failure of such date; orparty to perform any of its obligations under this Agreement;
(ii) if an Order any Restraint (A) having the effect set forth in Section 6.1(e) or (B) having the effect of granting or implementing any relief referred to Section 6.1(h) shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale be in effect and such Order shall have become final and non-appealablenonappealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii) shall have complied with its obligations pursuant not be available to Section 5.1 with respect a party if such Restraint was primarily due to the failure of such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed party to perform any of its covenants or agreements set forth in obligations under this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or;
(iiiii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of Company Stockholder Approval shall not have been obtained at the termination of the Merger Agreement); orCompany Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof;
(div) by APL, if the Parent Stockholder Approval shall not have been obtained at the Parent Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof;
(i)(Av) any of if the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth conditions specified in Section 6.3(a6.1(i) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice satisfied or becomes incapable of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.satisfied; and
Appears in 2 contracts
Samples: Merger Agreement (Seabulk International Inc), Merger Agreement (Seacor Holdings Inc /New/)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, by APL also being an effective termination action taken by APL Sub the terminating party or parties, and any termination by Atlas also being an effective termination by ATN):except as provided below, whether before or after the requisite approvals of the stockholders of the Company:
(a) by mutual written consent duly authorized by the Boards of APL Directors of each of Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL the Company or Atlas:
(i) Parent if (A) the Sale Merger shall not have been consummated on or before September 30by October 2, 2011 2006 (the “Outside End Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(b) shall not have breached its obligations in be available to any material respect under this Agreement in any manner that shall have proximately caused party whose action or failure to act has been a principal cause of or resulted in the failure of the Sale Merger to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; provided further that, in the event that the conditions set forth in Sections 7.1(c) or 7.1(d) above shall not have been satisfied by October 2, 2006, and all other conditions set forth in Article VII have been satisfied (other than those conditions that by their terms are to be satisfied or waived at Closing) either Parent or the Company may unilaterally extend the End Date until December 2, 2006 upon written notice to the other by October 2, 2006, in which case the Termination Date shall be deemed for all purposes to be December 2, 2006;
(c) by either the Company or Parent if a Governmental Entity shall have issued an order, decree or ruling or taken any other action (including the failure to have been consummated by such date; or
(ii) if taken an Order shall have been entered action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation Merger, which order, decree, ruling or other action is final and nonappealable;
(d) by either the Company or Parent if the required approval of the Sale stockholders of the Company contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at a meeting of the Company stockholders duly convened therefor or at any adjournment thereof;
(e) by Parent (at any time prior to the adoption and such Order approval of this Agreement and the Merger by the required vote of the stockholders of the Company) if a Triggering Event with respect to the Company shall have occurred;
(f) by the Company, (i) upon a breach of any representation, warranty, covenant or agreement on the part of Parent set forth in this Agreement, or if any representation or warranty of Parent shall have become final and non-appealableuntrue, in either case such that the conditions set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided that if such inaccuracy in Parent’s representations and warranties or breach by Parent is curable by Parent prior to the Party seeking End Date through the exercise of reasonable efforts, then the Company may not terminate this Agreement under this Section 8.1(f) prior to 20 days following the receipt of written notice from the Company to Parent of such breach, provided that Parent continues to exercise all reasonable efforts to cure such breach through such 20 day period (it being understood that the Company may not terminate this Agreement pursuant to this Section 7.1(b)(iiparagraph (f) if it shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of materially breached this Agreement or shall thereafter become untrue or inaccurate, if such breach by Parent is cured within such 20 day period) or (yii) APL shall have breached prior to approval of the Merger and this Agreement by the stockholders of the Company in accordance with this Agreement, in accordance with, and subject to the terms and conditions of, Section 6.3(d)(A); and
(g) by Parent, upon a breach of any representation, warranty, covenant or failed to perform any agreement on the part of its covenants or agreements the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in each either case such that any condition the conditions set forth in Section 6.2(a7.2(a) or 6.2(bSection 7.2(b) would not be satisfied at Closing; and (B) as of the time of such untruth, inaccuracy, breach or failure to perform as of the time such representation or warranty shall have become untrue, provided, that if such inaccuracy in the Company’s representations and warranties or breach by the Company is not curable by the Outside Date; or
Company prior to the End Date through the exercise of reasonable efforts, then Parent may not terminate this Agreement under this Section 8.1(g) prior to 20 days following the receipt of written notice from Parent to the Company of such breach, provided that the Company continues to exercise all reasonable efforts to cure such breach through such 20 day period (ii) if the Merger Agreement is terminated (provided that, in order to it being understood that Parent may not terminate this Agreement pursuant to this subclause paragraph (g) if it shall have materially breached this Agreement or if such breach by the Company is cured within such 20 day period). For the purposes of this Agreement, a “Triggering Event,” with respect to the Company, shall be deemed to have occurred if: (i) its Board of Directors or any committee thereof shall for any reason have effected a Change of Recommendation, (ii), Atlas must exercise ) it shall have failed to include in the Proxy Statement the recommendation of its right to do so within thirty days Board of Directors in favor of the termination adoption and approval of the Agreement and the approval of the Merger, (iii) its Board of Directors fails to reaffirm (publicly, if so requested) its recommendation in favor of the adoption and approval of the Agreement and the approval of the Merger Agreement); or
within ten (d10) by APLBusiness Days after Parent requests in writing that such recommendation be reaffirmed, provided that, if such ten (i)(A10) any of the representations or warranties of Atlas herein shall be untrue or inaccurate Business Day period would end on a date that is after the date of this Agreement the Stockholders’ Meeting, such reaffirmation must be made no later than two calendar days prior to the date of the Stockholders’ Meeting, (iv) its Board of Directors or any committee thereof shall thereafter become untrue have approved or inaccuraterecommended any Acquisition Proposal, (v) the Company shall have entered into any letter of intent or similar document or any agreement, contract or commitment accepting any Acquisition Proposal; or (Bvi) Atlas a tender or ATN exchange offer relating to its securities shall have breached been commenced by a Person unaffiliated with Parent (and shall not have been withdrawn prior to the earlier of (x) ten (10) Business Days after such tender or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, exchange offer is first published and (iiy) the time at which the Company shall have first sent or given to its security holders a position on such untruth, inaccuracy, breach tender or failure exchange offer) and the Company shall not have sent or given to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement its security holders pursuant to this Section 7.1 shall give notice Rule 14e-2 promulgated under the Exchange Act, within ten (10) Business Days after such tender or exchange offer is first published, a statement disclosing that the Board of Directors of the Company recommends rejection of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiestender or exchange offer.
Appears in 2 contracts
Samples: Merger Agreement (Quantum Corp /De/), Merger Agreement (Advanced Digital Information Corp)
Termination. This Agreement may be terminated and the Sale may be Transactions abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time:
(a) by the mutual written consent of APL the Company and Atlas, Parent duly authorized by action each of the APL Board and Atlas’s board their respective Boards of directors, respectivelyDirectors; or
(b) by either APL of the Company or AtlasParent:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30, 2011 the date that is twelve months after the date hereof (the “Outside Walk-Away Date”); , provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under 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 be available to a party if the failure of the Sale Merger to have been consummated by on or before the Walk-Away Date was primarily due to the failure of such date; orparty to perform any of its obligations under this Agreement;
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting any Restraint having the consummation of the Sale effect set forth in Section 6.1(c) is in effect and such Order shall have become final and non-appealablenonappealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii) shall not be available to a party if such Restraint was primarily due to the failure of such party to perform any of its obligations under this Agreement; or
(iii) if the Company Stockholder Approval shall not have complied been obtained at the Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(iii) shall not be available to the Company if it has failed to comply in all material respects with its obligations pursuant to under Section 5.1 with respect to such Orderor 5.3; or
(c) by AtlasParent:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (or if any of the representations or warranties of the Company set forth in this Agreement shall fail to be true), which breach or failure (A) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 6.2(a) or (b) and (B) is incapable of being cured, or is not cured, by the Company within 30 business days following receipt of written notice from Parent of such breach or failure; or
(ii) if a Company Adverse Recommendation Change shall have occurred; or
(d) by the Company:
(i) if Parent shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (or if any of the representations or warranties of Parent set forth in this Agreement shall fail to be true), which breach or failure (A) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 6.3(a) or (b) and (B) is incapable of being cured, or is not cured, by Parent within 30 business days following receipt of written notice from the Company of such breach or failure;
(ii) prior to obtaining the Company Stockholder Approval if, concurrently with such termination, the Company enters into a definitive Company Acquisition Agreement providing for a Superior Proposal in accordance with Section 5.3 and, in accordance with Section 7.3, the Company pays to Parent the Company Termination Fee; or
(iii) either (A) the waiting period applicable to the consummation of the Merger under the HSR Act shall not have expired or been terminated as of the Walk-Away Date, or (B) any statute, order, decree, ruling, judgment or injunction shall have been enacted, entered, promulgated, or enforced by any Governmental Authority of competent jurisdiction, and shall continue to be in effect as of the date of termination of this Agreement by the Company pursuant to this Section 7.1(d)(iii), (x) making illegal or otherwise prohibiting the consummation of the Merger substantially on the terms contemplated by this Agreement (including, by way of example and not by limitation, an order or decree by any Governmental Authority of competent jurisdiction permanently enjoining the consummation of the Merger, whether or not such order or decree has become final and nonappealable), or (y) delaying past the Walk-Away Date the consummation of the Merger substantially on the terms contemplated by this Agreement; provided, however, that the right of the Company to terminate this Agreement under this Section 7.1(d)(iii) shall only be available to the Company if (I) the Company Stockholder Approval shall have been obtained in accordance with applicable Law and the Company Charter Documents, (II) there shall not have occurred and be continuing at such time a Company Material Adverse Effect (which term, for the limited purpose of this Section 7.1(d)(iii), shall exclude any statute, order, decree, ruling, judgment or injunction of the type described in clause (B) of this Section 7.1(d)(iii)) and (III) there shall not have occurred and be continuing at such time any breach or failure to perform by the Company of any of its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure would (if it occurred or was continuing as of the Closing Date) give rise to the failure to be satisfied of a condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (iib), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.
Appears in 2 contracts
Samples: Merger Agreement (EnergySolutions, Inc.), Merger Agreement (Duratek Inc)
Termination. This Agreement may be terminated and the Sale may be Transactions abandoned at any time prior to the Closing Effective Time, whether before or after receipt of the Company Stockholder Approval (with any termination by APL Parent also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNMerger Sub):
(a) by the mutual written consent of APL the Company and Atlas, by action of the APL Board and Atlas’s board of directors, respectivelyParent; or
(b) by either APL of the Company or AtlasParent:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30December 2, 2011 (as it may be extended pursuant to the following proviso, the “Outside Walk-Away Date”); provided, however, that, that if the Sale shall Closing has not have occurred by September 30such date and on such date the conditions set forth in Section 6.1(b) have not been satisfied or waived and each of the other conditions to consummation of the Merger set forth in Article VI has been satisfied, 2011waived or remains capable of satisfaction, and a New Merger Agreement shall have been executed, then, then the Outside Walk-Away Date shall become November 30automatically be extended to March 2, 20112012; and (B) provided, further, that the Party seeking right 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 be available to a party if the failure of the Sale Merger to have been consummated by on or before the Walk-Away Date was primarily due to the failure of such date; orparty to perform any of its obligations under this Agreement;
(ii) if an Order any Restraint having the effect set forth in Section 6.1(c) shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale be in effect and such Order shall have become final and non-appealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii) shall have complied not be available to a party that has failed to comply with its obligations pursuant to under Section 5.1 5.4 in any material respect with respect to such OrderRestraint;
(iii) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting; or
(c) by Atlas:Parent,
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) cannot be cured by the Company by the Walk-Away Date or, if capable of being cured, shall not have been cured within 30 calendar days following receipt of written notice from the Merger Agreement is terminated (provided that, in order Parent stating the Parent’s intention to terminate this Agreement pursuant to this subclause Section 7.1(c)(i) and the basis for such termination; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(i) if it is then in material breach of any representation, warranties, covenants or other agreements hereunder;
(ii), Atlas must exercise its right to do so within thirty days ) the Board of Directors of the termination Company: (A) shall have effected a Company Adverse Recommendation Change or (B) the Company fails to include the Company Board Recommendation in the Proxy Statement;
(iii) if the Board of Directors of the Merger AgreementCompany shall have failed to reject (and, if requested by Parent, publicly recommend against) any Takeover Proposal within ten (10) Business Days after such Takeover Proposal is publicly announced or otherwise becomes publicly known;
(iv) if a tender or exchange offer relating to Company Common Stock shall have been commenced by a Person unaffiliated with Parent, and the Company shall not have publicly disclosed within ten (10) Business Days after such tender or exchange offer is first commenced a statement that the Company Board recommends rejection of such tender or exchange offer;
(v) if the Board of Directors of the Company fails to reaffirm publicly the Company Board Recommendation within ten (10) Business Days of Parent’s written request for such reaffirmation (provided, that (A) such reaffirmation may include such additional disclosures as would reasonably be necessary to satisfy the fiduciary duties of the Board of Directors of the Company or comply with applicable Law and (B) Parent shall be entitled to make such a written request for reaffirmation only once for each Takeover Proposal and once for each material amendment to such Takeover Proposal); or
(d) by APL, the Company,
(i) if (i)(A) any of the representations Parent or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Merger Sub shall have breached or failed to perform any of their respective its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.3(a) or 6.3(b(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach cannot be cured by Parent or failure to perform is not curable Merger Sub by the Outside Date. The Party desiring Walk-Away Date or, if capable of being cured, shall not have been cured within 30 calendar days following receipt of written notice from the Company stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination 7.1(d) and the provisions of this Section 7.1 being relied on basis for such termination; provided that, Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(d) if it is then in material breach of any representation, warranties, covenants or other agreements hereunder; or
(ii) in order to enter into a transaction that is a Superior Proposal, if prior to the other Partiesreceipt of the Company Stockholder Approval, (A) the Company complies with the procedures set forth in Section 5.3(d) with respect to a Superior Proposal and (B) prior to or concurrently with such termination, the Company pays the Termination Fee due under Section 7.3(d)(iii).
Appears in 2 contracts
Samples: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Cephalon Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub Effective Time, and any termination by Atlas also being an effective termination by ATN):except as provided below, whether before or after the requisite approvals of either the stockholders of the Company or shareholders of Parent:
(a) by mutual written consent of APL Parent, Merger Sub and Atlasthe Company, duly authorized by action the Boards of Directors of each of Parent, Merger Sub and the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL the Company or AtlasParent in any of the following circumstances:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30by December 31, 2011 2007 (the “Outside End Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside End Date shall become November 30be extended to March 31, 20112008 upon written notice of either the Company to Parent and Merger Sub or Parent to the Company, which notice shall be delivered on or within ten (10) days before December 31, 2007 if any of the conditions specified in Section 6.1(e) have not been satisfied on the date of such notice; and (B) provided, further, that the Party seeking right to terminate or extend this Agreement pursuant to under this Section 7.1(b)(i) shall not have breached its obligations in be available to any material respect under this Agreement in any manner that shall have proximately caused party whose action or failure to act has been a principal cause of or resulted in the failure of the Sale Merger to have been consummated by occur on or before such datedate and such action or failure to act constitutes a material breach of this Agreement; or
(ii) if an Order a Governmental Entity of competent jurisdiction shall have been entered issued an order, decree or ruling or taken any other action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become Merger, which order, decree, ruling or other action is final and non-appealablenonappealable, provided that the Party party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have has complied with its obligations pursuant under Section 5.6(c) to Section 5.1 with respect to such Orderhave the applicable order, decree or ruling vacated or otherwise lifted or removed; or
(iii) if the required approval of the stockholders of the Company of the Company Voting Proposal contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at a meeting of the Company stockholders duly convened therefor or at any adjournment thereof; or
(iv) if the required approval of the shareholders of Parent of the Parent Voting Proposal contemplated by this Agreement shall not have been obtained by reason of the failure to obtain the required vote at a meeting of the Parent shareholders duly convened therefor or at any adjournment or postponement thereof.
(c) by AtlasPxxxxx in any of the following circumstances:
(i) if (A) (x) in the event of a breach of any representation, warranty, covenant or agreement on the part of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in each either case such that any condition the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied at Closing; and (B) as of the time of such untruth, inaccuracy, breach or failure to perform as of the time such representation or warranty shall have become untrue; provided, however, that if such inaccuracy in the Company’s representations and warranties or breach by the Company is not curable by the Outside Company prior to the End Date, then Parent may not terminate this Agreement under this Section 7.1(c)(i) prior to 30 days following the Company’s receipt of written notice from Parent of such breach, provided the Company continues to exercise reasonable best efforts to cure such breach through such 30-day period (it being understood that Parent may not terminate this Agreement pursuant to this subsection (c)(i) if it shall have materially breached this Agreement or if such breach by the Company is cured during the aforementioned cure period); or
(ii) if any Effect, either individually or in the Merger Agreement aggregate, shall have occurred or otherwise arisen since the date hereof that has had, or would reasonably be expected to have, a Material Adverse Effect on the Company and (x) such Material Adverse Effect is terminated not capable of being cured prior to the End Date or (provided that, in order y) such Material Adverse Effect is not cured prior to the earlier of the End Date and 30 days following the receipt of written notice from Parent to the Company of such Material Adverse Effect (it being understood that Parent may not terminate this Agreement pursuant to this subclause subsection (iic)(ii) if it shall have materially breached this Agreement or if such Material Adverse Effect is cured during the aforementioned cure period), Atlas must exercise its right ; or
(iii) at any time prior to do so within thirty days the approval of the termination Company Voting Proposal by the stockholders of the Merger Agreement)Company, if a Triggering Event with respect to the Company shall have occurred; or
(d) by APL, if (i)(A) the Company in any of the representations following circumstances:
(i) in the event of a breach of any representation, warranty, covenant or warranties of Atlas herein shall be untrue or inaccurate agreement on the date part of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements Parent set forth in this Agreement, or if any representation or warranty of Parent shall have become untrue, in each either case such that any condition the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied at Closing, and (ii) as of the time of such untruth, inaccuracy, breach or failure to perform as of the time such representation or warranty shall have become untrue; provided, however, that if such inaccuracy in Parent’s representations and warranties or breach by Parent is not curable by Parent prior to the Outside End Date. The Party desiring , then the Company may not terminate this Agreement under this Section 7.1(d)(i) prior to 30 days following Parent’s receipt of written notice from the Company of such breach, provided Parent continues to exercise reasonable best efforts to cure such breach through such 30-day period (it being understood that the Company may not terminate this Agreement pursuant to this Section 7.1 subsection (d)(i) if it shall give have materially breached this Agreement or if such breach by Parent is cured during the aforementioned cure period); or
(ii) if any Effect, either individually or in the aggregate, shall have occurred or otherwise arisen since the date hereof that has had, or would reasonably be expected to have, a Material Adverse Effect on Parent and (x) such Material Adverse Effect is not capable of being cured prior to the End Date or (y) such Material Adverse Effect is not cured prior to the earlier of the End Date and 30 days following the receipt of written notice from the Company to Parent of such termination and Material Adverse Effect (it being understood that the provisions of this Section 7.1 being relied on to Company may not terminate this Agreement pursuant to this subsection (d)(ii) if it shall have materially breached this Agreement or if such Material Adverse Effect is cured during the aforementioned cure period); or
(iii) if the Board of Directors of the Company shall have authorized the Company to enter into a definitive agreement with respect to a Superior Offer pursuant to and in compliance with Section 5.3(d) and the Company shall have paid Parent the Termination Fee described in Section 7.3(b), provided that the Company enters into such definitive agreement promptly after the termination of this Agreement pursuant to this Section 7.1(d)(iii). For the purposes of this Agreement, a “Triggering Event,” with respect to the other PartiesCompany, shall be deemed to have occurred if: (i) there is a Company Change of Recommendation; (ii) if the Board of Directors of the Company shall have approved, endorsed, or recommended, or authorized the Company to enter into a definitive agreement with respect to, a Superior Offer pursuant to and in compliance with Section 5.3(d) or the Company shall have entered into any letter of intent or similar document or any agreement, contract or commitment accepting any Superior Offer; (iii) a tender or exchange offer relating to its securities shall have been commenced by a Person unaffiliated with Parent, and the Company shall not have sent to its security holders pursuant to Rule 14e-2 promulgated under the Exchange Act, within 10 Business Days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Board of Directors of the Company recommends rejection of such tender or exchange offer; or (iv) the Board of Directors of the Company shall have resolved to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Flextronics International Ltd.), Merger Agreement (Solectron Corp)
Termination. This Agreement may be terminated and the Sale Mergers may be abandoned at any time prior to the Closing (with notwithstanding any termination approval of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNthe shareholders of the Company or Parent):
(a) by mutual written consent of APL and Atlas, by action agreement of the APL Board Company and Atlas’s board of directors, respectively; orParent;
(b) by either APL Parent or Atlas:
(i) the Company upon prior written notice to the other party, if (A) the Sale shall Closing Date has not have been consummated occurred on or before September 30March 6, 2011 2019 (the “Outside End Date”); provided, however, thatthat the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose (or whose Affiliate’s) material breach of any provision of this Agreement has been the cause of, or resulted in, the failure of the Mergers to be consummated by the End Date;
(c) by Parent or the Company upon prior written notice to the other party, if any Governmental Entity of competent jurisdiction shall have issued a final and non-appealable Order or taken any other action permanently enjoining, restraining or otherwise prohibiting the consummation of the Transactions; provided, however, that the party seeking to terminate this Agreement shall have used its reasonable best efforts to have such Order lifted if and to the extent required by Section 5.5;
(d) by Parent or the Company upon written notice to the other party, if the Sale Company Shareholder Approval or the Parent Shareholder Approval have not been obtained upon a vote taken at the Company Shareholders Meeting or the Parent Shareholders Meeting, as applicable, or at any adjournment or postponement thereof at which the Company Merger and the Parent Share Issuance, as applicable, have been voted upon;
(e) by Parent, upon written notice to the Company, in the event of a breach by any Company Party of any representation, warranty, covenant or other agreement contained herein such that a condition set forth in Section 6.2 would be incapable of being satisfied by the End Date; provided, however, that Parent shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking be entitled to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(e) shall not have breached if any Parent Party is in breach of its obligations in any material respect under this Agreement in any manner such that shall have proximately caused or resulted the Company would be entitled to terminate this Agreement pursuant to Section 7.1(f);
(f) by the Company, upon written notice to Parent, in the failure event of a breach by any Parent Party of any representation, warranty, covenant or other agreement contained herein such that a condition set forth in Section 6.3 would be incapable of being satisfied by the Sale to have been consummated by such dateEnd Date; or
(ii) if an Order shall have been entered permanently restrainingprovided, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealablehowever, provided that the Party seeking Company shall not be entitled to terminate this Agreement pursuant to this Section 7.1(b)(ii7.1(f) shall have complied with if any Company Party is in breach of its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of under this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) Parent would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order entitled to terminate this Agreement pursuant to this subclause Section 7.1(e);
(g) by Parent, upon written notice to the Company, if prior to obtaining the Company Shareholder Approval the Company Board shall have (i) effected a Change in Recommendation or (ii)) any Acquired Company enters into any Alternative Acquisition Agreement;
(h) by the Company, Atlas must exercise its right upon written notice to do so within thirty days Parent, if prior to the Company Shareholder Approval the Company Board shall have effected a Change in Recommendation in respect of a Superior Proposal in accordance with Section 5.3 and the Company Board has approved, and concurrently with such termination, the Company enters into a definitive agreement providing for the implementation of such Superior Proposal, but only if the Company is not then in breach of Section 5.3; provided that such termination of shall not be effective until the Merger AgreementCompany has paid the Company Termination Fee in accordance with Section 7.3(b); or
(di) by APLthe Company, upon written notice to Parent, if (i)(A) any of prior to obtaining the representations or warranties of Atlas herein shall be untrue or inaccurate on Parent Shareholder Approval the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Parent Board shall have breached (i) effected a Change in Recommendation or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesany Parent Company enters into any Alternative Acquisition Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Pebblebrook Hotel Trust), Merger Agreement (LaSalle Hotel Properties)
Termination. This Agreement may be terminated by written notice and the Sale may be Transactions abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether before or after receipt of the Company Shareholder Approval:
(a) by the mutual written consent of APL the Company and Atlas, Parent duly authorized by action each of the APL Board and Atlas’s board their respective Boards of directors, respectively; orDirectors;
(b) by either APL of the Company or AtlasParent:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30, 2011 the 150th day following the date of this Agreement (the “Outside Walk-Away Date”); provided, however, that, that if on the Sale Walk-Away Date the condition to Closing set forth in Section 6.1(b) shall not have occurred by September 30been satisfied but all other conditions to Closing shall be satisfied or shall be capable of being satisfied, 2011, and a New Merger Agreement shall have been executed, then, then the Outside Walk-Away Date shall become November 30be extended to the 180th day following the date of this Agreement; provided further, 2011; and (B) however, that the Party seeking right to terminate this Agreement pursuant to under 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 be available to a party if the failure of the Sale Merger to have been consummated by on or before the Walk-Away Date was primarily due to the failure of such date; orparty to perform any of its obligations under this Agreement;
(ii) if an Order any Restraint having the effect set forth in Section 6.1(c) shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale be in effect and such Order shall have become final and non-appealable; provided, provided however, that the Party seeking to terminate party terminating this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order5.4; or
(iii) if (A) the Company Shareholder Approval shall not have been obtained at the Company Shareholders Meeting duly convened therefor or any adjournment or postponement thereof or (B) the number of shares of Company Common Stock represented in person or by proxy at the Company Shareholders Meeting or any such adjournment or postponement shall be less than the minimum number of shares of Company Common Stock necessary to constitute a quorum for the transaction of business at the Company Shareholders Meeting;
(c) by Atlas:By Parent,
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is cannot curable be cured by the Outside DateWalk-Away Date or, if curable, has not been cured in all material respects prior to the earlier to occur of (x) the Walk-Away Date and (y) the date that is 30 days after written notice thereof shall have been given to the Company; or
(ii) if (A) the Board of Directors of the Company (x) shall have made a Company Adverse Recommendation Change or (y) causes the Company to enter into a Company Acquisition Agreement with respect to a Takeover Proposal, or (B) either (I) the Company shall have failed to duly notice, convene and hold the Company Shareholders Meeting prior to the time required by Section 5.1(b), or (II) the minimum number of shares of Company Common Stock necessary to constitute a quorum for the transaction of business shall have been represented in person or by proxy at the Company Shareholders Meeting, and the Company shall have failed to take a vote of shareholders on the Merger Agreement is terminated (provided that, in order to terminate and this Agreement pursuant at such Company Shareholders Meeting, or (C) at any time following receipt of a Takeover Proposal, the Company’s Board of Directors shall have failed to this subclause (ii), Atlas must exercise its right reaffirm the Company Board Recommendation as promptly as practicable after receipt of any written request to do so within thirty days from Parent (but in any event prior to the earlier of (x) the date prior to the date of the termination Stockholders Meeting and (y) ten Business Days after the Company’s receipt of such Takeover Proposal); or
(iii) if a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 50% or more of the Merger Agreement)outstanding shares of Company Common Stock is publicly disclosed (other than by Parent or an affiliate of Parent) and the Company’s Board of Directors either recommends that the shareholders of the Company tender their shares in such tender offer or exchange offer or fails prior to the earlier of (x) the date prior to the date of the Stockholders Meeting and (ii) ten Business Days after the commencement of such tender offer or exchange offer to unequivocally recommend that the shareholders of the Company not tender their shares in such tender offer or exchange offer; or
(d) by APL, By the Company,
(i) if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Parent shall have breached or failed to perform any of their respective its representations, warranties, covenants or other agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.3(a6.3 and (B) or 6.3(b) would cannot be satisfied at Closing, and (ii) such untruth, inaccuracy, breach cured or failure to perform is shall not curable have been cured in all material respects within 30 days after written notice thereof shall have been received by the Outside Date. The Party desiring to terminate this Agreement Parent (for purposes of clarity, a termination by the Company pursuant to this Section 7.1 7.1(d)(i) shall give notice not, in and of such termination itself, constitute a Company Adverse Recommendation Change); or
(ii) if it enters into a definitive Company Acquisition Agreement providing for a Superior Proposal in compliance with Section 5.3(d) and pays the provisions of this Termination Fee pursuant to Section 7.1 being relied on to terminate this Agreement to the other Parties7.3(a).
Appears in 2 contracts
Samples: Merger Agreement (Medco Health Solutions Inc), Merger Agreement (Polymedica Corp)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing Effective Time by action taken or authorized by the Board of Directors of the terminating party or parties, which in the case of Sections 7.1(a), (with any termination by APL also being an effective termination by APL Sub b)(i) and any termination by Atlas also being an effective termination by ATN):(b)(ii), (c) and (d), may be taken before or after the Parent Stockholder Approval or the Company Stockholder Approval, as the case may be:
(a) by mutual written consent of APL the Company and AtlasParent, by action if the Board of the APL Board and Atlas’s board Directors of directors, respectively; oreach so determines;
(b) by written notice of either APL the Company or AtlasParent:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30by February 28, 2011 2005 (the “"Outside Date”"); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i) shall not have breached its obligations in be available to any material respect party whose failure to fulfill any obligation under this Agreement in any manner that shall have proximately caused has been the primary cause of, or resulted in in, the failure of to consummate the Sale merger prior to have been consummated by such date; orthe Outside Date;
(ii) if an Order a Governmental Entity of competent jurisdiction shall have been entered issued an order, decree or ruling or taken any other action (including the failure to have taken an action), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become Merger, which order, decree, ruling or other action is final and non-appealablenonappealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii) shall not be available to a party which has not used its reasonable best efforts to resist, resolve or lift as applicable (as contemplated by Section 5.4) any such order, decree, ruling or other action;
(iii) if the Parent Stockholder Approval shall not have complied with its obligations pursuant been obtained at the Parent Stockholders' Meeting, or at any adjournment or postponement thereof, at which the vote was taken; provided, however, that the right to terminate this Agreement under this Section 5.1 with respect 7.1(b)(iii) shall not be available to Parent if the failure to obtain the Parent Stockholder Approval shall have been caused by the action or failure to act of Parent and such Orderaction or failure to act constitutes a material breach by Parent of this Agreement;
(iv) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders' Meeting, or at any adjournment or postponement thereof, at which the vote was taken; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(iv) shall not be available to the Company if the failure to obtain the Company Stockholder Approval shall have been caused by the action or failure to act of the Company and such action or failure to act constitutes a material breach by the Company of this Agreement;
(v) at any time prior to the Parent Stockholder Approval, if there shall have been a Company Material Adverse Effect and a Parent Change of Recommendation, or
(vi) at any time prior to the Company Stockholder Approval, if there shall have been a Parent Material Adverse Effect and a Company Change of Recommendation;
(c) by Atlas:
(i) if (A) (x) the Company upon a breach or violation of any of the representations representation, warranty, covenant or warranties of APL herein shall be untrue or inaccurate agreement on the date part of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements Parent set forth in this Agreement, which breach or violation would result in each case such that any condition the failure to satisfy either of the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied at Closing; and (B) in any such untruthcase, inaccuracy, such breach or failure to perform is not curable violation shall be incapable of being cured by the Outside Date; or
(ii) if , or Parent shall not be using on a continuous basis its reasonable best efforts to cure in all material respects such breach or violation after the Merger Agreement is terminated (provided that, in order giving of written notice thereof by the Company to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days Parent of the termination of the Merger Agreement); orsuch violation or breach;
(d) by APLParent upon a breach or violation of any representation, if (i)(A) any warranty, covenant or agreement on the part of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements Company set forth in this Agreement, which breach or violation would result in each case such that any condition the failure to satisfy the conditions set forth in Section 6.3(a) or Section 6.3(b) would and in any such case, such breach or violation shall be incapable of being cured by the Outside Date, or the Company shall not be satisfied using on a continuous basis its reasonable best efforts to cure in all material respects such breach or violation after the giving of written notice thereof by Parent to the Company of such violation or breach;
(e) by Parent, at Closingany time prior to the Company Stockholder Approval, if (i) the Company Board of Directors determines in accordance with Section 4.2(c) and Section 8.3(h) that an Alternative Transaction Proposal constitutes a Company Superior Proposal and (ii) such untruth, inaccuracy, breach or failure the Company notifies Parent in writing that it intends to perform is not curable enter into a binding agreement for a Company Superior Proposal; or
(f) by the Outside Date. The Party desiring Company, at any time prior to terminate the Company Stockholder Approval, if (i) the Board of Directors of the Company authorizes the Company, subject to complying with the terms of this Agreement Agreement, to enter into a binding written agreement concerning a transaction that constitutes a Company 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 (or a description of all material terms and conditions thereof) to such notice, (ii) Parent does not make, within four business days of receipt of the Company's written notification of its intention to enter into a binding agreement for a Company Superior Proposal, an offer that the Board of Directors of the Company determines, in good faith after consultation with a financial advisor of nationally recognized reputation, is at least as favorable to the Company's stockholders as the Company Superior Proposal, it being understood that the Company shall not enter into any such binding agreement during such four business day period, and (iii) the Company, at or prior to any termination pursuant to this Section 7.1 shall give notice of such termination and 7.1(f), pays to Parent the provisions of this Company Termination Fee (as defined in Section 7.1 being relied on to terminate this Agreement to the other Parties7.3).
Appears in 2 contracts
Samples: Merger Agreement (Mylan Laboratories Inc), Merger Agreement (King Pharmaceuticals Inc)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing Effective Time (with notwithstanding any termination approval of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNthe Company’s stockholders):
(a) by mutual written consent of APL and Atlas, by action agreement of the APL Board Company and Atlas’s board of directors, respectively; orParent;
(b) by either APL the Company or AtlasParent, if:
(i) if (A) the Sale shall Merger has not have been consummated on or before September 30December 31, 2011 (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i10.01(b)(i) shall not have breached its obligations in be available to any material respect under party whose breach of any provision of this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Effective Time to have been consummated occur by such date; ortime;
(ii) if an Order (A) any Applicable Law makes consummation of the Merger illegal or otherwise prohibited or (B) any Governmental Authority of competent jurisdiction shall have been entered issued an order, decree or rule or taken any other action (including the failure to have taken an action), that may have the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Company or Parent from consummating the Sale Merger and such Order injunction or other action shall have become final and non-appealablenonappealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to this clause (B) shall not be available to any party hereto unless such party shall have used its reasonable best efforts to contest, appeal and remove such injunction; provided, further, that the right to terminate this Agreement pursuant to this Section 7.1(b)(ii10.01(b)(ii) shall have complied with its obligations pursuant not be available to Section 5.1 with respect any party whose action or failure to act has been the principal cause of, or resulted directly in, such OrderApplicable Law or action prohibiting consummation of the Merger; or
(iii) at the Company Stockholder Meeting (including any adjournment or postponement thereof), the Company Stockholder Approval shall not have been obtained.
(c) by AtlasParent, if:
(i) if (A) an Adverse Company Recommendation Change shall have occurred, (xB) the Board of Directors of the Company shall have failed to include the Company Board Recommendation in the Proxy Statement, (C) the Company shall have failed to call or hold the Company Stockholder Meeting in accordance with Section 6.02, (D) at any time after receipt or public announcement of a Company Acquisition Proposal, the Board of Directors of the Company shall have failed to recommend against any publicly announced Company Acquisition Proposal and reaffirm the Company Board Recommendation as promptly as practicable (but in any event within three (3) Business Days following a request by Parent to do so and in any event at least two (2) Business Days prior to the Company Stockholder Meeting) after receipt of any written request to do so from Parent, (E) the Company enters into any agreement providing for, or a letter of intent, memorandum of understanding, term sheet or similar arrangement contemplating, a Company Acquisition Proposal (other than a confidentiality agreement as contemplated by Section 6.03(b)), (F) a tender or exchange offer relating to its securities shall have been commenced by a Third Party and the Company shall not have sent to its stockholders pursuant to Rule 14e-2 promulgated under the 1934 Act, within ten (10) Business Days after such tender or exchange offer is first published, sent or given, a statement disclosing that the Board of Directors of the Company recommends rejection of such tender or exchange offer, or (G) the Company or the Company Board of Directors shall have publicly announced its intention to do any of the actions set forth in the foregoing clauses (A), (B) or (E);
(ii) there shall have been a breach by the Company of any of the covenants or agreements or any of the representations or warranties set forth in this Agreement on the part of APL herein the Company, which breach of any such covenants or agreements or any such representations or warranties would, individually or in the aggregate, result in, the failure of the conditions set forth in Section 9.02(a), Section 9.02(b) or Section 9.02(e) and which breach has not been cured within thirty (30) days following receipt of notice thereof to the Company or, by its nature, cannot be cured within such period; provided, however, that, at the time of delivery of such notice, Parent or Merger Subsidiary shall not be untrue in material breach of its or inaccurate their obligations under this Agreement;
(iii) any of the conditions set forth in Section 9.02(g), Section 9.02(h), Section 9.02(i), Section 9.02(j), Section 9.02(k), Section 9.02(l) or Section 9.02(m) have not been satisfied within thirty (30) days following the date on which the Company Stockholder Approval is obtained; or
(iv) at any time following the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any the condition set forth in Section 6.2(a9.02(f) or 6.2(b) would cannot be satisfied at Closing; and satisfied.
(Bd) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; orCompany, if:
(iii) if prior to the Merger time that the Company Stockholder Approval is obtained, the Board of Directors of the Company authorizes the Company, subject to complying with the terms of this Agreement, including Section 6.03, to effectuate such termination of this Agreement is terminated (solely in order to enter into a definitive, written agreement concerning a Superior Proposal; provided that, in order as a condition to the Company’s ability to terminate this Agreement pursuant to this subclause Section 10.01(d)(i), the Company shall have paid any amounts due pursuant to Section 11.04(b) in accordance with the terms, and at the times, specified therein;
(ii), Atlas must exercise its right to do so within thirty days ) there shall have been a material breach by Parent or Merger Subsidiary of any of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) covenants or agreements or any of the representations or warranties of Atlas herein shall be untrue or inaccurate set forth in this Agreement on the date part of Parent or Merger Subsidiary, which breach would, individually or in the aggregate, result in, the failure of the conditions set forth in Section 9.03(a) and which breach has not been cured within thirty (30) days following receipt of notice thereof to Parent or, by its nature, cannot be cured within such period; provided, however, that, at the time of delivery of such notice, the Company shall not be in material breach of its obligations under this Agreement or shall thereafter become untrue or inaccurateAgreement; or
(iii) (A) all of the conditions set forth in each of Section 9.01 and Section 9.02 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing), or (B) Atlas the Company is, at such time, ready, willing and able to consummate the transactions contemplated by this Agreement and has not materially breached any representation, warranty, covenant or ATN shall have breached or failed to perform any agreement on the part of their respective covenants or agreements the Company set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (iiC) such untruth, inaccuracy, breach or failure to perform is not curable by on the Outside Date, none of the Parent, Merger Subsidiary nor the Surviving Corporation shall have received the proceeds of the Equity Financing or the Debt Financing. The Party party desiring to terminate this Agreement pursuant to this Section 7.1 10.01 (other than pursuant to Section 10.01(a)) shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparty.
Appears in 2 contracts
Samples: Merger Agreement (Conmed Healthcare Management, Inc.), Merger Agreement (Conmed Healthcare Management, Inc.)
Termination. a. This Agreement may be terminated and by the Sale may be abandoned at any time Consultant upon thirty (30) days’ prior written notice to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent Company. If the Consultant will so terminate this Agreement, the Consultant will be entitled to pay only to the date of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL or Atlas:such termination.
(i) The Company may terminate this Agreement at any time in the event of any violation by the Consultant of any of the terms of this Agreement or for cause, as defined below, without notice to the Consultant and with pay only to the date of such termination.
(ii) Sufficient cause for termination by the Company will be a determination made in good faith and based upon reasonable grounds that the Consultant: (a) has failed to adequately perform his duties hereunder, as determined by the Board of Directors in its sole discretion, or has been substantially absent from retention; (b) has engaged in habitual drunkenness or abusive drugs rendering the Consultant unable to carry our his duties in a responsible manner; (c) has embezzled funds or misapplied assets of the Company; (d) has committed an act with the intent to defraud or hinder the Company; or (e) has been negligent in the performance of the duties owed by the Consultant to the Company.
(iii) As soon as may be practicable after the termination of the Consultant by the Company for cause, the Board of Directors of the Company will make an investigation of, and allow the Consultant an opportunity to discuss with the Board of Directors, the relevant facts with respect thereto. If the Board of Directors of the Company will determine that the Consultant has been terminated without cause, the Consultant will be reinstated in the position which he held prior to the termination and will receive any compensation accrued or payable during the period of his termination. In such event, any shares of Common Stock or other accrued benefits will be payable to the Consultant as if the Consultant had not been terminated.
(Aiv) Any conduct of the Consultant that will constitute cause for termination under the terms of subsection b (ii) of this Section 6 and any breach or evasion of any of the terms of this Agreement by either party hereto will result in immediate and irreparable injury to the injured party and will authorize recourse to injunction and/or specific performance as well as to all other legal or equitable remedies to which such injured party may be entitled hereunder.
c. Anything herein contained to the contrary notwithstanding, in the event that the Company will discontinue operating its business for any reason including but not limited to insolvency, then this Agreement and the Consultant’s retention hereunder will terminate as of the date the Company ceases business operation. For purposes of this Agreement, the Company will be considered to be insolvent if: (i) a petition under Chapters 7, 11 or 12 of the Bankruptcy Reform Act of 1978 has been filed by or against the Company and has not been dismissed within ninety (90) days after filing; or (ii) the Sale shall not have been consummated on or before September 30Company has made an assignment for the benefit of creditors.
d. If the Consultant will die during the term of this Agreement, 2011 this Agreement and the Consultant’s retention hereunder will terminate immediately upon the Consultant’s death, provided that the Consultant will be entitled to his salary hereunder to the last day of the month in which such death occurs.
(i) Notwithstanding anything in this Agreement to the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, thencontrary, the Outside Date shall become November 30, 2011; and (B) Company is hereby given the Party seeking option to terminate this Agreement pursuant to and the Consultant’s retention hereunder in the event that the Consultant, during the term hereof, will become permanently disabled as defined in subsection e (ii) of this Section 7.1(b)(i) shall not have breached its obligations in 6 below. The Company may exercise such option by giving written notice of termination to the Consultant at any material respect under this time after the Consultant becomes permanently disabled. This Agreement in any manner that shall have proximately caused or resulted in and the failure Consultant’s retention will terminate as of the Sale date of such notice, provided that the Consultant will be entitled to have been consummated by his salary hereunder to the last day of the month in which such date; ortermination occurs.
(ii) if an Order shall For purposes of this Agreement, the Consultant will be deemed to have become permanently disabled if, because of ill health, physical or mental disability or for other causes beyond his control, he will have been entered permanently restraining, enjoining unable or otherwise prohibiting the consummation unwilling or will have failed to perform his duties hereunder on ninety per cent of the Sale and days during a period of two consecutive months, irrespective of whether or not 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 5.1 with respect to such Order; ordays are consecutive.
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date f. Upon termination of this Agreement for any reason, the Consultant must immediately return any and all equipment such as communications equipment, computers and related equipment, furniture, office equipment, proprietary papers, customer lists, manuals, files or shall thereafter become untrue other documents or inaccuratecopies thereof belonging to the Company. This clause must be adhered to, or (y) APL shall have breached or failed to perform notwithstanding any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by disagreement between the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination Company and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesConsultant.
Appears in 2 contracts
Samples: Consulting Services Agreement (Medical International Technology Inc), Consulting Services Agreement (Medical International Technology Inc)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing Effective Time (with notwithstanding any termination approval of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNthe shareholders of the Company):
(a) by mutual written consent of APL and Atlas, by action agreement of the APL Board Company and Atlas’s board of directors, respectively; orParent;
(b) by either APL the Company or AtlasParent, if:
(i) if (A) the Sale shall Merger has not have been consummated on or before September 30April 5, 2011 (the “Outside End Date”); provided, however, that, if that the Sale right to terminate this Agreement pursuant to this Section 10.01(b)(i) shall not have occurred be available to any party whose breach of any provision of this Agreement results in the failure of the Merger to be consummated by September 30, 2011, and a New such time;
(ii) there shall be any Applicable Law that (A) makes consummation of the Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and illegal or otherwise prohibited or (B) enjoins the Party Company or Parent from consummating the Merger and such enjoinment shall have become final and nonappealable provided, however, that the party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i10.01(b)(ii) shall have used all reasonable best efforts as may be required by Section 8.01 to prevent, oppose and remove such Applicable Law; or
(iii) the Company Shareholder Meeting shall have been convened and a vote to approve this Agreement shall have been taken thereat and the Company Shareholder Approval shall not have been obtained;
(c) by Parent, if:
(i) (A) an Adverse Recommendation Change shall have occurred; (B) the Company shall have willfully breached its obligations in any material respect any of its obligations under Section 6.03; (C) if a third party commences a tender or exchange offer for Company Common Stock that constitutes an Acquisition Proposal, or otherwise makes an Acquisition Proposal public, and, within ten Business Days after the public announcement of the commencement of such tender or exchange offer, or the public announcement of such Acquisition Proposal, the Company shall have failed to publicly reaffirm the Company Board Recommendation; (D) the Company shall have failed to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal subject to Regulation 14D under the 1934 Act within ten Business Days after the commencement of such Acquisition Proposal (including, for these purposes, by taking no position with respect to the acceptance by the Company’s stockholders of a tender offer or exchange offer within such period, which shall constitute a failure to recommend against such offer); or (E) the Company shall have failed to include in the Company Proxy Statement the Company Board Recommendation;
(ii) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement shall have occurred (A) that would cause the condition set forth in Section 9.02(a) not to be satisfied; and (B) such breach or failure is not cured by the Company by the earlier of (x) the End Date or (y) thirty calendar days following receipt by the Company of written notice of such breach or failure provided that, at the time of the delivery of such written notice, Parent shall not be in material breach of its obligations under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such dateAgreement; or
(iiiii) if an Order a Material Adverse Effect shall have been entered permanently restrainingoccurred since the date of this Agreement that is not capable of being cured prior to the End Date.
(d) by the Company if:
(i) the Board of Directors authorizes the Company, enjoining or otherwise prohibiting subject to complying with the consummation terms of this Agreement, to enter into a written agreement concerning an Acquisition Proposal not resulting from any breach by the Sale Company of its obligations under Section 6.03 that the Board of Directors determines in good faith (after consultation with a financial advisor of nationally recognized reputation and such Order outside legal counsel) constitutes a Superior Proposal; provided, that (x) the Company shall have become final paid any amounts due pursuant to Section 11.04(b) prior to, or concurrently with, such termination and non-appealable(y) the Company enters into a definitive agreement providing for the implementation of such Superior Proposal concurrently with such termination; and provided, provided further, that, prior to any such termination, (A) the Company notifies Parent in writing of its intention to terminate this Agreement and to enter into a binding written agreement concerning such Superior Proposal, attaching the most current version of such agreement to such notice (a “Superior Proposal Notice”); (B) during the three Business Day period following Parent’s receipt of a Superior Proposal Notice (the “Notice Period”), the Company shall have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused its respective financial and legal advisors to offer to negotiate with (and, if accepted, negotiate in good faith with), Parent in making adjustments to the terms and conditions of this Agreement; (C) the Board shall have determined in good faith, after the end of such three Business Day period, and after considering the results of such negotiations and the revised proposals made by Parent, if any, that the Party seeking Superior Proposal giving rise to such notice continues to be a Superior Proposal; provided, however, that any amendment, supplement or modification to the financial terms or other material terms of any Acquisition Proposal shall be deemed a new Acquisition Proposal and the Company may not terminate this Agreement pursuant to this Section 7.1(b)(ii10.01(d)(i) shall have unless the Company has complied with its obligations pursuant to the requirements of this Section 5.1 10.01(d)(i) with respect to such Ordernew Acquisition Proposal, including sending a Superior Proposal Notice with respect to such new Acquisition Proposal and offering to negotiate for two Business Days from such new Superior Proposal Notice; orand (D) the Board shall have determined in good faith, after consulting with and receiving the advice of outside counsel, that the failure to terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary obligations to the Company’s stockholders under Delaware Law;
(cii) by Atlas:
(i) if (A) (x) a breach of any of the representations representation or warranties of APL herein shall be untrue warranty or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed failure to perform any covenant or agreement on the part of its covenants Parent or agreements Merger Subsidiary set forth in this Agreement, in each case such Agreement shall have occurred (A) that any would cause the condition set forth in Section 6.2(a9.03(a) or 6.2(bSection 9.03(b) would not to be satisfied at Closingsatisfied; and (B) such untruth, inaccuracy, breach or failure to perform is not curable cured by the Outside Dateearlier of (x) the End Date or (y) thirty calendar days following receipt by the Company of written notice of such breach or failure provided that, at the time of the delivery of such written notice, the Company shall not be in material breach of its obligations under this Agreement; or
(iiiii) if (A) the Company has given written notice to Parent that it believes the three Business Day period contemplated by Section 2.01(b) has commenced and at least 5 Business Days have elapsed from the date of such notice and (B) Parent and Merger Subsidiary fail to consummate the transactions contemplated by this Agreement is terminated (within two Business Days following the date the Closing should have occurred pursuant to Section 2.01(b); provided thatthat during such two Business Day period following the date the Closing should have occurred pursuant to Section 2.01(b), in order no party shall be entitled to terminate this Agreement pursuant to this subclause (iiSection 10.01(b)(i), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party party desiring to terminate this Agreement pursuant to this Section 7.1 10.01 (other than pursuant to Section 10.01(a) shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesparty, including a description in reasonable detail of the reasons for such termination, to the other party in accordance with Section 11.01, specifying the provision or provisions hereof pursuant to which such termination is effected.
Appears in 2 contracts
Samples: Merger Agreement (Razor Holdco Inc.), Merger Agreement (Thermadyne Holdings Corp /De)
Termination. This Agreement may be terminated terminated, and the Sale transactions contemplated hereby may be abandoned abandoned, at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether prior to or after the Company Shareholders' Approval or the Parent Shareholders' Approval:
(a) by By mutual written consent agreement of APL and Atlas, the parties hereto duly authorized by action taken by or on behalf of the APL Board and Atlas’s board their respective Boards of directors, respectively; orDirectors;
(b) By either the Company or Parent upon notification to the non-terminating party by either APL or Atlasthe terminating party:
(i) by either Parent or the Company if (A) as a result of the Sale failure of any of the conditions set forth in Exhibit A, the Offer shall have terminated or expired in accordance with its terms without Sub having purchased any shares of Company Common Stock pursuant to the Offer or (B) Sub shall not have been consummated on or before September 30accepted for payment any shares of Company Common Stock pursuant to the Offer prior to February 10, 2011 (the “Outside Date”)2002; provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.01(b)(i) shall not have breached be available to any party whose failure to perform any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Offer to have been be consummated by such date; ortime;
(ii) if an Order the Company Shareholders' Approval shall not be obtained by reason of the failure to obtain the requisite vote upon a vote held at a meeting of such shareholders, or any adjournment thereof, called therefor, provided that the Company shall have no right to terminate this Agreement if such failure is due to delay or default on the part of the Company;
(iii) if there has been entered permanently restraininga material breach of any representation, enjoining warranty, covenant or agreement on the part of the non-terminating party set forth in this Agreement, which breach has not been cured within thirty (30) days following receipt by the non-terminating party of written notice of such breach from the terminating party;
(iv) if any court of competent jurisdiction or other competent Governmental or Regulatory Authority shall have issued an order making illegal or otherwise restricting, preventing or prohibiting the consummation of the Sale Merger and such Order order shall have become final and non-appealablenonappealable; or
(v) if the Parent Shareholders' Approval shall not be obtained with respect to the Parent Proposal by reason of the failure to obtain the requisite vote upon a vote held at a meeting of such shareholders, provided or any adjournment thereof, called therefor, unless such failure is due to delay or default on the part of Parent.
(c) By the Company if the Board of Directors of the Company shall have determined in good faith, based upon the advice of Xxxxxxxxx, Xxxxxxx & XxXxxxxxxx, that failure to terminate this Agreement is reasonably likely to result in the Board of Directors breaching its fiduciary duties to shareholders under applicable law by reason of the pendency of an unsolicited, bona fide proposal for a Superior Company Transaction, but only if the Company and its Subsidiaries and other Representatives of the Company shall have complied with their obligations under Section 5.02; provided, however, that the Party seeking to Company may not terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
clause (c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL unless five business days shall have breached or failed elapsed after delivery to perform any Parent of its covenants or agreements set forth in this Agreement, in each case a written notice of such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) determination by such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days Board of the termination of the Merger Agreement)Directors; or
(d) by APL, By Parent if (i)(Ax) any the Board of Directors of the representations Company (or warranties any committee thereof) shall have (i) failed to recommend or withdrawn or modified in a manner adverse to Parent its approval or recommendation of Atlas herein shall be untrue this Agreement, the Offer and the Merger, (ii) recommended or inaccurate on taken no position with respect to a proposal for a Company Alternative Transaction or (iii) following the date announcement or making of a proposal for a Company Alternative Transaction, failed to reconfirm its recommendation of this Agreement or shall thereafter become untrue or inaccurate, and the Merger within 96 hours following a written request for such reconfirmation by Parent or (By) Atlas or ATN there shall have breached occurred the entry by a court having jurisdiction in the premises of (i) a decree or failed to perform order for relief in respect of the Company or any of their respective covenants Subsidiary in an involuntary case or agreements set forth in this Agreementproceeding under any applicable federal or state or foreign bankruptcy, in each case such that any condition set forth in Section 6.3(a) insolvency, reorganization or 6.3(b) would not be satisfied at Closing, and other similar law or (ii) such untrutha decree or order adjudging the Company or any Subsidiary a bankrupt or insolvent, inaccuracyor approving as properly filed a petition seeking reorganization, breach arrangement, adjustment or failure to perform is not curable by composition of or in respect of the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice Company or any Subsidiary under any applicable federal or state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of such termination and the provisions Company or any Subsidiary or of this Section 7.1 being relied on to terminate this Agreement to any substantial part of its property, or ordering the other Partieswinding up or liquidation of its affairs.
Appears in 2 contracts
Samples: Merger Agreement (Alpnet Inc), Merger Agreement (Alpnet Inc)
Termination. This Notwithstanding anything to the contrary set forth in this Agreement, this Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing Effective Time, whether before or after the Requisite Stockholder Approval is obtained (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):except as otherwise expressly provided), as follows:
(a) by mutual written consent of APL each of Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company, if:
(i) if (A) the Sale Effective Time shall not have been consummated occurred on or before September 30March 31, 2011 2016 (the “Outside Termination Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have be available to any party if such party has breached its obligations in any material respect its obligations under this Agreement in any a manner that shall have proximately caused or resulted in been the principal cause of the failure of the Sale Merger to have been be consummated by on or before such date; or;
(ii) if an Order (A) a Law shall have been enacted, entered or promulgated prohibiting the consummation of the Merger on the terms contemplated hereby or (B) any Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale transactions contemplated by this Agreement, and such Order or other action shall have become final and non-appealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii) shall have complied with not be available to a party if the issuance of such final, non-appealable Order was primarily due to the failure of such party, and in the case of Parent, including the failure of Merger Sub, to perform any of its obligations pursuant to Section 5.1 with respect to such Orderunder this Agreement; or
(iii) the Requisite Stockholder Approval shall not have been obtained at a duly held Stockholders’ Meeting or at any adjournment, continuation, recess or postponement thereof at which this Agreement and the transactions contemplated hereby have been voted upon;
(c) by Atlasthe Company if:
(i) if (A) (x) any of the representations Parent or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Merger Sub shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (x) would result in each case such that any a failure of a condition set forth in Section 6.2(a6.1 or Section 6.3 and (y) or 6.2(b) would cannot be satisfied at Closing; cured on or before the Termination Date or, if curable, is not cured by Parent or Merger Sub, as applicable, prior to the earlier of (A) thirty (30) days of receipt by Parent of written notice of such breach or failure and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Termination Date; or
(ii) if provided, however, that the Merger Agreement is terminated (provided that, in order Company shall not have the right to terminate this Agreement pursuant to this subclause Section 7.1(c)(i) if the Company is in material breach of any representation, warranty covenant or agreement contained in this Agreement that would cause a condition set forth in Section 6.1 or Section 6.2 not to be satisfied; or
(ii) prior to obtaining the Requisite Stockholder Approval, provided that the Company has not breached or failed to perform in any material respect any of its obligations under Section 5.6, (x) the Company Board has determined and authorized the Company to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal to the extent permitted by and in accordance with the terms of Section 5.6(e), Atlas must exercise its right and (y) concurrently with such termination, (A) the Company enters into an Alternative Acquisition Agreement with respect to do so within thirty days a Superior Proposal and (B) the Company pays to Parent the Termination Fee;
(iii) all of the termination of conditions set forth in Section 6.1 and Section 6.2 have been satisfied or, if permitted by applicable Law, waived (other than those conditions that by their nature are to be satisfied by actions taken at the Merger AgreementClosing, each of which is capable of being satisfied at the Merger Closing), the Company has irrevocably confirmed to Parent in writing that the Company is ready, willing and able to consummate the Merger and Parent and Merger Sub fail to consummate the Merger within three (3) Business Days following the date the Merger Closing should have occurred pursuant to Section 1.2; provided, that the Company stood ready, willing and able to consummate the Merger during such three (3) Business Day period; or
(d) by APL, if Parent if:
(i)(Ai) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Company shall have breached or failed to perform any of their respective its representations, warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (x) would result in each case such that any a failure of a condition set forth in Section 6.3(a6.1 or Section 6.2 and (y) or 6.3(b) would cannot be satisfied at Closingcured on or before the Termination Date or, and if curable, is not cured by the Company prior to the earlier of (iiA) thirty (30) days of receipt by the Company of written notice of such untruth, inaccuracy, breach or failure to perform is and (B) the Termination Date; provided, however, that Parent shall not curable by have the Outside Date. The Party desiring right to terminate this Agreement pursuant to this Section 7.1 shall give notice 7.1(d)(i) if the Parent is in material breach of such termination and the provisions of this Section 7.1 being relied on to terminate any representation, warranty or covenant or agreement contained in this Agreement that would cause a condition set forth in Section 6.1 or Section 6.3 not to be satisfied; or
(ii) the other PartiesCompany Board shall have made an Adverse Recommendation Change.
Appears in 2 contracts
Samples: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Merger Effective Date, whether before or after approval of the stockholders of First Franklin referred to in Section 5.10(a)(vii) hereof:
(a) by mutual written consent of APL and Atlas, the parties authorized by action of the APL Board and Atlas’s board their respective boards of directors, respectively; or;
(b) by either APL Cheviot Financial or Atlas:First Franklin
(i) if the Merger Effective Date shall not have occurred on or prior to June 30, 2011,
(Aii) if a vote of the stockholders of First Franklin is taken and such stockholders fail to approve this Agreement at the special meeting of stockholders (or any adjournment thereof) of First Franklin contemplated by Section 5.10(a)(vii) hereof, or
(iii) any Regulatory Authority formally disapproves the issuance of any Regulatory Approval or other necessary approval, unless (x) the Sale failure of such occurrence shall be due to the failure of the party seeking to terminate this Agreement to perform or observe its obligations set forth herein which are required to be performed or observed by such party on or before the Merger Effective Date, or (y) in the case of clause (i) of this Section 7.01(b), the right to terminate shall not be available to any party whose failure to perform an obligation under this Agreement has been the cause of, or resulted in, the failure of the Merger to be consummated by June 30, 2011;
(c) by Cheviot Financial if (i) at the time of such termination, the conditions set forth in Section 6.02(b), 6.02(c) or 6.02 (i) hereof cannot be satisfied, (ii) there shall have been any material breach of any covenant, agreement or obligation of First Franklin or Franklin Savings hereunder and such breach shall have not been remedied by First Xxxxxxxx, Xxxxxxxx Savings or any other Person within thirty (30) days after receipt by First Franklin of notice in writing from Cheviot Financial specifying the nature of such breach and requesting that it be remedied, such that conditions set forth in Section 6.02(b) cannot be satisfied, (iii) any Regulatory Authority approves the transactions contemplated but with conditions attached such that the requirements of Section 6.02(d) are not satisfied, (iv) First Franklin has received a Superior Proposal, and in accordance with Section 5.06 of this Agreement, the Board of Directors of First Franklin withdraws its recommendation of this Agreement, fails to make such recommendation or modifies or qualifies its recommendation in a manner adverse to Cheviot Financial, or (v) any event occurs such that a condition set forth in Section 6.02 hereof cannot be fulfilled and non-fulfillment is not waived by Cheviot Financial;
(d) by First Franklin if (i) at the time of such termination, the condition set forth in Section 6.01(b) or 6.01(c) hereof cannot be satisfied, (ii) there shall have been any material breach of any covenant, agreement or obligation of Cheviot Financial or Cheviot Savings Bank hereunder and such breach shall not have been consummated on remedied by Cheviot Financial, Cheviot Savings Bank or before September any other Person within thirty (30) days after receipt by Cheviot Financial of notice in writing from First Franklin specifying the nature of such breach and requesting that it be remedied, 2011 such that conditions set forth in Section 6.01(b) cannot be satisfied, (iii) any event occurs such that a condition set forth in Section 6.01 hereof cannot be fulfilled and non-fulfillment is not waived by First Franklin, or (iv) First Franklin has received a Superior Proposal, and in accordance with Section 5.06 of this Agreement, the “Outside Date”)Board of Directors of First Franklin has made a determination to accept such Superior Proposal; provided, however, that, if the Sale that First Franklin shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i7.01(d)(iv) and enter in a definitive agreement with respect to the Superior Proposal until the expiration of seven (7) Business Days following Cheviot Financial’s receipt of written notice advising Cheviot Financial that First Franklin has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and including a copy thereof with all accompanying documentation, if in writing) identifying the person making the Superior Proposal and stating whether First Franklin intends to enter into a definitive agreement with respect to the Superior Proposal. After providing such notice, First Franklin shall not have breached its obligations provide a reasonable opportunity to Cheviot Financial during the seven (7) Business Day period to make such adjustments in any material respect under the terms and conditions of this Agreement in any manner as would enable First Franklin to proceed with the Merger on such adjusted terms. If Cheviot Financial fails to respond within such seven (7) Business Day period or fails to agree to adjust the terms and conditions of this Agreement such that shall have proximately caused or resulted First Franklin, in the failure sole discretion of its Board of Directors, may terminate this Agreement at the Sale to have been consummated by end of such date; or
seven (ii7) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealableBusiness Day period, provided that it pays the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied Cheviot Financial Fee concurrently with its obligations pursuant decision to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesterminate.
Appears in 2 contracts
Samples: Merger Agreement (First Franklin Corp), Merger Agreement (Cheviot Financial Corp)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether before or after receipt of the Company Requisite Shareholder Vote or the Acquiror Requisite Shareholder Vote, as applicable.
(a) by mutual written consent of APL Company and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orAcquiror;
(b) by either APL or Atlas:
Party if (i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement Law shall have been executedenacted, then, entered or promulgated prohibiting the Outside Date shall become November 30, 2011; and (B) 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 consummation of the Sale to have been consummated by such date; or
transactions contemplated hereby substantially on the terms contemplated hereby, (ii) if an Order shall have been entered enacted, entered, promulgated or issued by a Governmental Entity permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale transactions contemplated hereby substantially on the terms contemplated hereby, and such Order shall have become final and non-appealable; provided, provided however, that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(iisubclause (ii) shall have complied with used its obligations pursuant commercially reasonable efforts to Section 5.1 with respect to remove such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (yiii) APL a Governmental Entity shall have breached or failed to perform issue an Order or take any other action, and such denial of its covenants a request to issue such Order or agreements set forth in this Agreementtake such other action shall have become final and non-appealable, in each case such that is necessary to satisfy any condition set forth in Article 5; provided, however, neither Party shall be able to terminate this Agreement pursuant to this Section 6.2(a6.1(b) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or in the case of the failure to perform is not curable by obtain the Outside DateInterim Order or Final Order which shall solely be addressed in Section 6.1(f); or
(ii) if provided, further, that the Merger Agreement is terminated (provided that, in order right to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(diii) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or available to any Party whose failure to perform is not curable by comply with Section 4.5 has been the Outside Date. The Party desiring cause of such inaction; and provided further that the right to terminate this Agreement pursuant to this Section 7.1 6.1(b) shall give notice apply only if the Law, Order or act or omission of such termination the Governmental Entity, as the case may be, shall have caused the failure of any condition set forth in Article 5 to be satisfied and the provisions Party entitled to rely on such condition shall not elect to waive such condition;
(c) by either Party if the Arrangement shall not have been consummated on or prior to the date that is 180 days after the date of this Agreement or such other date as Acquiror and Company shall agree in writing (the “Termination Date”); provided, however, that (i) the Termination Date shall be automatically extended for a period not to exceed 60 days to the extent necessary to satisfy the condition set forth in Section 7.1 being relied on 5.1(h) and (ii) the right to terminate this Agreement pursuant this Section 6.1(c) 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 failure of the Arrangement to be consummated on or before the Termination Date;
(d) by either Party if all of the following shall have occurred: (i) the other Party shall have breached or failed to perform in any material respect any of its representations, warranties or covenants contained in this Agreement, (ii) such breach or failure to perform is reasonably expected to result in any condition set forth in Sections 5.2(a), 5.2(b), 5.3(a) and 5.3(b) to not be satisfied and (iii) such breach or failure to perform is incapable of being cured by the other Party prior to the date that is 30 days after receipt of written notice thereof or, if such breach or failure to perform is capable of being so cured, the other Party shall not have cured such breach or failure to perform within 30 days after receipt of written notice thereof;
(e) by either Party if (i) the approval of the Continuance Resolution shall not have been obtained by reason of the failure to obtain the Continuance Requisite Shareholder Vote at the Company Meeting (or of any adjournment or postponement thereof) or (ii) the approval of the Arrangement Resolution shall not have been obtained by reason of the failure to obtain the Company Requisite Shareholder Vote at the Company Meeting (or of any adjournment or postponement thereof); provided, however, that the right to terminate this Agreement pursuant to this Section 6.1(e) shall not be available to Company where Company’s breach of Section 4.7 or Section 4.9 shall have caused the failure to obtain such approval;
(f) by either Party, if the Interim Order or the Final Order shall have not been obtained on terms consistent with this Agreement or shall have been set aside or modified in a manner reasonably unacceptable to Acquiror and Company on appeal or otherwise; provided, however, that the right to terminate this Agreement pursuant to this Section 6.1(f) 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 failure of the Arrangement to be consummated on or before the Termination Date;
(g) by either Party if the approval of the transactions contemplated hereby shall not have been obtained by reason of the failure to obtain the Acquiror Requisite Shareholder Vote at the Acquiror Meeting (or of any adjournment or postponement thereof); provided, however, that the right to terminate this Agreement pursuant to this Section 6.1(g) shall not be available to Acquiror where Acquiror’s breach of Section 4.7 or Section 4.9 shall have caused the failure to obtain such approval;
(h) by either Party if any of the following actions has occurred: (i) the other Party, any of its Affiliates or any of their respective Representatives shall have materially breached its obligations of Section 4.9; (ii) the Board of Directors of the other Party shall have failed to make its recommendation as required by Section 4.7(b) or shall have effected an Adverse Recommendation Change (or resolved or publicly proposed to take any such action), whether or not permitted by the terms of this Agreement, (iii) the Board of Directors of the other Party shall have failed to reconfirm its recommendation as required by Section 4.7(b) within five Business Days after a written request to do so by the terminating Party, (iv) the other Party shall have materially breached its obligations under this Agreement by reason of a failure to call or conduct its meeting of shareholders in accordance with Section 1.2(b) or Section 1.3, as applicable, (v) the Board of Directors of the other Party shall have recommended to its shareholders any Takeover Proposal or Superior Proposal; or (vi) the other Party shall have entered into any agreement, letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to any Takeover Proposal or Superior Proposal or requiring such other Party to abandon, terminate or fail to consummate any of the transactions contemplated hereby, including the Arrangement; or
(i) by either Party if the Board of Directors of such Party shall have approved or recommended, or such Party shall have entered into a definitive agreement with respect to, a Superior Proposal in compliance with Section 4.9(b). Notwithstanding the foregoing, neither Party may terminate this Agreement pursuant this Section 6.1 unless such Party shall have made all payments required to be made to the other PartiesParty pursuant to Section 6.2.
Appears in 2 contracts
Samples: Arrangement Agreement (Whiting Petroleum Corp), Arrangement Agreement (Kodiak Oil & Gas Corp)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing Effective Time, whether before or after receipt of the Requisite Company Vote (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNexcept as otherwise expressly noted):
(a) by the mutual written consent of APL the Company and Atlas, Parent duly authorized by action each of their respective boards of directors (in the case of the APL Board and Atlas’s board Company, acting upon the unanimous recommendation of directors, respectively; orthe Independent Committee);
(b) by either APL of the Company or AtlasParent:
(i) if (A) the Sale Merger shall not have been consummated on or before September 302, 2011 2014 (the “Outside Termination Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(b)(i) shall not be available to a party if the failure of the Merger to have breached its obligations been consummated on or before the Termination Date was primarily due to the breach or failure of such party to perform in any material respect any of its obligations under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; orAgreement;
(ii) if an Order shall have been entered any Injunction permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order Merger shall have become final and non-appealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(b)(ii) shall have complied with not be available to a party if the issuance of such Injunction was primarily due to the breach or failure of such party to perform in any material respect any of its obligations pursuant to Section 5.1 with respect to such Orderunder this Agreement; or
(iii) if the Shareholders’ Meeting shall have been held and completed and the Requisite Company Vote shall not have been obtained at the Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;
(c) by Atlas:Parent,
(i) if (A) (x) any the representations and warranties of the representations or warranties of APL herein Company shall be have become untrue or inaccurate on after the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL the Company shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not which failure to be satisfied at Closing; true and (B) such untruth, inaccuracycorrect, breach or failure to perform is (A) would give rise to the failure of a condition set forth in Section 7.1 or Section 7.2 and (B) cannot curable be cured by the Outside Company by the Termination Date, or if capable of being cured, shall not have been cured within thirty (30) Business Days following receipt by the Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 8.1(c)(i) and the basis for such termination (or, if earlier, the Termination Date); provided, however, that, Parent shall not have the right to terminate this Agreement pursuant to this Section 8.1(c)(i) if either Parent or Merger Sub is then in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 7.1 or Section 7.3 not being satisfied; or
(ii) if (A) the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days board of directors of the termination Company shall have made a Company Adverse Recommendation, (B) the board of directors of the Merger Agreement)Company approves, endorses or recommends any Acquisition Proposal other than the Merger, or (C) the Company or the board of directors of the Company, acting upon the recommendation of the Independent Committee, fails to include the Company Recommendation in the Proxy Statement; or
(d) by APL, the Company,
(i) if (i)(A) any of the representations or and warranties of Atlas herein Parent or Merger Sub shall be have become untrue or inaccurate on after the date of this Agreement or shall thereafter become untrue Parent or inaccurate, or (B) Atlas or ATN Merger Sub shall have breached or failed to perform any of their respective covenants or agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not which failure to be satisfied at Closing, true and (ii) such untruth, inaccuracycorrect, breach or failure to perform is (A) would give rise to the failure of a condition set forth in Section 7.1 or Section 7.3 and (B) cannot curable be cured by the Outside Termination Date. The Party desiring , or if capable of being cured, shall not have been cured within thirty (30) Business Days following receipt by Parent or Merger Sub of written notice of such breach or failure to perform from the Company stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1 shall give notice of 8.1(d) and the basis for such termination and (or, if earlier, the provisions of this Section 7.1 being relied on Termination Date); provided, however, that, the Company shall not have the right to terminate this Agreement pursuant to this Section 8.1(d) if it is then in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 7.1 or Section 7.2 not being satisfied;
(ii) if, prior to the receipt of the Requisite Company Vote, the board of directors of the Company (upon recommendation of the Independent Committee) has effected a Company Adverse Recommendation and authorized termination of this Agreement in order to enter into an Alternative Acquisition Agreement relating to a Superior Proposal; provided that the Company has complied in all material respects with Section 6.2; or
(iii) if (A) all of the conditions to closing contained in Section 7.1 and Section 7.2 have been satisfied (other Partiesthan those conditions that by their nature are to be satisfied at the Closing) and (B) Parent and Merger Sub fail to complete the Closing within ten (10) Business Days following the date the Closing should have occurred pursuant to Section 2.2.
Appears in 2 contracts
Samples: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Termination. This Agreement may be terminated and the Sale may be Transactions abandoned at any time prior to the Closing Effective Time, whether before or after receipt of the Company Stockholder Approval (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNexcept as otherwise expressly noted):
(a) by the mutual written consent of APL the Company and Atlas, by action of the APL Board and Atlas’s board of directors, respectivelyParent; or
(b) by either APL of the Company or Atlas:Parent (if, in the case of the Company, it has not materially violated Section 5.2):
(i) if (A) the Sale Merger shall not have been consummated on or before September 30, 2011 (the “Outside Walk-Away Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right 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 be available to a party if the failure of the Sale Merger to have been consummated by on or before the Walk-Away Date was primarily due to the failure of such dateparty to perform any of its obligations under this Agreement; or
(ii) if an Order any Restraint having the effect set forth in Section 6.1(e) shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale be in effect and such Order shall have become final and nonappealable; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a party if the issuance of such final, non-appealableappealable Restraint was primarily due to the failure of such party to perform any of its obligations under this Agreement; or
(iii) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof; provided, provided however, that the Party seeking right to terminate this Agreement under this Section 7.1(b)(iii) shall not be available to the Company if the failure by the Company to perform any of its obligations under this Agreement has been the principal cause or resulted in the failure to obtain the Company Stockholder Approval; or
(c) by Parent,
(i) if: (A) the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement (except the covenants and agreements in Section 5.2), which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2 and (ii) cannot be cured by the Company, or if capable of being cured, shall not have been cured within 20 days following receipt by the Company of written notice of such breach or failure to perform from Parent (or, if earlier, the Walk-Away Date); provided that, Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(b)(ii7.1(c)(i) if it is then in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 6.3 not being satisfied; or (B) the Company shall have complied with breached in any material respect its obligations pursuant to under Section 5.1 with respect to 5.2, which breach, if curable by the Company, shall not have been fully cured by the Company within 5 days following receipt by the Company of written notice of such Orderbreach; or
(cii) if: (A) the Board of Directors of the Company shall have failed to include the Company Board Recommendation in the Proxy Statement or shall have effected a Company Adverse Recommendation Change; (B) the Board of Directors of the Company shall have effected a Change of Recommendation in response to an Intervening Event; (C) the Board of Directors of the Company shall have failed to publicly reaffirm its recommendation of this Agreement in the absence of a publicly announced Takeover Proposal within two business days after Parent so requests in writing; (D) the Board of Directors of the Company shall have failed to recommend against any publicly announced Takeover Proposal and reaffirm the Company Board Recommendation, in each case, within ten business days following the public announcement of such Takeover Proposal and in any event at least two business days prior to the Company Stockholder Meeting; (E) the Company enters into a Company Acquisition Agreement; or (F) the Company or the Board of Directors of the Company shall have publicly announced its intention to do any of the foregoing; or
(d) by Atlasthe Company:
(i) if (A) (x) any of the representations Parent or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Merger Sub shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; 6.3 and (B) such untruth, inaccuracy, breach or failure to perform is has not curable been cured by the Outside Walk-Away Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its the Company shall not have the right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give 7.1(d)(i) if it is then in material breach of any representations, warranties, covenants or other agreements hereunder that would result in the conditions to Closing set forth in Section 6.2 not being satisfied; or
(ii) prior to the receipt of the Company Stockholder Approval, in order to concurrently enter into a Company Acquisition Agreement that constitutes a Superior Proposal, if, (A) the Company has complied in all material respects with the requirements of Section 5.2 and (B) prior to or concurrently with such termination, the Company pays the fee due under Section 7.3; or
(iii) if (A) the conditions set forth in Sections 6.1 and 6.2 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied and (B) the Company has irrevocably confirmed that all conditions set forth in Section 6.3 have been satisfied or that it is willing to waive all conditions in Section 6.3 and within five business days after the Company has delivered written notice to Parent of the satisfaction of such termination conditions and such confirmation, the Merger shall not have been consummated within two business days after the final day of the Marketing Period, provided that such conditions in Sections 6.1 and 6.2 remain satisfied at the close of business on such fifth business day; or
(iv) if (A) the conditions set forth in Sections 6.1 and 6.2 (other than those conditions that by their nature are to be satisfied by actions taken at the Closing) have been satisfied; (B) (x) the Debt Financing contemplated by the Debt Commitment Letters has funded or (y) the conditions of the Debt Commitment Letters, other than the Merger and the provisions funding of this Section 7.1 being relied on to terminate this Agreement the Equity Financing contemplated by the Equity Funding Letter, have been satisfied and the Debt Financing would be funded pursuant to the other Partiesterms and conditions set forth in such Debt Commitment Letters upon the consummation of such Equity Financing; and (C) the Company has irrevocably confirmed that all conditions set forth in Section 6.3 have been satisfied or that it is willing to waive all conditions in Section 6.3, and the Merger shall not have been consummated within five business days after the receipt of such Financing and the Company’s delivery of a written notice to Parent of the satisfaction of such conditions and such confirmation, provided that such conditions in Sections 6.1 and 6.2 remain satisfied at the close of business on such fifth business day.
Appears in 2 contracts
Samples: Merger Agreement (Aeroways, LLC), Merger Agreement (Cke Restaurants Inc)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Closing:
(a) by mutual written consent of APL and Atlas, by action agreement of the APL Board Company and Atlas’s board Parent (notwithstanding any approval of directors, respectively; orthis Agreement by the stockholders of the Company);
(b) by either APL Parent or Atlas:
(i) the Company, upon written notice to the other party, if (A) the Sale shall Closing Date has not have been consummated occurred on or before September January 30, 2011 2022 (the “Outside End Date”) (notwithstanding any approval of this Agreement by the stockholders of the Company); provided that the right to terminate this Agreement under this Section 8.01(b) shall not be available to any party whose material breach of any provision of this Agreement has been the proximate cause of the failure of the Merger to be consummated by the End Date;
(c) by either Parent or the Company, upon written notice to the other party, if any Governmental Authority of the United States or Israel of competent jurisdiction shall have issued a final and non-appealable Order permanently enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement (notwithstanding any approval of this Agreement by the stockholders of the Company); provided, however, thatthat the party seeking to terminate this Agreement shall have complied with its obligations under Section 6.12;
(d) by either Parent or the Company, upon written notice to the other party, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement Stockholder Meeting shall have been executedduly convened and held and completed and the Stockholder Approval has not been obtained by reason of the failure to obtain the required vote upon a final vote taken at the Stockholder Meeting (or any adjournment or postponement thereof);
(e) by Parent, thenupon written notice to the Company, in the Outside Date shall become November 30event of a breach by the Company of any representation, 2011; warranty, covenant or other agreement contained herein that (i) would result in any condition set forth in Section 7.02 not being satisfied and (Bii) has not been cured prior to the Party seeking earlier of the End Date and the 30th day following Parent’s delivery of written notice describing such breach to the Company; provided, however, that Parent shall not be entitled to terminate this Agreement pursuant to this Section 7.1(b)(i8.01(e) shall not have breached if, at the time of such termination, either Parent or Merger Sub is in material breach of its obligations in any material respect under this Agreement such that the Company would be entitled to terminate this Agreement pursuant to Section 8.01(f);
(f) by the Company, upon written notice to Parent, in the event of a breach by Parent or Merger Sub of any representation, warranty, covenant or other agreement contained herein that (i) would result in any manner that shall have proximately caused or resulted condition set forth in the failure of the Sale to have been consummated by such date; or
Section 7.03 not being satisfied and (ii) if an Order shall have has not been entered permanently restraining, enjoining or otherwise prohibiting cured prior to the consummation earlier of the Sale End Date and the 30th day following the Company’s delivery of written notice describing such Order shall have become final and non-appealablebreach to Parent; provided, provided however, that the Party seeking Company shall not be entitled to terminate this Agreement pursuant to this Section 7.1(b)(ii8.01(f) shall have complied with if, at the time of such termination, the Company is in material breach of its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of under this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) Parent would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order entitled to terminate this Agreement pursuant to this subclause Section 8.01(e);
(g) by Parent, upon written notice to the Company, prior to obtaining the Stockholder Approval, if (i) an Adverse Recommendation Change shall have occurred, (ii)) the Company Board fails to include in the Proxy Statement the Company Recommendation or (iii) following a publicly announced Acquisition Proposal the Company Board shall have failed to recommend against such Acquisition Proposal and publicly reaffirm the Company Recommendation, Atlas must exercise its right in each case, within ten Business Days following the public announcement of such Acquisition Proposal and in any event at least four Business Days prior to do so within thirty days of the termination of the Merger Agreement)Stockholder Meeting; or
(dh) by APLthe Company, upon written notice to Parent, prior to obtaining the Stockholder Approval and subject to complying with the terms of Section 6.02 and Section 6.03, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Company Board shall have breached or failed to perform any effected an Adverse Recommendation Change in respect of their respective covenants or agreements set forth a Superior Proposal in this Agreement, in each case such that any condition set forth in accordance with Section 6.3(a) or 6.3(b) would not be satisfied at Closing6.03, and (ii) concurrently with such untruthtermination the Company enters into an Alternative Acquisition Agreement with respect to such Superior Proposal; provided, inaccuracyhowever, breach that the Company shall prior to or failure substantially concurrently with, and as a condition of, such termination, pay the Company Termination Fee to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement Parent pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties9.04.
Appears in 2 contracts
Samples: Merger Agreement (DSP Group Inc /De/), Merger Agreement (DSP Group Inc /De/)
Termination. This Agreement may be terminated and the Sale Merger and the other Transactions may be abandoned at any time prior to the Closing Effective Time (with provided that, in the case of the Company, any termination such action must be authorized by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):a unanimous recommendation of the Special Committee), as follows:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company, if:
(i) if (A) the Sale Effective Time shall not have been consummated occurred on or before September 30October 11, 2011 2014 (such date as may be extended in accordance with this Section 8.01(b)(i), the “Outside Termination Date”); provided, however, that, if provided that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.01(b)(i) shall not have breached be available to any party if the circumstances described in this Section 8.01(b)(i) are primarily caused by such party’s failure to comply with its obligations in any material respect under this Agreement in any manner Agreement; and provided, further, that shall have proximately caused the Termination Date may be extended by Parent or resulted the Company (by written notice to the other party) to a date which is no later than January 11, 2015 in the failure event that, on the Termination Date, (x) all of the Sale conditions to Closing (other than those that by their terms are to be satisfied at the Closing) have been consummated satisfied or waived (provided that the conditions to Closing that by their terms are to be satisfied at the Closing would be satisfied as of the Termination Date if the Closing were to occur on the Termination Date), (y) Parent has made a Specified Filing for which it has not received consent or approval for the Merger from the applicable Governmental Authority and (z) the Closing has not occurred pursuant to the proviso in Section 1.02, and following any such extension, the “Termination Date” for all purposes hereunder shall be deemed to be such extended date; or
(ii) if an Order Injunction shall have been entered permanently restrainingissued;
(iii) if the Requisite Company Vote is not obtained at the Shareholders’ Meeting or any adjournment thereof at which this Agreement has been voted upon;
(c) by the Company if there shall have been a breach of any representation, enjoining warranty, covenant or otherwise prohibiting agreement on the consummation part of Parent and Merger Sub set forth in this Agreement (including a failure by Parent and Merger Sub to complete the Sale Closing subject to and such Order in accordance with Section 1.02), or if any representation or warranty of Parent and Merger Sub shall have become final and non-appealableuntrue, provided in either case such that the Party seeking conditions set forth in Section 7.03(a) or Section 7.03(b) would not be satisfied; provided, however, that, the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(b)(ii8.01(c) shall have complied with if the Company is then in material breach of any of its obligations pursuant to Section 5.1 with respect to such Order; orrepresentations, warranties, covenants or other agreements hereunder;
(cd) by AtlasParent:
(i) if (A) (x) there shall have been a breach of any representation, warranty, covenant or agreement on the part of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in each either case such that any condition the conditions set forth in Section 6.2(a7.02(a) or 6.2(bSection 7.02(b) would not be satisfied at Closingsatisfied; and (B) such untruthprovided, inaccuracyhowever, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its Parent shall not have the right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 8.01(d)(i) if either Parent or Merger Sub is then in material breach of any of its representations, warranties, covenants or other agreements hereunder; or
(ii) if (A) there shall give notice have been a Change in the Company Recommendation, (B) the Company Board shall have adopted, approved, endorsed or recommended, or shall have proposed publicly to adopt, approve, endorse or recommend, an Acquisition Proposal, (C) the Company or any of its Subsidiaries shall have consummated or entered into any letter of intent, Contract, commitment or obligation with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in compliance with Section 6.04(b)), (D) the Company shall have failed to include the Company Recommendation in the Proxy Statement, or (E) a tender offer or exchange offer by a Third Party for any Shares representing 20% or more of the outstanding Shares is commenced, and the Company Board fails to recommend against acceptance of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement tender offer or exchange offer by its shareholders (including by taking no position with respect to the other Partiesacceptance of such tender offer or exchange offer by its shareholders) within ten (10) Business Days after the public announcement of such tender offer or exchange offer.
Appears in 2 contracts
Samples: Merger Agreement (Alibaba Group Holding LTD), Merger Agreement (AutoNavi Holdings LTD)
Termination. This Agreement may be terminated and the Sale may be Merger abandoned at any time prior to the Closing Effective Time, whether before or after receipt of the Company Shareholder Approval for any reason provided in paragraphs (with a) through (d) below; provided, that if any termination by APL also being an effective termination by APL shares of Company Common Stock are accepted for payment pursuant to the Offer, none of Parent, Merger Sub nor the Company may terminate this Agreement or abandon the Merger except pursuant to paragraphs (a) and any termination by Atlas also being an effective termination by ATN):(b)(ii) and (b)(iii) below:
(a) by the mutual written consent of APL the Company and Atlas, Parent duly authorized by action each of the APL Board and Atlas’s board their respective Boards of directors, respectivelyDirectors; or
(b) by either APL of the Company or AtlasParent, if:
(i) if (A) the Sale shall Offer or Company Shareholder Approval has not have been consummated or obtained on or before September 30, 2011 the date that is four months after the date of this Agreement (the “Outside Walk-Away Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(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 be available to a party if the failure of the Sale Offer to have been consummated on or before the Walk-Away Date was proximately caused by the failure of such party to perform any of its obligations under this Agreement and provided, further, that Parent may unilaterally extend, by notice delivered to the Company on or prior to the original Walk-Away Date, the Walk-Away Date for one month after the date above, in which case the Walk-Away Date shall be deemed to be for all purposes to be such date; or;
(ii) if an Order shall have been entered permanently restrainingany Restraint having the effect of (A) making acceptance for payment of, enjoining and payment for, the shares of Company Common Stock pursuant to the Offer or otherwise prohibiting the consummation of the Sale Merger illegal or otherwise prohibited or (B) enjoins Merger Sub from accepting for payment of, and such Order paying for, the shares of Company Common Stock pursuant to the offer or the Company or Parent from consummating the Merger shall be in effect and shall have become final and non-appealablenonappealable; or
(iii) the Company Shareholder Approval, provided that if required, shall not have been obtained at the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such OrderCompany Shareholders Meeting duly convened therefor or at any adjournment or postponement thereof; or
(c) by AtlasParent, if:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (x) would give rise to the failure of a condition set forth in Section 6.2(a7.1 or Annex I and (y) or 6.2(b) would cannot be satisfied at Closing; and (B) such untruthcured by the Company by the Walk-Away Date or, inaccuracyif curable, breach or failure to perform is not curable by cured within 45 days after the Outside DateCompany receives written notice from Parent of such breach; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement)a Company Adverse Recommendation Change shall have occurred; or
(d) by APLthe Company in accordance with Section 6.3(c), if the Company (i)(AA) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or has materially complied with its obligations under Sections 6.1 and 6.3 and (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by has paid the Outside Date. The Party desiring to terminate this Agreement Termination Fee pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties8.3(a).
Appears in 2 contracts
Samples: Merger Agreement (Watsco Inc), Merger Agreement (Acr Group Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, notwithstanding approval thereof by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the stockholders of the Company:
(a) by mutual written consent duly authorized by the Boards of APL Directors of Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlas:
(i) the Company if (A) the Sale Merger shall not have been consummated on or before September 30by February 28, 2011 2006 (the “Outside Date”); ) provided, however, that, that if (x) the Sale shall Effective Time has not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, such date by reason of the Outside Date shall become November 30, 2011; non-satisfaction of any of the conditions set forth in Section 7.1(b) or 7.1(c) and (By) all other conditions set forth in Article VII have heretofore been satisfied or waived or are then capable of being satisfied, then such date shall automatically be extended to March 14, 2006 (which shall then be the Party seeking “Outside Date”), (provided, further, that the right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(b) shall not have breached its obligations in be available to any party whose willful failure to fulfill any material respect obligation under this Agreement in any manner that shall have proximately caused has been the principal cause of or resulted in the failure of the Sale Merger to have been consummated by such date; oroccur on or before the Outside Date);
(iic) by either Parent or the Company if an Order a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have been entered issued a nonappealable final order, decree or ruling or taken any other action having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealable, Merger (provided that the Party party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(c) shall have complied with its obligations pursuant under Section 6.5 and used its reasonable best efforts to Section 5.1 with respect to have any such Order; ororder, decree, ruling or other action vacated or lifted);
(cd) by Atlaseither Parent or, if the Company has not willfully and materially breached the provisions of Section 6.4, the Company, if at the Company Stockholders Meeting (giving effect to any adjournment or postponement thereof), the requisite vote of the stockholders of the Company in favor of this Agreement and the Merger shall not have been obtained, provided that the right to terminate this Agreement under this Section 8.1(d) shall not be available to the Company if:
(i) if (A) (x) at such time the Company is in willful and material breach of any provision of Article III or has willfully and materially failed to fulfill any of its obligations under this Agreement, or any stockholder of the Company who is a party to a voting agreement with Parent and Merger Sub has willfully and materially failed to fulfill any of such stockholder’s voting obligations under such voting agreement; or
(ii) the Company shall have not paid to Parent in full the fee and expense reimbursement described in Section 8.3 to the extent such reimbursement is due under Section 8.3;
(e) by Parent, if the Company (i) shall have breached any of its representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccuratewarranties, or (yii) APL failed to perform or otherwise breached any of its covenants or other agreements contained in this Agreement, which breach or failure to perform would cause the conditions set forth in Section 7.2(a) or Section 7.2(b) to not be satisfied and which breach or failure, if capable of being cured, shall not have been cured within 10 business days following receipt by the Company of written notice of such breach or failure from Parent;
(f) by the Company, if Parent shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, which breach or failure to perform would cause the conditions set forth in Sections 7.3(a) or 7.3(b), to not be satisfied and which breach shall not have been cured within 10 business days following receipt by Parent of written notice of such breach from the Company;
(g) by Parent, if
(i) the Company’s Board of Directors (or any committee thereof) shall have failed to unanimously recommend the adoption and approval of this Agreement and the Merger in the Proxy Statement or shall have effected a Change of Recommendation;
(ii) the Company’s Board of Directors (or any committee thereof) shall have failed after the public announcement of an Acquisition Proposal to reconfirm its recommendation to adopt and approve this Agreement and the Merger within five days after Parent requests in writing that the Company’s Board of Directors (or any committee thereof) do so;
(iii) the Company’s Board of Directors (or any committee thereof) shall have approved or recommended to the stockholders of the Company an Acquisition Proposal (other than the Merger);
(iv) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been commenced (other than by Parent or an affiliate of Parent) and the Company’s Board of Directors (or any committee thereof) recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within ten (10) business days after the commencement of such tender or exchange offer, fails to recommend against acceptance of such offer; or
(v) for any reason the Company shall have failed to hold the Company Stockholders Meeting and submit the proposal to the Company’s stockholders by the date which is not curable by one (1) business day prior to the Outside Date.
(h) by Parent (i) if the Company or any of its officers or directors participate in discussions or negotiations in breach of Section 6.2; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) Company or any of the representations its officers or warranties directors are otherwise in material breach of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, Section 6.2; or (Biii) Atlas or ATN shall have breached or failed to perform any in the event of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in a breach of Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties6.4.
Appears in 2 contracts
Samples: Merger Agreement (Emc Corp), Merger Agreement (Captiva Software Corp)
Termination. This Agreement may be terminated and the Sale Arrangement may be abandoned at any time prior to the Closing (with Effective Time, notwithstanding any termination requisite approval by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the Shareholders of the Arrangement:
(a) by mutual written consent of APL Parent, Subco and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent, Subco or Atlas:
the Company if (i) any court of competent jurisdiction in the United States or Canada or any other Governmental Authority shall have issued an order (other than a temporary restraining order), decree or ruling, or taken any other action, restraining, enjoining or otherwise prohibiting the completion of the Arrangement (provided, however, that no Party may terminate this Agreement pursuant to this Section 7.01(b) prior to October 31, 2005 if the Party subject to such order, decree or ruling is using its commercially reasonable efforts to have such order, decree or ruling removed, unless such order, decree or ruling shall have become final and non-appealable), or (Aii) the Sale Effective Time shall not have been consummated occurred on or before September 30October 31, 2011 2005; provided, that the right to terminate this Agreement under this Section 7.01(b) shall not be available to any Party whose breach of 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;
(c) by Parent, Subco or the “Outside Date”Company if the Meeting shall have been held and the Shareholders shall have failed to approve the Arrangement at the Meeting; provided, that the right to terminate this Agreement under this Section 7.01(c) shall not be available to the Company if its breach of any obligation under this Agreement has been the cause of or resulted in the failure to obtain such approval by the Shareholders;
(d) by Parent or Subco if the Board of Directors of the Company or any committee thereof (i) shall withdraw, modify or change in a manner adverse to Parent or Subco, or refrain from giving its approval or recommendation of the Arrangement or any of the Transactions, (ii) recommends a Competing Transaction with respect to the Company to the Securityholders pursuant to Section 5.04 or (iii) fails to reaffirm its recommendation of the Arrangement by press release not later than the third (3rd) Business Day after the public announcement of a Competing Transaction (or, in the event that the Meeting will be scheduled to commence within such period, at least one (1) Business Day prior to the scheduled date of the Meeting); provided, however, that any such reaffirmation made by the Company shall not prevent or preclude the Board of Directors from fulfilling its fiduciary duties pursuant to, and as permitted under, Section 5.04 in respect of any Competing Transaction; it being acknowledged that, in the event that a reaffirmation is made by the Board of Directors in accordance with this Section 7.01 following the public announcement or commencement of any Competing Transaction, neither Parent nor Subco shall have the right to terminate this Agreement under this Section 7.01(d) (and no Fee or Reimbursable Expenses shall be payable under Section 7.03) unless and until the Company exercises its right to terminate this Agreement pursuant to Section 5.04(b);
(e) by the Company upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement such that the condition set forth in Section 6.03(a) would not be satisfied; provided, however, that, if such breach is curable by Parent or Subco through the Sale shall not have occurred by September 30, 2011, exercise of its commercially reasonable efforts and a New Merger Agreement shall have been executed, thenParent or Subco continues to exercise such commercially reasonable efforts, the Outside Date shall become November 30, 2011; and (B) the Party seeking to Company may not terminate this Agreement pursuant to under this Section 7.1(b)(i7.01(e) shall unless such breach is not have breached its obligations cured within 30 days from the date on which the Company delivers to Parent or Subco written notice setting forth in any material respect under this Agreement in any manner that shall have proximately caused or resulted in reasonable detail the failure of the Sale circumstances giving rise to have been consummated by such date; orbreach;
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(cf) by Atlas:
(i) if (A) (x) Parent or Subco upon a breach of any of the representations covenant or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements agreement set forth in this Agreement, in each case Agreement such that any the condition set forth in Section 6.2(a) or 6.2(b6.02(a)(i) would not be satisfied at Closingsatisfied; and (B) provided, however, that, if such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if Company through the Merger Agreement is terminated (provided thatexercise of its commercially reasonable efforts and the Company continues to exercise such commercially reasonable efforts, in order to Parent or Subco may not terminate this Agreement pursuant under this Section 7.01(f) unless such breach is not cured within 30 days from the date on which Parent or Subco delivers to this subclause (ii), Atlas must exercise its right the Company written notice setting forth in reasonable detail the circumstances giving rise to do so within thirty days of the termination of the Merger Agreement); orsuch breach;
(dg) by APL, if (i)(A) Parent or Subco upon a breach of any of the representations representation or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements warranty set forth in this Agreement, in each case Agreement such that any the condition set forth in Section 6.3(a) or 6.3(b6.02(a)(ii) would not be satisfied at Closingsatisfied; provided, and (ii) however, that, if such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring Company through the exercise of its commercially reasonable efforts and the Company continues to exercise such commercially reasonable efforts, Parent or Subco may not terminate this Agreement pursuant to under this Section 7.1 shall give notice of 7.01(g) unless such termination and breach is not cured within 30 days from the provisions of this Section 7.1 being relied date on to terminate this Agreement which Parent or Subco delivers to the other PartiesCompany written notice setting forth in reasonable detail the circumstances giving rise to such breach;
(h) by Parent or Subco upon a breach of the Support Agreement by Xxxxxx; or
(i) by the Company in accordance with Section 5.04(b).
Appears in 2 contracts
Samples: Arrangement Agreement (Mdsi Mobile Data Solutions Inc /Can/), Arrangement Agreement (Mdsi Mobile Data Solutions Inc /Can/)
Termination. This Agreement may be terminated and the Sale Mergers and the other transactions contemplated by this Agreement may be abandoned at any time prior to the Closing REIT Merger Effective Time, notwithstanding receipt of the Stockholder Approvals (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNexcept as otherwise specified in this Section 9.1):
(a) by mutual written consent of APL each of REIT II and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orREIT I Special Committee;
(b) by either APL REIT II or Atlasthe REIT I Special Committee:
(i) if (A) the Sale REIT Merger shall not have been consummated occurred on or before 11:59 p.m. New York time on September 30, 2011 2017 (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i9.1(b)(i) shall not have breached its obligations be available to any Party if the failure of such Party (and (A) in any material respect under this Agreement in any manner that shall have proximately caused or resulted in the case of REIT I, including the failure of the Sale other REIT I Parties, and (B) in the case of REIT II, including the failure of the other REIT II Parties) to perform or comply in all material respects with the obligations, covenants or agreements of such Party set forth in this Agreement shall have been the cause of, or resulted in, the failure of the REIT Merger to be consummated by such date; orthe Outside Date;
(ii) if any Governmental Authority of competent jurisdiction shall have issued an Order shall have been entered permanently restraining, enjoining restraining or otherwise prohibiting the consummation of the Sale transactions contemplated by this Agreement, and such Order shall have become final and non-appealablenonappealable; provided, provided that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii9.1(b)(ii) shall have complied not be available to a Party if the issuance of such final, non-appealable Order was primarily due to the failure of such Party (and (A) in the case of REIT I, including the failure of the other REIT I Parties, and (B) in the case of REIT II, including the failure of the other REIT II Parties) to perform or comply in all material respects with any of its obligations pursuant to Section 5.1 with respect to such Orderobligations, covenants or agreements under this Agreement; or
(iii) if the Stockholder Approvals shall not have been obtained at the Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof at which a vote on the approval of the REIT Merger and the Charter Amendment was taken; provided, that the right to terminate this Agreement under this Section 9.1(b)(iii) shall not be available to a Party if the failure to receive the Stockholder Approvals was primarily due to the failure of a Party to perform or comply in all material respects with any of its obligations, covenants or agreements under this Agreement;
(c) by Atlasthe REIT I Special Committee:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL REIT II Parties shall have breached or failed to perform any of its representations, warranties, obligations, covenants or agreements set forth in this Agreement, which breach or failure to perform, either individually or in each case such that the aggregate, if continuing at the REIT Merger Effective Time (A) would result in the failure of any condition of the conditions set forth in Section 6.2(a8.1 or Section 8.2 (a “REIT II Terminating Breach”) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach cannot be cured or failure to perform is not curable waived by the Outside Date; provided, that the REIT I Special Committee shall not have the right to terminate this Agreement pursuant to this Section 9.1(c)(i) if a REIT I Terminating Breach shall have occurred and be continuing at the time the REIT I Special Committee delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(c)(i); or
(ii) if REIT I has accepted a Superior Proposal by a Go Shop Bidder within five (5) Business Days of the Merger Agreement is terminated (provided thatGo Shop Period End Time in accordance with the provisions of Section 7.3(c) herein; provided, in order to terminate however, that this Agreement pursuant may not be so terminated unless concurrently with the occurrence of such termination the payment required by Section 9.3(b) is made in full to this subclause (ii)REIT II and the definitive agreement relating to the Superior Proposal is entered into, Atlas must exercise its right to do so within thirty days of and in the event that such definitive agreement is not concurrently entered into and such payment is not concurrently made, such termination of the Merger Agreement)shall be null and void; or
(d) by APL, REIT II:
(i) if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN REIT I Parties shall have breached or failed to perform any of their respective its representations, warranties, obligations, covenants or agreements set forth in this Agreement, which breach or failure to perform, either individually or in each case such that the aggregate, if continuing at the REIT Merger Effective Time (A) would result in the failure of any condition of the conditions set forth in Section 6.3(a8.1 or Section 8.3 (a “REIT I Terminating Breach”) or 6.3(band (B) would cannot be satisfied at Closing, and (ii) such untruth, inaccuracy, breach cured or failure to perform is not curable waived by the Outside Date. The Party desiring ; provided, that REIT II shall not have the right to terminate this Agreement pursuant to this Section 7.1 9.1(d)(i) if a REIT II Terminating Breach shall give have occurred and be continuing at the time REIT II delivers notice of such termination and the provisions of this Section 7.1 being relied on its election to terminate this Agreement pursuant to this Section 9.1(d)(i); or
(ii) if, at any time following the date that is five (5) Business Days after the Go Shop Period End Time and prior to the Stockholder Approvals, (A) the REIT I Board or any committee thereof, for any reason, shall have effected an Adverse Recommendation Change, (B) the REIT I Board or any committee thereof shall have approved, adopted or publicly endorsed or recommended any Acquisition Proposal, (C) a tender offer or exchange offer for any shares of REIT I Common Stock that constitutes an Acquisition Proposal (other Partiesthan by REIT II or any of its Affiliates) is commenced and the REIT I Board fails to recommend against acceptance of such tender offer or exchange offer by the stockholders of REIT I and to publicly reaffirm the REIT I Board Recommendation within ten (10) Business Days of being requested to do so by REIT II, (D) the REIT I Board or any committee thereof fails to include the REIT I Board Recommendation in the Proxy Statement, or (E) REIT I shall have materially violated any of its obligations under Section 7.3, or shall be deemed pursuant to the last sentence of Section 7.3(b) to have materially violated any of its obligations under Section 7.3 (other than any immaterial or inadvertent violations thereof that did not result in an alternative Acquisition Proposal).
Appears in 2 contracts
Samples: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
Termination. This As between the Company on the one hand and any Investor on the other hand, this Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):of such Investor:
(a) by mutual written consent of APL the Company and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orsuch Investor;
(b) by either APL the Company, upon written notice to such Investor, in the event that any of the conditions of Closing set forth in SECTION 1.3(b) are not satisfied, or Atlas:
(i) if (A) waived by the Sale shall not have been consummated Company, as of 11:59 p.m. Hong Kong time on or before September 30, 2011 (the “Outside Long Stop Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(iSECTION 5.1(b) shall not have breached be available to the Company if its obligations in failure to fulfill any material respect obligation under this Agreement in any manner that shall have proximately caused been the primary cause of, or shall have resulted in in, the failure of the Sale Closing with respect to have been consummated such Investor to occur on or prior to such date;
(c) by such date; or
(ii) if an Order shall have been entered permanently restrainingInvestor, enjoining or otherwise prohibiting with respect to its own rights and obligations, upon written notice to the consummation of Company, in the Sale and such Order shall have become final and non-appealable, provided event that the Party seeking conditions of Closing set forth in SECTION 1.3(a) are not satisfied, or waived by such Investor, as of 11:59 p.m. Hong Kong time on the Long Stop Date; provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b)(iiSECTION 5.1(c) shall not be available to such Investor if its failure to fulfill any obligation under this Agreement shall have complied with its obligations pursuant to Section 5.1 been the primary cause of, or shall have resulted in, the failure of the Closing with respect to such Order; or
Investor to occur on or prior to such date (c) by Atlas:
(i) if (A) (x) any it being understood that each of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurateremaining Investors may, at their election, waive any such condition, deem it satisfied, or (y) APL shall have breached or failed otherwise proceed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at consummate the Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APLthe Company, if (i)(A) upon written notice to such Investor, or by such Investor, upon written notice to the Company, 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 representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in transactions contemplated by this Agreement, in each case and such order, decree, injunction or other action shall have become final and non-appealable prior to the Closing Date; provided, however, that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring right to terminate this Agreement pursuant to this Section 7.1 SECTION 5.1(d) shall give notice of such termination and the provisions not be available to any party hereto that has breached in any material respect any provision of this Section 7.1 being relied on to terminate this Agreement to in any manner that was the primary cause of the issuance by such Governmental Entity of any such order, decree or injunction or other Partiesaction.
Appears in 2 contracts
Samples: Note Purchase Agreement (GDS Holdings LTD), Note Purchase Agreement (GDS Holdings LTD)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether before or after the Company Stockholder Approval:
(a) by mutual written consent of APL the Parent, Merger Sub and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL the Parent or Atlasthe Company:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30by December 15, 2011 (2003, but the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached be available to any party whose failure to perform any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Merger to have been be consummated by such date; ortime;
(ii) if an Order the Company Stockholder Approval shall not have been entered permanently restraining, enjoining obtained at the Company stockholders meeting duly convened therefor (including at any adjournment or otherwise prohibiting the consummation postponement thereof);
(iii) if any Restraint having any of the Sale effects set forth in Section 6.1(b) shall be in effect and such Order shall have become final and non-appealablenonappealable, provided that but the Party party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii7.1(b)(iii) shall have complied with its obligations pursuant used commercially reasonable efforts to Section 5.1 with respect prevent the entry of and to remove such Order; orRestraint;
(c) by Atlas:
(i) the Parent, if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform in any material respect or upon the inaccuracy of any of its representations, warranties, covenants or other agreements set forth contained in this Agreement, in each case such that any which breach, failure to perform or inaccuracy (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; ), and (Bii) is incapable of being or has not been cured by the Company within 10 calendar days following its receipt of written notice from the Parent of such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); orperform;
(d) by APLthe Parent, if (i)(Ai) the Company shall have breached Section 5.3 or (ii) the Company's board of directors (or any committee thereof) shall have (whether or not permitted by this Agreement) (A) modified, withdrawn or supplemented their recommendation of this Agreement, the representations Merger, the Closing or warranties the performance of Atlas herein shall be untrue any duties or inaccurate on transactions required hereunder in a manner adverse to the date Parent; (B) recommended any Takeover Proposal other than the Parent's proposal, or (C) failed to affirm its recommendation of this Agreement or shall thereafter become untrue or inaccurateand the transactions contemplated hereby within five days of a request to do so by the Parent.
(e) by the Company, or (B) Atlas or ATN if the Parent shall have breached or failed to perform in any material respect any of their respective its representations, warranties, covenants or other agreements set forth contained in this Agreement, in each case such that any which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing), and (ii) is incapable of being or has not been cured by the Parent within 30 calendar days following its receipt of written notice from the Company of such untruth, inaccuracy, breach or failure to perform is not curable perform; or
(f) by the Outside Date. The Party desiring to terminate Company in accordance with Section 5.3(c); provided that, in order for the termination of this Agreement pursuant to this Section 7.1 7.1(f) to be deemed effective, the Company shall give notice of such termination and the have complied with all provisions of this Section 7.1 being relied on to terminate this Agreement to 5.3, including the other Partiesnotice provisions therein, and with applicable requirements of Section 5.9, including the payment of the Termination Fee.
Appears in 2 contracts
Samples: Merger Agreement (Horizon Organic Holding Corp), Merger Agreement (Dean Foods Co/)
Termination. This Agreement may be terminated and the Sale transactions contemplated hereby (including the Merger) may be abandoned at any time prior to the Closing Effective Time, whether before or after the receipt of the Requisite Company Shareholder Approval (with any it being agreed that the party hereto terminating this Agreement pursuant to this Section 7.1 (other than Section 7.1(a)) shall give prompt written notice of such termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNto the other party or parties hereto):
(a) by mutual written consent agreement of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectivelyCompany; or
(b) by either APL Parent or Atlas:
the Company: if the Effective Time has not occurred prior to 11:59 p.m. (iNew York City time) if (A) the Sale shall not have been consummated on or before September 30October 31, 2011 2013 (the “Outside Termination Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(b) shall not have breached its obligations be available to any party hereto whose action or failure to act has been the principal cause of or principally resulted in any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale conditions to have been consummated by the Merger set forth in Article VI having failed to be satisfied on or before the Termination Date, and such dateaction or failure to act constitutes a material breach of this Agreement; or
(iic) by either Parent or the Company, if an Order any Governmental Authority (i) shall have been entered permanently restrainingenacted, enjoining issued, promulgated, entered, enforced or otherwise prohibiting deemed applicable to the Merger any Law that is in effect and has the effect of making the consummation of the Sale Merger illegal in any jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the Merger in any jurisdiction, or (ii) shall have issued or granted any Order that remains in effect and has the effect of making the Merger illegal in any jurisdiction or which has the effect of prohibiting or otherwise preventing the consummation of the Merger in any jurisdiction, and such Order shall have has become final and non-appealable; or
(d) by either Parent or the Company, provided if the Company shall have failed to obtain the Requisite Company Shareholder Approval at the Company Shareholder Meeting (or any postponement or adjournment thereof at which a vote was taken on the Merger Proposal); or
(e) by the Company, in the event (i) of a breach of any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement or (ii) that any of the representations and warranties of Parent and Merger Sub set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in either case, such that the Party seeking conditions to the Merger set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as of the time of such breach or as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by Parent or Merger Sub or such inaccuracies in the representations and warranties of Parent or Merger Sub are curable by Parent or Merger Sub through the exercise of commercially reasonable efforts, then the Company shall not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(ii7.1(e) shall have complied with its obligations until the earlier to occur of (A) the expiration of a thirty (30) calendar day period after delivery of written notice from the Company to Parent of such breach or inaccuracy, as applicable, or (B) Parent and/or Merger Sub (as applicable) ceasing to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that Parent and/or Merger Sub (as applicable) continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 5.1 with respect to 7.1(e) if such Orderbreach or inaccuracy by Parent or Merger Sub is cured within such thirty (30) calendar day period); or
(cf) by AtlasParent:
(i) if in the event (A) (x) of a breach of any covenant or agreement on the part of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements Company set forth in this AgreementAgreement or (B) that any representation or warranty of the Company set forth in this Agreement shall have been inaccurate when made or shall have become inaccurate, in each case either case, such that any condition the conditions to the Merger set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied at Closing; and (B) as of the time of such untruth, inaccuracy, breach or failure to perform is not as of the time such representation and warranty became inaccurate; provided, however, that notwithstanding the foregoing, in the event that such breach by the Company or such inaccuracies in the representations and warranties of the Company are curable by the Outside Date; or
(ii) if Company through the Merger Agreement is terminated (provided thatexercise of commercially reasonable efforts, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein then Parent shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring permitted to terminate this Agreement pursuant to this Section 7.1 shall give 7.1(f)(i) until the earlier to occur of (1) the expiration of a thirty (30) calendar day period after delivery of written notice from Parent to the Company of such termination breach or inaccuracy, as applicable, or (2) the ceasing by the Company to exercise commercially reasonable efforts to cure such breach or inaccuracy, provided that the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that Parent may not terminate this Agreement pursuant to this Section 7.1(f)(i) if such breach or inaccuracy by the Company is cured within such thirty (30) calendar day period); or
(ii) in the event that, following the execution and delivery of this Agreement, there shall have occurred or exist a Material Adverse Effect on the Company (whether or not events or circumstances occurring prior to the execution and delivery of this Agreement caused or contributed to the occurrence of such Company Material Adverse Effect); or
(iii) in the event that any of the following shall have occurred: (A) the Company shall have breached (or be deemed, pursuant to the terms hereof, to have breached) the provisions of Section 5.1, Section 5.4 or Section 5.5 (other than an inadvertent and immaterial breach that does not result in an Acquisition Proposal); (B) the Company Board or any committee thereof shall have for any reason effected a Company Board Recommendation Change (whether or not in compliance with the terms and conditions of this Agreement) or provided written notice to Parent of its intent to effect a Company Board Recommendation Change; (C) the Company shall have failed to include the Company Board Recommendation in the Proxy Statement/Prospectus; (D) the Company Board or any committee thereof shall have for any reason approved, or recommended that shareholders of the Company approve, any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (E) the Company shall have entered into a letter of intent, memorandum of understanding or Contract (other than a confidentiality agreement contemplated by Section 7.1 being relied on 5.1(c)) accepting or agreeing to terminate this Agreement any Acquisition Proposal or Acquisition Transaction (whether or not a Superior Proposal); (G) a tender offer or exchange offer for Company Common Stock is commenced and, within ten (10) Business Days after the public announcement of the commencement of such tender or exchange offer, the Company shall not have issued a public statement (and filed a Schedule 14D-9 pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the other PartiesExchange Act) unconditionally reaffirming the Company Board Recommendation and unconditionally recommending that the Company shareholders reject such tender or exchange offer and not tender any shares of Company Common Stock into such tender or exchange offer; or (H) the Company Board shall have failed to publicly reconfirm, without qualification, the Company Board Recommendation prior to receipt of the Requisite Company Shareholder Approval, within ten (10) Business Days of a written request from Parent to do so.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Market Leader, Inc.)
Termination. This Agreement may be terminated and the Sale transactions contemplated hereby may be abandoned at any time prior to the Closing Satisfaction Date (with any termination by APL also being an effective termination by APL Sub or the Effective Time, in the case of clauses (a) and any termination by Atlas also being an effective termination by ATN(b)):
(a) by mutual written consent of APL the Controlling Partnership and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orSeller;
(b) by either APL the Controlling Partnership or Atlas:the Seller if any Governmental Entity of competent jurisdiction shall have issued an order, injunction, judgment, award or decree or taken any other action permanently enjoining, restraining or otherwise prohibiting the Purchase and Sale and such order, injunction, judgment, award, decree or other action shall have become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b) shall not be available to any party who has not used its reasonable best efforts to cause such order, injunction, judgment, award, decree or other action to be vacated, annulled or lifted;
(ic) by either the Controlling Partnership or the Seller if the consent solicitation contemplated by the Consent Solicitation Documents expires (Aand is not extended) and the Sale Requisite Unitholder Consent is not obtained; provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to any party whose failure to fulfill any of its obligations under this Agreement has been a principal cause of the failure of the Requisite Unitholder Consent to be obtained;
(d) by either the Controlling Partnership or the Seller if the Satisfaction Date shall not have been consummated occurred on or before September 30October 31, 2011 2009 (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(d) shall not have breached be available to any party whose failure to fulfill any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused has been a principal cause of or has resulted in the failure of the Sale Satisfaction Date to have been consummated by occur on or before such date;
(e) by the Controlling Partnership if any of the conditions set forth in Section 7.1 or Section 7.2 shall become incapable of being satisfied on or before the Outside Date; or
provided that if the condition giving rise to the right to terminate under this Section 8.1(e) is incapable of being satisfied due to a breach by the Seller of any of its representations, warranties, covenants or agreements in this Agreement or the failure of any representation or warranty of the Seller to be true, the Controlling Partnership shall not be permitted to terminate this Agreement unless such breach or failure to be true has not been cured prior to the earlier of (i) 30 days after the giving of written notice by the Controlling Partnership to the Seller of such breach or failure to be true and (ii) if an Order shall have been entered permanently restrainingthe Outside Date; provided, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealablefurther, provided that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(e) shall have complied with its obligations pursuant not be available to the Controlling Partnership if the Controlling Partnership is then in breach of any representation, warranty, covenant or agreement in this Agreement that would cause any of the conditions set forth in Section 5.1 with respect 7.1 or Section 7.3 not to such Orderbe satisfied; or
(cf) by Atlas:
(i) the Seller if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition conditions set forth in Section 6.2(a7.1 or Section 7.3 shall become incapable of being satisfied on or before the Outside Date; provided, that if the condition giving rise to the right to terminate under this Section 8.1(f) is incapable of being satisfied due to a breach by the Controlling Partnership, the Purchaser or 6.2(b) would Holdings of any of their respective representations, warranties, covenants or agreements in this Agreement or the failure of any representation or warranty of the Controlling Partnership, the Purchaser or Holdings to be true, the Seller shall not be satisfied at Closing; and (B) permitted to terminate this Agreement unless such untruth, inaccuracy, breach or failure to perform is be true has not curable been cured prior to the earlier of (i) 30 days after the giving of written notice by the Seller to the Controlling Partnership, the Purchaser or Holdings, as applicable, of such breach or failure to be true and (ii) the Outside Date; or
(ii) if provided, further that the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 8.1(f) shall give notice not be available to the Seller if the Seller is then in breach of such termination and any representation, warranty, covenant or agreement in this Agreement that would cause any of the provisions of this conditions set forth in Section 7.1 being relied on or Section 7.2 not to terminate this Agreement to the other Partiesbe satisfied.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (KKR & Co. L.P.), Purchase and Sale Agreement (KKR & Co. L.P.)
Termination. 12.1 This Agreement may be terminated as follows:
12.1.1 upon agreement in writing between Bidder and the Sale may be abandoned Company at any time prior to the Closing (Effective Date;
12.1.2 by the Company, in accordance with any termination Clause 10.3.2(b);
12.1.3 by APL also being an effective termination either Bidder or the Company, by APL Sub and any termination by Atlas also being an effective termination by ATN):written notice to the other, if:
(a) by mutual written consent of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; or
Circular is not distributed to the Company Shareholders in accordance with Clause 5.1 (b) by either APL or Atlas:
(i) if (A) provided that the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(iClause 12.1.3(a) shall not have breached its obligations in be available to a party whose breach of any material respect under provision of this Agreement in any manner that shall have proximately caused or resulted been the primary cause of such failure to distribute the Circular in the failure of the Sale to have been consummated by such date; oraccordance therewith);
(iib) if an Order injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale Acquisition and such Order injunction shall have become final and non-appealable, appealable (provided that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(iiClause 12.1.3(b) shall not be available to a party whose breach of any provision of this Agreement shall have complied with its obligations pursuant to Section 5.1 with respect to been the primary cause of such Orderinjunction); or
(c) any Condition for the benefit of the terminating party which has not been waived (or is incapable of waiver) is (or has become) incapable of satisfaction by Atlasthe Long Stop Date;
12.1.4 by Bidder, by written notice to the Company, if:
(ia) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate Announcement is not released by 12 p.m. London time on the date next Business Day immediately following execution of this Agreement or such later time or date as Bidder and the Company may agree in writing;
(b) the Company Board notifies Bidder or publicly states that it no longer recommends (or intends to recommend) that the Company Shareholders vote in favour of the Acquisition;
(c) an intentional or material breach of Clause 10.2 occurs that results in an Acquisition Proposal;
(d) following the Court Meeting or the General Meeting the Company Board notifies Bidder in writing or publicly states that the Company will not seek the sanctioning of the Scheme by the Court;
(e) (i) the Company Board effects a Company Adverse Change Recommendation, (ii) the Company Board shall thereafter become untrue or inaccuratehave failed to include the Company Board Recommendation in the Circular when mailed, or (yiii) APL the Company Board shall have breached failed to reaffirm the Company Board Recommendation within 10 days after Bidder so requests in writing or, if earlier, three days prior to the General Meeting (it being understood the Company will have no obligation to make such reaffirmation on more than three occasions); or
(f) the Company breaches any of its representations and warranties set out in Clause 11 or failed fails to perform any of its covenants covenant or agreements set forth obligation in this Agreement, in each case Agreement on the part of the Company such that any the condition set forth in Section 6.2(aclause (d) or 6.2(b) of the Announcement would not be satisfied at Closing; and (B) cannot be cured by the Company by the Long Stop Date, or if capable of being cured in such untruthtime period, inaccuracy, shall not have been cured within 30 days of the date Bidder gives the Company written notice of such breach or failure to perform is perform; provided, however, that Bidder shall not curable by have the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order right to terminate this Agreement pursuant to this subclause Clause 12.1.4(f) if either Bidder or Bidco is then in material breach of any representation, warranty, covenant or obligation hereunder; each of (ii)a) to (f) being a “Relevant Withdrawal Event”; provided that for the purposes of this Clause 12.1.4, Atlas must exercise its right to do so within thirty days none of the termination of the Merger Agreement); or
following shall itself constitute a Relevant Withdrawal Event: (d) by APL, if (i)(Ai) any of the representations Company Director(s) not joining (or warranties not continuing to participate) in any recommendation or intended recommendation so long as such recommendation or intended recommendation is concurrently maintained and reconfirmed by at least a majority of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, entire the Company Board; and (ii) any holding statement(s) issued by the Company Board to the Company Shareholders following a change of circumstances so long as any such untruthholding statement contains an express statement that such recommendation is not withdrawn and does not contain a statement that the Company Board intends to withdraw such recommendation;
12.1.5 by the Company, inaccuracyby written notice to Bidder, if Bidder or Bidco breaches any of its representations and warranties set out in Clause 11 or fails to perform any covenant or obligation in this Agreement on the part of Bidder or Bidco, in each case, if such breach or failure would reasonably be expected to prevent Bidder or Bidco from consummating the transactions contemplated by this Agreement and such breach or failure cannot be cured by Bidder or Bidco, as applicable, by the Long Stop Date, or if capable of being cured in such time period, shall not have been cured within 30 days of the date Bidder gives the Company written notice of such breach or failure to perform is perform; provided, however, that the Company shall not curable by have the Outside Date. The Party desiring right to terminate this Agreement pursuant to this Section 7.1 Clause 12.1.5 if the Company is then in material breach of any representation, warranty, covenant or obligation hereunder; or
12.1.6 by either Bidder or the Company, by written notice to the other, if the Effective Date has not occurred by the Long Stop Date, provided that, notwithstanding any other provision of this Agreement, the right to terminate this Agreement pursuant to this Clause 12.1.6 shall give notice not be available to any party whose material breach of such termination and this Agreement has caused the failure of the Effective Date to have occurred by the Long Stop Date.
12.2 Subject to the provisions of this Section 7.1 being relied Agreement which are expressly provided to survive termination in Clause 12.5, and without prejudice to any liability of any party in respect of any antecedent breach hereof or to any accrued rights of any party hereto, if this Agreement is terminated pursuant to this Clause 12, this Agreement shall terminate and there shall be no other liability between the Company, on the one hand, or Bidder or Bidco, on the other hand.
12.3 Bidder agrees that Rule 35 of the Code shall apply notwithstanding the termination of this Agreement or the withdrawal or lapse of the Acquisition provided that Bidder will not be bound by (i) Rule 35 in the event any of the circumstances referred to in Note 1(a)(i)-(iv) occurs (provided, however that any determination of whether there has been a material change of circumstances will in the absence of agreement between the Parties, be made by the Code Expert) or (ii) Rule 35.4 of the Code following termination of this Agreement where the Company Directors have either: (i) not obtained that competing offeror’s undertaking to be bound by Rule 35.4 of the Code in connection with its Acquisition Proposal (“Competing Bidder Undertaking”); or (ii) waived or released or is not taking reasonable steps to enforce, any actual or threatened breach of, the Competing Bidder Undertaking, in accordance with its terms.
12.4 The Company undertakes that, prior to any adjournment of the Court Meeting or the General Meeting or any delay of the Court Hearing beyond the expected date for such meeting or hearing (as the case may be) as set out in the Circular, it will seek an undertaking from any competing offeror in respect of a then existing Acquisition Proposal to:
12.4.1 clarify its intentions with respect to its Acquisition Proposal by no later than seven days prior to any proposed date for such adjourned Court Meeting or General Meeting or delayed Court Hearing;
12.4.2 in the event that a competitive situation between such competing offeror and Bidder continues to exist in the later stage of the offer period and such competing offeror has submitted an Acquisition Proposal that the Company Board acting reasonably believes may lead to a Superior Proposal, submit to an auction procedure, the rules of which shall be determined by the Code Expert; and
12.4.3 be bound by Rule 35 of the Code, as if it applied to the Company.
12.5 The Confidentiality Agreement and Clauses 1, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive termination of this Agreement and the termination of this Agreement and no party shall have any liability other than for fraud or wilful and material breach of this Agreement prior to termination.
12.6 No party shall have any right to terminate this Agreement, whether under this Agreement or otherwise, except as expressly set out in Clause 12.1 (and if, by operation of law, any party has such a right, it undertakes not to the other Partiesexercise such right).
Appears in 2 contracts
Samples: Implementation Agreement, Implementation Agreement (Nightstar Therapeutics PLC)
Termination. This Subject to Section 9.2 hereof, this Agreement and the transactions contemplated hereby may be terminated and the Sale may be abandoned abandoned:
(a) at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) Date by mutual written consent of APL Purchaser and Atlas, by action of the APL Board and Atlas’s board of directors, respectivelySeller; or
(b) by either APL Purchaser or Atlas:
Seller at any time after December 31, 1999 (ithe "Termination Date") if (A) the Sale Closing shall not have been consummated occurred on or before September 30, 2011 (the “Outside Date”)prior to such date; provided, however, thatthat either party may extend the Termination Date for an additional three months from such originally scheduled Termination Date if all the conditions to consummation of the transactions contemplated hereby set forth in Article VII hereof have either been satisfied or are then capable of being satisfied by such date, if other than the Sale conditions set forth in Sections 7.3.3 and 7.4.3; and provided further, that the right to terminate this Agreement under this Section 9.1(b) shall not have occurred 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 Closing to occur on or before the Termination Date;
(c) by September 30Purchaser or Seller at any time within 30 days following the issuance of a ruling by the RCA to the effect that the transactions contemplated by this Agreement to occur at Closing will not be authorized to occur; or
(d) at any time on or before the Closing Date, 2011, and a New Merger Agreement by Purchaser if Seller shall have been executedfailed to perform, thensatisfy and comply with, in any material respect, on the Outside Date date specified, any material term, condition or provision herein required of Seller on or before the Closing Date;
(e) at any time on or before the Closing Date, by Seller if Purchaser shall have failed to perform, satisfy and comply with, in any material respect, on the date specified any material term, condition or provision herein required of Purchaser on or before the Closing Date; or
(f) by Purchaser at any time on or before the Closing Date, upon the immediate payment by Purchaser to Seller of a termination fee of $10 million, upon receipt of which by Seller (i) such termination shall become November 30, 2011; effective and (Bii) Seller shall promptly return the Party seeking original Letter of Credit to terminate Purchaser. The power of termination and abandonment of the transactions contemplated by 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 9.1 will be effective only after written notice thereof, signed on behalf of the Sale to have been consummated party for which it is given by such date; or
(ii) if an Order a duly authorized officer, shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement given to the other Partiesparty hereto.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Semco Energy Inc), Purchase and Sale Agreement (Ocean Energy Inc /Tx/)
Termination. (a) This Agreement may be terminated and the Sale may be abandoned at any time prior by either Emmis or Purchaser upon written notice to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and Atlasother Party, by action of the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL or Atlasif:
(i) if the other Party is in material breach of this Agreement and such breach has been neither cured or agreed to be cured in a manner reasonably acceptable to the non-breaching Party within the cure period allowed under subsection (Ae) below nor waived by the Sale shall not have been consummated on Party giving such termination notice and in each such case such breach would give rise to the failure of a condition in Section 4.2, Section 4.3, Section 4.4 or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) Section 4.5 provided that the Party seeking to terminate is not in material breach of 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 Sale to have been consummated by such date; orAgreement;
(ii) if an Order a court of competent jurisdiction or Governmental Authority shall have been entered issued an Order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale transactions contemplated by this Agreement and such Order Order, decree, ruling or other action shall have become final and non-appealablenonappealable; or
(iii) Closing has not occurred by December 31, 2019; provided, however, that such date shall be extended to March 31, 2020 if, on or before December 31, 2019, either (A) the SEC shall not have completed its review of the Mediaco Form 10 or (B) the FCC Consents have not been granted by initial order; further provided that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii11.1(a)(iii) shall have complied with its obligations pursuant not be available to Section 5.1 with respect a party whose breach of this Agreement caused the Closing not to such Order; oroccur.
(b) This Agreement may be terminated by mutual written consent of Emmis and Purchaser.
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to Emmis may terminate this Agreement pursuant by written notice to Purchaser in the event that Purchaser fails to close on the transactions contemplated by this subclause Agreement when all of Mediaco’s and Purchaser’s Closing conditions have been satisfied in full (ii)or would be satisfied with delivery at Closing and Emmis stands ready, Atlas must exercise its right willing and able to do so within thirty days of the termination of the Merger Agreement); ormake such delivery) or waived by Mediaco and Purchaser.
(d) Purchaser may terminate this Agreement by APL, if (i)(A) any of written notice to Emmis in the representations or warranties of Atlas herein shall be untrue or inaccurate event that Emmis fails to close on the date of transactions contemplated by this Agreement when all Purchaser’s Closing conditions have been satisfied in full (or shall thereafter become untrue would be satisfied with delivery at Closing and Purchaser stands ready, willing and able to make such delivery) or inaccurate, waived by Emmis.
(e) If either Party believes the other to be in breach or (B) Atlas or ATN shall have breached or failed to perform any default of their respective covenants or agreements set forth in this Agreement, the non-defaulting Party shall, prior to exercising its right to terminate under Section 11.1(a)(i), provide the defaulting Party with notice specifying in each case reasonable detail the nature of such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or default. Except for a failure to perform pay its respective purchase price, the defaulting Party shall have fifteen (15) days from receipt of such notice to cure such default or if such default is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice capable of being cured in fifteen days of such termination and notice, the provisions of this Section 7.1 being relied on defaulting Party shall have agreed to terminate this Agreement cure such default in a manner reasonably acceptable to the other Partiesnon-breaching Party.
Appears in 2 contracts
Samples: Contribution and Distribution Agreement (Mediaco Holding Inc.), Contribution and Distribution Agreement (Mediaco Holding Inc.)
Termination. This Agreement 12.1 The employment of the Employee may be terminated and by the Sale may Company without notice or payment in lieu of notice:-
12.1.1 if the Employee shall become of unsound mind or be abandoned or become a patient under the Mental Health Xxx 0000;
12.1.2 if the Employee shall at any time prior be prevented by illness or accident or other incapacity from properly performing his duties for a period of three consecutive months or for more than 90 working days in any consecutive 12 months except where such incapacity arises out of the performance of his duties or where the Employee is entitled, during his employment to benefit under any such scheme as is referred to in Clause 4.7. In the event that any benefit is payable to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
(a) by mutual written consent of APL and AtlasEmployee under such a scheme, by action the Company shall not for so long as such benefit continues to be payable, terminate the employment of the APL Employee on grounds of illness or incapacity, but any other remuneration payable to the Employee under this Agreement shall be reduced by a sum equal to the amount of such benefit as is paid under the said scheme;
12.1.3 if the Employee shall have committed either any serious breach or (after warning) repeated or continued any material breach of his obligations under this Agreement or persistently failed or neglected to carry out his duties under this Agreement or failed to maintain a satisfactory standard of conduct or performance within a reasonable time after receiving written warning from the Board and Atlas’s board relating to the Employee's conduct and/or performance;
12.1.4 if the Employee shall have been guilty of directorsconduct (whether or not in the course of his employment) tending to bring himself, respectivelythe Company or any Group Company into disrepute or otherwise to affect prejudicially the interests of the Company or any Group Company;
12.1.5 if the Employee shall have committed an act of bankruptcy or compounded with his creditors generally;
12.1.6 if the Employee is convicted of any criminal offence (excluding an offence under the road traffic legislation in the United Kingdom or elsewhere in respect of which a custodial sentence is not imposed on the Employee);
12.1.7 if the Employee shall be or become prohibited by law from being a director of any company; or
12.1.8 if for any reason the Employee shall (botherwise than at the request of the Company) by either APL or Atlas:resign as a director of the Company.
(i) if (A) 12.2 If a disciplinary matter arises involving the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, thenEmployee, the Outside Date shall become November 30, 2011; Employee may be suspended on such terms and (B) conditions as 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 Board of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealable, Directors may reasonably determine provided that the Party seeking Employee's salary and benefits shall not be reduced or withheld.
12.3 The employment of the Employee may be terminated by either party giving to the other notice in accordance with Clause 2.2 above.
12.4 Notwithstanding any other provisions, the employment of the Employee shall automatically terminate when the Employee reaches his retirement date on his 65th birthday.
12.5 The termination by the Company of the Employee's employment shall be without prejudice to any claim which the Company may have for damages arising from any breach by the Employee giving rise to such termination.
12.6 In the event that either party gives notice to terminate the employment the Employee agrees:-
12.6.1 that for a period not exceeding the period of notice in Clause 2.2 above the Board may in its absolute discretion require the Employee to perform only such duties as it may allocate to him or not to perform any of his duties and may require him not to have any contact with Clients of the Company or any Group Company nor any contact (other than purely social contact) with such employees of the Company and any Group Company as the Board shall determine and/or may exclude him from any premises of the Company or of any Group Company (without providing any reason therefor); and
12.6.2 that such action taken on the part of the Company shall not constitute a breach of this Agreement pursuant of any kind whatsoever nor shall the Employee have any claim against the Company in respect of any such action; PROVIDED ALWAYS that throughout the period of any such action the Employee's salary and contractual benefits shall not cease to this Section 7.1(b)(ii) be paid or provided (unless and until his employment shall have complied with its obligations pursuant be terminated).
12.7 The Company may elect to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any terminate the contract immediately and make a payment in lieu of the representations or warranties remainder of APL herein shall be untrue or inaccurate on the date fixed term of this Agreement or shall thereafter become untrue any applicable period of notice. The Employee is required to mitigate his loss where he is dismissed and any payment in lieu of notice may be reduced to take account of mitigation and to take account of the payment or inaccurate, any part of it being paid earlier than the salary or (y) APL shall have breached or failed benefits to perform any of its covenants or agreements set forth in which he would otherwise be entitled under this Agreement, in each case such that .
12.8 If the Employee fails to make himself available for work during any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days period of the notice of termination of the Merger Agreement); or
(d) by APLEmployee's employment, if (i)(A) any other than at the request of the representations Company pursuant to clause 12.6 or warranties with the permission of Atlas herein the Board, the Employee shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach entitled to any payment of salary or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice any benefits in respect of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesabsence.
Appears in 2 contracts
Samples: Service Agreement (Cambridge Technology Partners Massachusetts Inc), Service Agreement (Cambridge Technology Partners Massachusetts Inc)
Termination. This Agreement may be terminated and the Sale Mergers may be abandoned at any time prior to the Closing First Effective Time, whether before or after the Company Shareholder Approval has been obtained (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNexcept as otherwise stated below):
(a) by mutual written consent of APL the Company and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orParent;
(b) by either APL the Company or AtlasParent:
(i) if (A) the Sale shall First Merger is not have been consummated on or before September 30April 27, 2011 2017 (as such date may be extended pursuant to the immediately succeeding proviso, the “Outside End Date”); provided, however, thatthat if on the End Date, any of the conditions to Closing set forth in (x) Section 9.01(c) (if the Sale reason for the failure of such condition is an Order under any Competition Law) or (y) Section 9.01(e) shall not have occurred by September 30, 2011, and a New Merger Agreement been satisfied but all other conditions to Closing set forth in Article 9 shall have been executedsatisfied or waived (other than those conditions that by their nature can only be satisfied on the Closing Date; provided, thenthat such conditions are reasonably capable of being satisfied), then the Outside End Date shall become November 30be extended, 2011if Parent or the Company notifies the other Party in writing on or prior to the End Date, to July 27, 2017; and (B) provided, however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i10.01(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 be available to a Party if the failure of the Sale Closing to have been consummated occurred by the End Date was due to the failure of such Party to perform any of its obligations under this Agreement or due to the breach by such date; orParty of its representations and warranties set forth in this Agreement;
(ii) if any Governmental Authority of competent jurisdiction shall have issued an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of Mergers or the Sale Parent Share Issuance and such Order shall have become final and non-appealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii10.01(b)(ii) shall have complied with not be available to a Party if such Order was due to the failure of such Party to perform any of its obligations pursuant under this Agreement or due to Section 5.1 with respect to the breach by such OrderParty of its representations and warranties set forth in this Agreement; or
(iii) if the Company Shareholder Approval shall not have been obtained upon a vote taken thereon at the Company Shareholder Meeting (including any postponement or adjournment thereof) duly convened therefor;
(c) by AtlasParent:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL a Company Adverse Recommendation Change shall have occurred; or
(ii) if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2(a9.02(a) or 6.2(b9.02(b) would not be satisfied at Closing; and (B) such untruthis incapable of being cured by the End Date or, inaccuracyif capable of being cured by the End Date, the Company shall not have commenced good-faith efforts to cure the breach or failure to perform within thirty (30) calendar days following (or the breach or failure to perform is not curable cured within sixty (60) calendar days following) receipt by the Outside DateCompany of written notice from Parent of such breach or failure to perform; or
(ii) if provided, that Parent shall not have the Merger Agreement is terminated (provided that, in order right to terminate this Agreement pursuant to this subclause (iiSection 10.01(c)(ii) if Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement, which breach would give rise to the failure of a condition set forth in Section 9.03(a) or 9.03(b), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or;
(d) by APL, the Company:
(i) if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Parent shall have materially breached or failed to perform any of their respective its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.3(a9.03(a) or 6.3(b9.03(b) would not be satisfied at Closing, and (iiB) such untruthis incapable of being cured by the End Date or, inaccuracyif capable of being cured by the End Date, Parent shall not have commenced good-faith efforts to cure the breach or failure to perform within thirty (30) calendar days following (or the breach or failure to perform is not curable cured within sixty (60) calendar days following) receipt by Parent of written notice from the Outside DateCompany of such breach or failure to perform; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 10.01(d)(i) if the Company is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement, which breach would give rise to the failure of a condition set forth in Section 9.02(a) or 9.02(b); or
(ii) prior to the Company Shareholder Approval, if (A) the Company Board authorizes the Company to enter into an Alternative Acquisition Agreement with respect to a Company Superior Proposal in accordance with Section 8.03, (B) substantially concurrently with the termination of this Agreement, the Company enters into an Alternative Acquisition Agreement providing for such Company Superior Proposal and (C) prior to or concurrently with such termination, the Company pays to Parent in immediately available funds the Company Termination Fee required to be paid pursuant to Section 10.03. The Party desiring to terminate this Agreement pursuant to this Section 7.1 10.01 (other than pursuant to Section 10.01(a)) shall give written notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesParty specifying the provision of this Agreement pursuant to which such termination is being effected.
Appears in 2 contracts
Samples: Merger Agreement (St Jude Medical Inc), Merger Agreement (Abbott Laboratories)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlas:
(i) the Company if (A) the Sale Merger shall not have been consummated on or before September 30, 2011 by the four-month anniversary of the date hereof (the “Outside End Date”); provided, however, that, if the Sale that a party shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking be permitted to terminate this Agreement pursuant to this Section 7.1(b)(iSubsection (b) shall not have breached its obligations if the failure to consummate the Merger by the End Date is attributable to a failure on the part of such party to perform any covenant or obligation in any material respect under this Agreement in any manner that required to be performed by such party at or prior to the Effective Time;
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have proximately caused issued a final and non-appealable Order, or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Merger;
(d) by Parent or the Sale and such Order Company if a Parent Triggering Event 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 5.1 with respect to such Order; oroccurred;
(ce) by Atlas:
Parent if: (i) if (A) (x) any of the Company’s representations or and warranties of APL herein contained in this Agreement shall be untrue inaccurate as of the date of this Agreement such that the condition set forth in Section 6.1(a) or the condition set forth in Section 6.1(b) would not be satisfied, or shall have become inaccurate as of a date subsequent to the date of this Agreement (as if made on such subsequent date) such that the condition set forth in Section 6.1(a) or the condition set forth in Section 6.1(b) would not be satisfied; or (ii) any of the Company’s covenants or obligations contained in this Agreement shall have been breached such that the condition set forth in Section 6.2 would not be satisfied; provided, however, that, for purposes of clauses (i) and (ii) above, if an inaccuracy in any of the Company’s representations and warranties (as of the date of this Agreement or as of a date subsequent to the date of this Agreement) or a breach of a covenant or obligation by the Company is curable by the Company by the End Date and the Company is continuing to exercise its reasonable best efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement under this Section (e) on account of such inaccuracy or breach unless such inaccuracy or breach shall thereafter become untrue remain uncured for a period of 30 days commencing on the date that Parent gives the Company notice of such inaccuracy or inaccurate, or breach; or
(yf) APL shall have breached or failed to perform by the Company if: (i) any of its covenants or agreements set forth Parent’s representations and warranties contained in this Agreement, in each case Agreement shall be inaccurate as of the date of this Agreement such that any the condition set forth in Section 6.2(a7.1(a) or 6.2(bthe condition set forth in Section 7.1(b) would not be satisfied at Closing; and satisfied, or shall have become inaccurate as of a date subsequent to the date of this Agreement (Bas if made on such subsequent date) such untruth, inaccuracy, breach that the condition set forth in Section 7.1(a) or failure to perform is the condition set forth in Section 7.1(b) would not curable by the Outside Datebe satisfied; or
or (ii) if any of Parent’s covenants or obligations contained in this Agreement shall have been breached such that the Merger Agreement is terminated (provided condition set forth in Section 7.2 would not be satisfied; provided, however, that, in order to terminate this Agreement pursuant to this subclause for purposes of clauses (i) and (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APLabove, if (i)(A) an inaccuracy in any of the Parent’s representations or and warranties (as of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed as of a date subsequent to perform any the date of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, a breach of a covenant or failure to perform obligation by Parent is not curable by Parent by the Outside Date. The Party desiring End Date and Parent is continuing to exercise its reasonable best efforts to cure such inaccuracy or breach, then the Company may not terminate this Agreement pursuant to under this Section 7.1 paragraph (f) on account of such inaccuracy or breach unless such inaccuracy or breach shall give remain uncured for a period of 30 days commencing on the date that the Company gives Parent notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesinaccuracy or breach.
Appears in 2 contracts
Samples: Merger Agreement (Precision Therapeutics Inc.), Merger Agreement
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Date:
(a) by mutual written consent agreement of APL Pembina and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orKML;
(b) by either APL Pembina or AtlasKML if:
(i) if the Arrangement Resolution shall have failed to receive the requisite vote of the KML Shareholders to approve such resolution at the KML Shareholders’ Meeting (Aincluding any adjournment or postponement thereof) in accordance with the Interim Order;
(ii) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale Effective Time shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, on or prior to the Outside Date shall become November 30Date, 2011; and (B) except that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(b)(ii) shall not have breached its obligations in be available to any material respect under this Agreement in any manner that shall have proximately caused or resulted in the Party whose failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform fulfill any of its covenants or agreements set forth in obligations or whose breach of any of its representations or warranties under this AgreementAgreement has been the cause of, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruthresulted in, inaccuracy, breach or the failure of the Effective Time to perform is not curable occur by the Outside Date; or
(iiiii) if any condition in Section 6.1 (other than the Merger Agreement is terminated (provided thatcondition in Section 6.1(b) [Arrangement Resolution Passed]) becomes incapable of being satisfied by the Outside Date, in order except that the right to terminate this Agreement under this Section 8.1(b)(iii) (A) must be exercised by the Terminating Party no later than the end of the 10th business day from the date of receipt of the Termination Notice by the Receiving Party, following which such Terminating Party shall be deemed to have waived its termination right under this Section 8.1(b)(iii) in respect of the matter specified in such Termination Notice that causes the inability to satisfy the applicable condition, and (B) shall not be available to any Party whose failure to fulfill any of its covenants or obligations or whose breach of any of its representations or warranties under this Agreement has been the cause of, or resulted in, the failure of such condition to be satisfied;
(c) by Pembina if:
(i) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of KML set forth in this Agreement occurs that would cause the condition in Section 6.2(a) [KML Reps and Warranties Condition] or Section 6.2(b) [KML Covenants Condition] not to be satisfied, and such breach or failure is incapable of being cured by the Outside Date or is not cured in accordance with the terms of Section 6.4; provided that (A) any fraudulent, wilful or intentional breach shall be deemed to be incapable of being cured, (B) Pembina is not then in breach of this Agreement so as to cause any condition in Section 6.3(a) [Pembina Reps and Warranties Condition] or Section 6.3(b) [Pembina Covenants Condition] not to be satisfied, and (C) any termination pursuant to this subclause Section 8.1(c)(i) is subject to and satisfies the provisions of Section 6.4; or
(ii)) (A) the KML Board or any committee of the KML Board fails to unanimously recommend or withdraws, Atlas must exercise its right amends, modifies, changes or qualifies, or publicly proposes or states an intention to withdraw, amend, modify, change or qualify, the recommendations or determinations referred to in Section 2.2(a) in a manner adverse to Pembina or shall have resolved to do so within thirty days prior to the Effective Date (and such action is not subsequently withdrawn), (B) the KML Board or any committee of the termination KML Board accepts, approves, endorses or recommends, or publicly proposes to accept, approve, endorse or recommend, an Acquisition Proposal or publicly takes no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for more than five business days (any action set forth in subclauses (A) or (B) of this Section 8.1(c)(ii), a “Change in Recommendation”), (C) the KML Board or any committee of the Merger AgreementKML Board accepts or enters into or publicly proposes to accept or enter into any agreement, understanding or arrangement in respect of an Acquisition Proposal (other than a confidentiality agreement permitted by and in accordance with Section 7.1(b)(vi)); oror (D) the KML Board or any committee of the KML Board fails to publicly reconfirm the recommendations or determinations referred to in Section 2.2(a) upon the reasonable request of Pembina prior to the earlier of five business days following such request or five business days prior to the KML Shareholders’ Meeting.
(d) by APL, if KML if:
(i)(Ai) a breach of any of the representations representation or warranties of Atlas herein shall be untrue warranty or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed failure to perform any covenant or agreement on the part of their respective covenants or agreements Pembina set forth in this Agreement, in each case such Agreement occurs that any would cause the condition set forth in Section 6.3(a) [Pembina Reps and Warranties Condition] or Section 6.3(b) would [Pembina Covenants Condition] not to be satisfied at Closingsatisfied, and such breach or failure is incapable of being cured by the Outside Date or is not cured in accordance with the terms of Section 6.4; provided that (A) any fraudulent, wilful or intentional breach shall be deemed to be incapable of being cured, (B) KML is not then in breach of this Agreement so as to cause any condition in Section 6.2(a) [KML Reps and Warranties Condition] or Section 6.2(b) [KML Covenants Condition] not to be satisfied, and (iiC) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement any termination pursuant to this Section 7.1 shall give notice of such termination 8.1(d)(i) is subject to and satisfies the provisions of this Section 6.4; or
(ii) prior to the approval by the KML Shareholders of the Arrangement Resolution, the KML Board authorizes KML to enter into a written agreement (other than a confidentiality agreement permitted by and in accordance with Section 7.1(b)(vi)) with respect to, or KML accepts, recommends or enters into any agreement to implement, a Superior Proposal in accordance with Section 7.1, provided KML is then in compliance with Section 7.1 being relied on and that prior to terminate this Agreement or concurrent with such termination KML pays the amount required pursuant to the other Partiesand in accordance with Section 8.3(b)(ii).
Appears in 2 contracts
Samples: Arrangement Agreement (Pembina Pipeline Corp), Arrangement Agreement (Kinder Morgan Canada LTD)
Termination. This Agreement (a) The Final Closing Obligations may be terminated terminated, and the Sale may be abandoned transactions contemplated to occur at the Final Closing abandoned, at any time prior to the Final Closing as follows (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNeach a “Termination Date”):
(a) by mutual written consent of APL and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; or
(b) by either APL or Atlas:
(i) if (A) by the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and written consent of a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached its obligations majority in any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure interest of the Sale to have been consummated by such date; orSellers and Purchaser;
(ii) if an by a majority in interest of the Sellers or the Purchaser, if:
(A) after due consideration, the Department will have made a final, non-appealable denial of the FINRA Application, requests that the CMA be withdrawn, fails to approve the CMA, or imposes interim or permanent conditions, limitations, or restrictions applicable to the operation of the Company following the Final Closing that Purchaser determines in good faith would have a Material Adverse Effect on the Company, or
(B) a Governmental Authority of competent jurisdiction will have enacted, enforced or entered any Law, or a final non-appealable Governmental Order shall have been entered will be in effect, that permanently restraining, enjoining or otherwise prohibiting prohibits the consummation of the Sale and such Order shall have become final and non-appealable, provided that transactions contemplated by the Party seeking to terminate Final Closing;
(iii) by a majority in interest of the Sellers if there will be a breach or a violation by Purchaser of any representation or warranty or any covenant or agreement contained in this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any that would result in a failure of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any a condition set forth in Section 6.2(a8.3 that has not been cured (to the extent necessary to avoid a failure of such a condition) or 6.2(bprior to the earlier of (A) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure the Business Day immediately prior to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, Termination Date or (B) Atlas the date that is thirty (30) days from the date that Purchaser is notified in writing by the a majority in interest of Sellers of such breach; provided that the Sellers will not have a right to terminate the Final Closing Obligations pursuant to this Section 9.1(a)(iii) if Sellers or ATN shall the Company have breached or failed to perform violated any of their respective representations, warranties, covenants or agreements set forth contained in this Agreement, Agreement and such breach or violation would have resulted in each case such that any a failure of a condition set forth in Section 6.3(a8.2;
(iv) or 6.3(b) would not by Purchaser, if there will be satisfied at Closing, and (ii) such untruth, inaccuracy, a breach or failure to perform is not curable a violation by the Outside Date. The Party desiring Sellers or the Company of any representation or warranty or any covenant or agreement contained in this Agreement that would result in a failure of a condition set forth in Section 8.2 and which breach has not been cured (to the extent necessary to avoid a failure of such a condition) prior to the earlier of (A) the Business Day immediately prior to the Termination Date or (B) the date that is thirty (30) days from the date that the Sellers and the Company are notified in writing by Purchaser of such breach; provided that Purchaser will not have a right to terminate this Agreement the Final Closing Obligations pursuant to this Section 7.1 shall give 9.1(a)(iv) if Purchaser has breached or violated its representations, warranties, covenants or other agreements contained in this Agreement and such breach or violation would have resulted in a failure of a condition set forth in Section 8.3; or
(v) to reflect and accommodate the Parties purpose and intent to include the transaction contemplated by this Agreement in a de-SPAC transaction as referred to in the premises above, this Agreement may be terminated:
(A) by Purchaser, in its sole and absolute discretion on or before May 31, 2022, unless extended to June 15, 2022, by prior written notice of Purchaser to the Company; and
(B) by a majority in interest of the Sellers if they and the Company have not received from Purchaser, on or before June 15, 2022, complete and executed copies of the definitive operative agreements and related transactional documents providing for the SPAC’s termination of its SPAC status and the release of cash and marketable securities of $101.000.000 held in a trust account as of January 13, 2022, as reported in hxxxx://xxx.xxx.xxx/Xxxxxxxx/exxxx/data/0001865120/000149315222005522/ex99-1.htm, to fund the transactions contemplated by this Agreement, all in accordance with Rule 419 under the Securities Act; and
(vi) by a majority in interest of the Sellers or Purchaser if the Final Closing does not occur by the ten (10) months anniversary of the Initial Closing; provided that such Termination Date may be extended with the agreement of a majority in interest of the Sellers and Purchaser.
(b) The termination of the Final Closing Obligations will be effectuated by the delivery by the Party terminating the Final Closing Obligations to each other of the Company, Sellers, or Purchaser of a written notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiestermination.
Appears in 2 contracts
Samples: Stock Purchase Agreement (AtlasClear Holdings, Inc.), Stock Purchase Agreement (Calculator New Pubco, Inc.)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Acceptance Time:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL the Company or AtlasParent by written notice to the other, if:
(i) if (A) the Sale Acceptance Time shall not have been consummated occurred on or before September 30prior to May 7, 2011 2014 (the “Outside Date”); provided, however, that, if provided that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i9.1(b)(i) shall not have breached its obligations in be available to any material respect party whose failure to fulfill any obligation under this Agreement in any manner that shall have proximately caused has been the primary cause of, or resulted in in, the failure of the Sale Acceptance Time to have been consummated by such date; oroccurred on or prior to the Outside Date;
(ii) if an Order shall have been entered any Judgment issued by a court of competent jurisdiction or by any other Governmental Authority or Law or other legal restraint or prohibition, in each case making the Offer illegal or permanently restraining, enjoining or otherwise prohibiting preventing the making or consummation of the Sale Offer, shall be in effect and such Order shall have become final and non-appealable, nonappealable; provided that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii9.1(b)(ii) shall have complied with not be available to any party if the issuance of such legal restraint or prohibition was primarily caused by or the result of the failure of such party to perform in any material respect any of its obligations pursuant to Section 5.1 with respect to such Orderunder this Agreement; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(iiiii) if the Merger Agreement is terminated Offer shall have expired (provided that, in order to terminate this Agreement and not been extended) without the acceptance for payment of shares of Company Common Stock pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement)Offer; or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein provided that a party shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring permitted to terminate this Agreement pursuant to this Section 7.1 9.1(b)(iii) if a breach by such party of any provision of this Agreement shall give have primarily caused the failure of the acceptance for payment of the shares of Company Common Stock pursuant to the Offer;
(c) by Parent by written notice to the Company, if:
(i) (A) a Company Adverse Recommendation Change shall have occurred, (B) the Company or the Company Board (or any committee thereof) shall have adopted, approved, recommended, submitted to Stockholders, declared advisable, executed or entered into (or resolved, determined or proposed to adopt, approve, recommend, submit to stockholders, declare advisable, execute or enter into) any Alternative Acquisition Agreement, (C) at any time after receipt or public announcement of an Acquisition Proposal, the Company Board shall have failed to reaffirm the Company Recommendation as promptly as practicable after receipt of any written request to do so by Parent (but in any event within five Business Days (or, if the Outside Date is fewer than five Business Days after the Company’s receipt of such request, by the close of business on the Business Day immediately preceding the Outside Date)), (D) a tender offer or exchange offer relating to the Company Common Stock shall have been commenced by a Person unaffiliated with Parent and the Company shall not have sent to the Stockholders pursuant to Rule 14e-2 under the Exchange Act, within five Business Days (or, if the Outside Date is fewer than five Business Days after such offer is first published, sent or given, by the close of business on the Business Day immediately preceding the Outside Date) after such tender offer or exchange offer is first published, sent or given, a statement reaffirming the Company Recommendation and recommending that the Stockholders reject such tender or exchange offer or (E) the Company or the Company Board (or any committee thereof) shall publicly announce its intentions to do any of the foregoing;
(ii) the Company shall have violated or breached in any material respect any of its obligations under Section 7.8; or
(iii) a breach of any representation or warranty 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 Offer Conditions set forth in paragraph (f) or paragraph (g) of Annex I (other than in the case of a breach of the covenants or agreements set forth in Section 7.8), as applicable, not to be satisfied, and such breach or failure is incapable of being cured by the Outside Date or, if curable, is not cured by the Company within 20 Business Days of receipt by the Company of written notice of such breach or failure;
(d) by the Company by written notice to Parent:
(i) in order to accept a Superior Proposal and enter into the Specified Agreement (as defined below) relating to such Superior Proposal, if (A) such Superior Proposal shall not have resulted from any breach of Section 7.8, (B) the Company Board, after satisfying all of the requirements set forth in Section 7.8, shall have authorized the Company to enter into a binding written definitive acquisition agreement providing for the consummation of a transaction constituting a Superior Proposal (a “Specified Agreement”) and (C) the Company shall have paid the Termination Fee concurrently, and have entered into the Specified Agreement concurrently with, the termination and the provisions of this Agreement pursuant to this Section 7.1 9.1(d)(i);
(ii) if a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement shall have occurred, which breach or failure to perform has had, or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and is incapable of being relied on cured by the Outside Date or, if curable, is not cured by Parent within 20 Business Days of receipt by Parent of written notice of such breach or failure; or
(iii) if Merger Sub shall have failed to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer within the period specified in Section 2.1(a); provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 9.1(d)(iii) if the other PartiesCompany’s failure to fulfill any obligation under this Agreement has been the primary cause of, or resulted in, the failure by Merger Sub to comply with its obligations under Section 2.1(a). Any written notice of termination pursuant to this Section 9.1 shall specify the provision of this Section 9.1 pursuant to which such termination is being effected.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Salix Pharmaceuticals LTD)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, notwithstanding approval thereof by APL also being an effective termination by APL Sub the stockholders of the Company and any termination by Atlas also being an effective termination by ATN):Buyer:
(a) by mutual written consent of APL Buyer and Atlas, by action of the APL Board and Atlas’s board of directors, respectivelyCompany; or
(b) by either APL Buyer or Atlas:
(i) the Company if (A) the Sale Merger shall not have been consummated on or before September 30prior to June 21, 2011 2007 (as extended pursuant to the following provisions, the “Outside Final Date”); provided, however, that, that if the Sale Marketing Period has commenced but not ended on or prior to June 21, 2007, the Final Date shall be extended until the earlier of (i) the end of the Marketing Period and (ii) July 20, 2007; provided, further, that if the Marketing Period has commenced but not have occurred by September ended on or prior to July 20, 2007 but could end on or prior to July 30, 20112007, and a New Merger Agreement then the Company shall have been executedthe right, thenexercisable in its discretion, to extend the Outside Final Date until the end of the Marketing Period (it being understood that in no event shall become November the Final Date be extended beyond July 30, 2011; and (B) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached its obligations in 2007 for any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such datereason); or
(iic) by either Buyer or the Company if an Order a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have been entered issued a non-appealable final order, decree or ruling or taken any other action that has become final and non-appealable, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation of Merger, except if the Sale party relying on such order, decree or ruling or other action has not complied with its obligations under Sections 6.4 and such Order shall have become final 6.6; and non-appealable, provided that the Party party seeking to terminate pursuant to this Section 8.1(c) shall have used its reasonable best efforts to challenge such order, decree, ruling or other action; or
(d) by Buyer or the Company if, at the Stockholder Meeting (including any adjournment or postponement thereof), the Requisite Stockholder Vote shall not have been obtained; provided, however, that the right to terminate this Agreement under this Section 8.1(d) shall not be available to the Company where the failure to obtain the Requisite Stockholder Vote shall have been caused by or related to the Company’s material breach of this Agreement; or
(e) by Buyer, if (i) the Board of Directors of the Company (which, for purposes of this Section 8.1(e), shall include any committee thereof) shall have effected a Change in Recommendation; (ii) the Board of Directors of the Company shall have adopted a formal resolution approving or recommended to the stockholders of the Company an Alternative Transaction or publicly announced that an Alternative Transaction constitutes a Superior Proposal, or the Company shall have delivered to Buyer the notice contemplated by Section 5.3(g)(A) of its intention to terminate this Agreement in accordance with Section 8.1(f); (iii) the Company shall fail to include in the Proxy Statement the recommendations in favor of this Agreement and the Merger by its Board of Directors; (iv) a tender offer or exchange offer that would, if consummated, constitute an Alternative Transaction is commenced and the Board of Directors of the Company shall have failed to recommend against acceptance of such tender offer or exchange offer by its stockholders (including, for these purposes, by taking any position contemplated by Rule 14e-2 of the Exchange Act other than recommending rejection of such tender offer or exchange offer) within ten Business Days of the commencement of such tender offer or exchange offer; (v) the Board of Directors of the Company makes a public statement or announcement stating or indicating that it has received a proposal (other than a tender offer or exchange offer described in clause (iv) above) relating to an Alternative Transaction and has formally determined that such proposal constitutes or could reasonably be expected to lead to a Superior Proposal and within ten (10) Business Days of such public statement or announcement (or such longer period of time as the Board of Directors of the Company, in the exercise of its fiduciary duties, determines is necessary in order to make a determination with respect thereto, but in no event later than five (5) Business Days prior to the vote being held at the Company Stockholder Meeting), the Board of Directors of the Company shall have failed to make a further public statement or announcement stating that it both recommends against such proposal relating to an Alternative Transaction (or indicating that such proposal has been withdrawn and negotiations have been terminated with respect thereto) and reconfirms the Company Board Recommendation; (vi) the Company shall have materially and intentionally breached any of the provisions of Section 5.3(a), Section 5.3(c), Section 5.3(d) (provided that such breach has resulted in a material breach of Section 5.3(a) by the Company’s Representatives), the proviso in Section 5.3(e) or Section 5.3(g); or (vii) the Board of Directors of the Company formally resolves to take or publicly announces an intention to take any of the foregoing actions; or
(f) by the Company, prior to the Stockholder Meeting, in accordance with and subject to the terms and conditions of Section 5.3(g); or
(g) by Buyer, upon a material breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement such that the conditions set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied; provided that, unless such breach by its nature cannot be cured, Buyer may not terminate pursuant to this Section 8.1(g) in respect of such breach unless such breach shall not have been cured within thirty (30) days following notice by Buyer of such breach (it being understood that Buyer may not terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i8.1(g) if (A) (x) any of the representations or warranties of APL herein Buyer shall then be untrue or inaccurate on the date in material breach of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(dh) by APLthe Company, if (i)(A) upon a material breach of any of the representations representation, warranty, covenant or warranties of Atlas herein shall be untrue or inaccurate agreement on the date part of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements Buyer set forth in this Agreement, in each case Agreement such that any condition the conditions set forth in Section 6.3(a7.3(a) or 6.3(bSection 7.3(b) would not be satisfied at Closingsatisfied, and provided that, unless such breach by its nature cannot be cured, the Company may not terminate pursuant to this Section 8.1(h) in respect of such breach unless such breach shall not have been cured within thirty (ii30) such untruth, inaccuracy, breach or failure to perform is not curable days following notice by the Outside Date. The Party desiring to Company of such breach; provided further that the Company may not terminate this Agreement pursuant to this Section 7.1 8.1(h): (X) if the Company shall give notice then be in material breach of such this Agreement, or (Y) solely with respect to the Company’s right of termination pursuant to this Section 8.1(h) with respect to Buyer’s, Holdings’ and/or Merger Sub’s breach of Section 4.7 and/or Section 6.13, if (1) the Marketing Period has either not commenced or not ended at the time the Company would otherwise have a right of termination pursuant to this Section 8.1(h) based on Buyer’s, Holdings’ and/or Merger Sub’s breach of Section 4.7 and/or Section 6.13, and (2) Buyer, Holdings and Merger Sub are using their reasonable best efforts to obtain the Financing (or replacements thereof) and the provisions Financing (or replacements thereof) is reasonably likely to be obtained prior to the end of this the Marketing Period; or
(i) by the Company, if the conditions set forth in Section 7.1 being relied and Section 7.2 have been satisfied (other than the actual delivery of the certificates described in Section 7.2 and the obligations of the Company described in Section 6.18 and Section 6.19 that are only required to be satisfied at the Effective Time) and on the last day of the Marketing Period, none of Buyer, Holdings or Merger Sub shall have received the proceeds of the Financing (or replacements thereof) sufficient to consummate the Merger and the other transactions contemplated by this Agreement; provided that the Company may not terminate this Agreement pursuant to this Section 8.1(i) if the Company’s failure to fulfill any of its obligation under this Agreement has been a principal cause of or reasonably resulted in the failure of Buyer, Holdings and/or Merger Sub to have received the proceeds of the Financing (or replacements thereof) sufficient to consummate the Merger and the other Partiestransactions contemplated by this Agreement by the last day of the Marketing Period.
Appears in 2 contracts
Samples: Merger Agreement (Adesa California, LLC), Merger Agreement (Adesa Inc)
Termination. This Agreement may be terminated and shall terminate upon the Sale may be abandoned at any time prior earliest to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):
occur of (a) by mutual written consent of APL and Atlas, by action the termination of the APL Board and Atlas’s board of directorsMerger Agreement in accordance with its terms, respectively; or
(b) by either APL the date of any amendment, modification, change or Atlas:
waiver to any provision of the Merger Agreement that increases the amount or changes the form of the Merger Consideration (iother than adjustments in accordance with the terms of the Merger Agreement) if and (Ac) the Sale Effective Time. In addition, upon a Mavericks Change of Recommendation, the provisions of Article II of this Agreement (including, without limitation, the obligations of the Stockholders contemplated thereby) shall not have been consummated on apply for so long as such Mavericks Change of Recommendation shall remain in effect (and, for the avoidance of doubt, any proxy granted under Section 2.2 of this Agreement or before September 30, 2011 (the “Outside Date”otherwise hereunder shall automatically be deemed revoked); provided, however, that, that if xxx Xxxxxxxxx Board withdraws such Mavericks Change of Recommendation and recommends that the Sale shall not have occurred by September 30, 2011, and a New stockholders of Mavericks adopt the Merger Agreement shall have been executedand approve the Stock Issuance (a “Renewed Recommendation”) the provisions of Article II (including, thenfor the avoidance of doubt, the Outside Date shall become November 30, 2011; and (B) the Party seeking to terminate this Agreement proxy granted pursuant to this Section 7.1(b)(i2.2) shall not have breached its be automatically reinstated, for so long as such Renewed Recommendation remains in effect. In the event of any such termination of this Agreement, the obligations in any material respect of the Parties under this Agreement in shall terminate and there shall be no liability on the part of any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Orderthis Agreement; or
(c) by Atlas:
(i) if (A) provided, however, that (x) this Article V and Article VI shall survive any of the representations or warranties of APL herein such termination and each remain in full force and effect and (y) no Party shall be untrue relieved or inaccurate on the date released from any liability or damages arising from a breach of any provision of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed arising prior to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiestermination.
Appears in 2 contracts
Samples: Merger Support Agreement, Merger Support Agreement (Dynegy Inc.)
Termination. This Agreement may be validly terminated and the Sale may be abandoned at any time prior to the Offer Closing (with any termination Time, notwithstanding adoption of this Agreement by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Parent as sole stockholder of Merger Sub:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company:
(i) if (A) the Sale Offer Closing Time shall not have been consummated occurred on or before September 3011:59 p.m., 2011 Eastern time, on July 6, 2022 (the “Outside Date”); providedprovided that if as of the Outside Date, however, that, if the Sale shall Offer Condition set forth in clause (b) of Exhibit A is not have occurred by September 30, 2011, and a New Merger Agreement satisfied but all of the other Offer Conditions shall have been executed, thensatisfied or waived (other than the Minimum Tender Condition and the Offer Condition in clause (v) of Exhibit A (which only need to be capable of being satisfied)) and the Offer Condition set forth in clause (b) of Exhibit A remains capable of being satisfied, the Outside Date may be extended by Parent or the Company by written notice to the other party delivered on or prior to the Outside Date, on up to two occasions, by a period of 90 days per extension (and in the case of such extension, any reference to the Outside Date in any other provision of this Agreement shall become November 30be a reference to the Outside Date so extended); provided, 2011; and (B) further, that the Party seeking right to terminate or extend this Agreement pursuant to this Section 7.1(b)(i8.01(b)(i) shall not have breached its obligations in be available to any material respect under this Agreement in any manner that shall have proximately caused party whose breach or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants obligations under this Agreement has been the primary cause of the failure of the Offer Closing Time to occur on or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by before the Outside Date; or
(ii) if any Legal Restraint permanently preventing or prohibiting the consummation of the Offer or the Merger Agreement is terminated (shall be in effect and shall have become final and non-appealable; provided that, in order that the right to terminate this Agreement pursuant to this subclause Section 8.01(b)(ii) shall not be available to any party whose breach of this Agreement has been the primary cause of, or resulted in, the events specified in this Section 8.01(b)(ii);
(c) by Parent if the Company breaches or fails to perform any of its representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform individually or in the aggregate with all such other breaches or failures to perform (i) would result in the failure of any of the conditions set forth in clause (ii) or (iv) of Exhibit A and (ii) cannot be or has not been cured prior to the earlier of (x) 30 days after the giving of written notice to the Company by Parent of such breach or failure to perform and (y) the Outside Date (provided that Parent is not then in material breach of any covenant or agreement contained in this Agreement);
(d) by Parent if (i) an Adverse Recommendation Change has occurred, (ii) following the commencement of any tender or exchange offer relating to the securities of the Company, the Company fails to recommend within ten business days of such commencement that the holders of such securities reject such tender or exchange offer and not tender any securities into such tender or exchange (which recommendation shall be set forth in a Schedule 14D-9 filed with the SEC pursuant to Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act within such ten business day period), Atlas must exercise its right (iii) following the public disclosure of a Company Takeover Proposal, the Company fails to publicly reaffirm the Company Board Recommendation within ten business days (or, if earlier, by the close of business on the business day preceding the then-scheduled Expiration Date) after receipt of any written request to do so from Parent (which request may only be made in the event a Company Takeover Proposal has been publicly disclosed, and only once with respect to any such Company Takeover Proposal provided that any change to the financial terms or any other material terms of any such Company Takeover Proposal shall constitute a new Company Takeover Proposal for this purpose) or (iv) the Company or the Company Board (or any committee thereof) Intentionally Breaches Section 5.02;
(e) by the Company, if (i) Merger Sub fails to commence the Offer in violation of Section 1.01 (other than due to a violation by the Company of its obligations under Article I), (ii) Merger Sub shall have terminated the Offer prior to the Expiration Date (as extended and re-extended in accordance with Section 1.01(a)), other than in accordance with this Agreement or (iii) all of the Offer Conditions have been satisfied or waived as of immediately prior to the Expiration Time and the Offer Closing Time shall not have occurred within thirty five business days following the Expiration Time;
(f) by the Company if Parent or Merger Sub breaches or fails to perform any of its representations, warranties, covenants or agreements contained in this Agreement (without regard to any qualifications or exceptions contained therein as to materiality or Parent Material Adverse Effect), which breach or failure to perform (i) had or would reasonably be expected to, individually or in the aggregate, have a Parent Material Adverse Effect and (ii) has not been cured prior to the earlier of (x) 30 days after the giving of written notice to Parent or Merger Sub by the Company of such breach or failure to perform and (y) the Outside Date (provided that the Company is not then in material breach of any covenant or agreement contained in this Agreement);
(g) by the Company, to accept and enter into a definitive written agreement providing for a Superior Company Proposal if (i) the Company Board has complied in all material respects with its obligations under Section 5.02 in respect of such Superior Company Proposal and (ii) the Company has paid, or simultaneously with the termination of this Agreement pays, the Merger AgreementCompany Termination Fee due under Section 6.05(a) that is payable if this Agreement is terminated pursuant to this Section 8.01(g); or
(dh) by APLParent or the Company if, if (i)(A) at the Expiration Time, any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements conditions set forth in Exhibit A shall not have been satisfied and Parent is not required to, and does not, extend the Offer pursuant to Section 1.01(a) (provided that the party seeking such termination is not then in material breach of any covenant or agreement contained in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date). The Party party desiring to terminate this Agreement pursuant to this Section 7.1 8.01 (other than pursuant to Section 8.01(a)) shall give written notice of such termination to each other party hereto and specify the applicable provision or provisions of this Section 7.1 hereof pursuant to which such termination is being relied on to terminate this Agreement to the other Partieseffected.
Appears in 2 contracts
Samples: Merger Agreement (Stryker Corp), Merger Agreement (Vocera Communications, Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, whether before or after approval of the Merger by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the Company's stockholders:
(a) by mutual written consent of APL the Company and Atlas, by action Parent (on behalf of the APL Board Parent and Atlas’s board of directors, respectivelyMerger Sub); or43
(b) by either APL the Company or Atlas:Parent (on behalf of Parent and Merger Sub):
(i) if (A) the Sale Merger shall not have been consummated on or before September 30completed by August 31, 2011 (2000; PROVIDED, HOWEVER, that the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached be available to any party whose failure to perform any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted results in the failure of the Sale Merger to have been be consummated by such date; ortime;
(ii) if an Order stockholder approval shall not have been entered permanently restrainingobtained at the Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof; PROVIDED, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealableHOWEVER, provided that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant not be available to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed party whose failure to perform any of its covenants or agreements set forth obligations under this Agreement results in this Agreement, in each case such that the failure to obtain stockholder approval.
(iii) if any condition restraint having any of the effects set forth in Section 6.2(a6.1(b) or 6.2(bSection 6.2(d) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein hereof shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN in effect and shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreementbecome final and nonappealable; PROVIDED, in each case such HOWEVER, that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring right to terminate this Agreement pursuant to this Section 7.1 7.1(b)(iii) shall give notice not be available to any party whose failure to perform any of its obligations under this Agreement results in such termination and restraint to continue in effect; or
(iv) if the provisions of this Section 7.1 being relied on Company enters into a merger, acquisition or other agreement (including an agreement in principle) or understanding to effect a Superior Proposal or the Company Board or a committee thereof resolves to do so; PROVIDED, HOWEVER, that the Company may not terminate this Agreement pursuant to this Section 7.1(b)(iv) unless (a) the Company has delivered to Parent and Merger Sub a written notice of the Company's intent to enter into such an agreement to effect such Acquisition Proposal, which notice shall include, without limitation, the material terms and conditions of the Acquisition Proposal and the identity of the Person making the Acquisition Proposal, (b) three business days have elapsed following delivery to Parent and Merger Sub of such written notice by the Company and (c) during such three-business-day period, the Company has fully cooperated with Parent and Merger Sub to allow Parent and Merger Sub within such three-business-day period to propose amendments to the terms of this Agreement to be at least as favorable as the Superior Proposal; PROVIDED, FURTHER, that the Company may not terminate this Agreement pursuant to this Section 7.1(b)(iv) unless, at the end of such three-business-day-period, the Company Board continues reasonably to believe that the Acquisition Proposal constitutes a Superior Proposal;
(c) by the Company, if Parent or Merger Sub shall have breached any of its representations and warranties contained in Article IV hereof which breach has or is reasonably likely to have a Parent Material Adverse Effect or Parent or Merger Sub shall have breached or failed to perform in any material respect any of its covenants or other Partiesagreements contained in this Agreement, in each case, which breach or failure to perform has not been cured by Parent or Merger Sub within thirty days following receipt of notice thereof from the Company; or
(d) by Parent (on behalf of Parent and Merger Sub):
(i) if the Company shall have breached any of its representations and warranties contained in Article III hereof which breach has or is reasonably likely to have a Company Material Adverse Effect or the Company shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement, in each case (other than a breach of Section 5.6(b) hereof, as to which no cure period shall apply), which breach or failure to perform has not been cured by the Company within thirty days following receipt of notice thereof from Parent;
(ii) if (a) the Company Board or any committee thereof shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Merger or this Agreement, or approved or recommended an Acquisition Proposal (including a Superior Proposal), or (b) the Company Board or any committee thereof shall have resolved to take any of the foregoing actions; or
(iii) at any time after 6:00 a.m. Minneapolis time on February 23, 2000, if the Company Option Agreement shall not have been executed and delivered by the Company to Parent prior to such termination.
Appears in 2 contracts
Samples: Merger Agreement (Adc Telecommunications Inc), Merger Agreement (Adc Telecommunications Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing Effective Time, whether prior to or after approval by the stockholders of the Company, upon written notice (with any other than in the case of Section 8.1(a) below) from the terminating party to the non-terminating party specifying the subsection of this Section 8.1 pursuant to which such termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):is effected, as follows:
(a) by mutual written consent of APL the Parent, the Merger Sub and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL the Parent or Atlasthe Company:
(i) if (A) the Sale shall Merger is not have been consummated on or before September 30December 31, 2011 2012 (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(b)(i) shall not have breached its be available to any party whose failure to fulfill any obligations in any material respect under this Agreement in any manner that shall have proximately caused has been a principal cause of or resulted in the failure of the Sale Merger to have been consummated by such date; oroccur on or before the Outside Date;
(ii) if an Order shall have been entered any Governmental Entity issues a nonappealable final order, decree or ruling or taken any other nonappealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the consummation Merger; or
(iii) if at the Company Meeting (including any adjournment or postponement thereof in accordance with Section 6.5) at which a vote on the Company Voting Proposal is taken, the Required Company Stockholder Vote in favor of the Sale and such Order Company Voting Proposal shall not have become final and non-appealablebeen obtained; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(b)(iii) shall have complied with not be available to the Parent or the Company if such party’s breach of or such party’s failure to fulfill its obligations pursuant to Section 5.1 with respect to such Order; orunder this Agreement has been the primary cause of, or the primary factor that resulted in, the Required Company Stockholder Vote in favor of the Company Voting Proposal not having been obtained.
(c) by Atlasthe Parent:
(i) if: (A) the Company Board shall have failed to recommend approval of the Company Voting Proposal in the Proxy Statement or shall have withheld, withdrawn, qualified or modified its recommendation of the Company Voting Proposal in a manner adverse to the Parent; (B) the Company Board fails to reaffirm its recommendation that the Company Voting Proposal in the Proxy Statement be approved within ten business days of a request by the Parent to provide such reaffirmation following the date that any person (other than the Parent or its Affiliates) shall have made an Acquisition Proposal (other than a tender offer or exchange offer described in clause (D) below)(provided that the Parent shall be permitted to request only one such reaffirmation request per Acquisition Proposal, with any material amendment or modification to the terms of any Acquisition Proposal being deemed a new Acquisition Proposal hereunder); (C) the Company Board shall have approved, endorsed or recommended to the stockholders of the Company an Acquisition Proposal (other than the Merger or other Acquisition Proposal made by the Parent or an Affiliate of the Parent); (D) a tender offer or exchange offer for outstanding shares of Company Common Stock shall have been commenced (other than by the Parent or an Affiliate of the Parent) and the Company Board recommends that the stockholders of the Company tender their shares in such tender or exchange offer or, within 10 business days after the commencement of such tender or exchange offer, the Company Board fails to recommend against acceptance of such offer; or (E) the Company Board or any committee thereof shall have authorized or publicly resolved to do any of the foregoing (each, a “Company Adverse Recommendation Change”);
(ii) if the Company breaches or fails to perform in any material respect any of its representations, warranties or covenants contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 7.1 or 7.2 and (B) cannot be or has not been cured within 20 days after the giving of written notice to the Company of such breach or failure to perform or, if capable of being cured by the Company by such date, the Company does not commence to cure such breach or failure within 10 days after its receipt of written notice thereof from Parent and diligently pursue such cure thereafter (provided in any case that Parent is not then in material breach of any representation, warranty or covenant contained in this Agreement); or
(iii) if the Company breaches in any material respect the covenants contained in Section 6.1 or the first sentence of Section 6.5 of this Agreement.
(d) by the Company:
(i) if (A) (x) the Parent or the Merger Sub breaches or fails to perform in any material respect any of the representations their respective representations, warranties or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth contained in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, which breach or failure to perform materially impairs the Parent’s and the Merger Sub’s ability to consummate the Merger and which breach or failure to perform cannot be or has not been cured within 20 days after the giving of written notice to the Parent of such breach or failure to perform or, if capable of being cured by the Parent or the Merger Sub by such date, the Parent or the Merge Sub, as applicable, does not commence to cure such breach or failure within 10 days after the Parent’s receipt of written notice thereof from the Company and diligently pursue such cure thereafter (provided in each case that the Company is not curable by the Outside Datethen in material breach of any representation, warranty or covenant contained in this Agreement); or
(ii) if if, prior to the Merger Agreement is terminated receipt of the Company Stockholder Approval, (provided thatA) the Company Board, in order to terminate this Agreement pursuant to this subclause (iiand in compliance with Section 6.1(b), Atlas must exercise its right shall have effected a Company Adverse Recommendation Change as a result of an outstanding Superior Proposal, (B) immediately prior to do so within thirty days of or substantially concurrently with the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or the Company enters into an Acquisition Agreement with respect to such Superior Proposal and (BC) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreementthe Parent receives, in each case such that any condition set forth immediately available funds, the fees required to be paid pursuant to Section 8.3 at the applicable time specified in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties8.3.
Appears in 2 contracts
Samples: Merger Agreement (Network Equipment Technologies Inc), Merger Agreement (Sonus Networks Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Closing:
(a) by mutual written consent agreement of APL Buyer Ultimate Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orSeller Parent;
(b) by either APL Buyer Ultimate Parent or Atlas:
(iSeller Parent, by giving written notice of such termination to the other Party, if the Closing shall not have occurred on or prior to May 31, 2010 for the reason that the conditions set out in Sections 7.1, 7.2 and 7.3 have not been satisfied or waived; provided, that if the conditions set forth in any of Section 7.1(a), Section 7.1(b), Section 7.1(c), Section 7.1(d), Section 7.2(e) if (Aand Section 7.3(e) the Sale shall not have been consummated satisfied or waived on or before September the Business Day prior to such date, either Party may by written notice extend the Termination Date until June 30, 2011 2010 (the “Outside Termination Date”); provided, however, that, if provided that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(b) shall not have breached its obligations in be available to any material respect under this Agreement in any manner that shall have proximately caused or resulted in Party if the failure of the Sale Closing to have been consummated occur by the close of business on the Termination Date is attributable to a failure on the part of such Party to perform any covenant in this Agreement required to be performed by such date; orParty at or prior to the Closing or is attributable to any Willful Breach;
(iic) by either Buyer Ultimate Parent or Seller Parent, by giving written notice of such termination to the other Party, if an Order any Law of any jurisdiction set forth under Annex 8.1(c) shall have been entered permanently enacted or enforced in a manner restraining, enjoining or otherwise prohibiting the consummation of the Sale Closing and such Order Law shall have become permanent, final and non-appealable, ; provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(c) shall have complied with used its obligations pursuant commercially reasonable efforts to Section 5.1 with respect to remove, eliminate or otherwise have vacated the prohibition imposed by such Order; orLaw;
(cd) by Atlas:
Seller Parent, if the Buyer Parties shall have (i) if (A) (x) failed to perform, or comply with, any of the representations obligation, agreement or warranties of APL herein shall be untrue or inaccurate on the date of covenant set forth in this Agreement or shall thereafter become untrue (ii) breached any representation or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements warranty set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, which breach or failure to perform or comply prevents any of the conditions set forth in Section 7.1 (Conditions to the Obligations of the Parties with respect to the Closing) or Section 7.3(a) or Section 7.3(b) (Conditions to the Obligations of Seller Parties with respect to the Closing) from being satisfied, and such breach or failure to comply is either not curable or, if curable, is not curable cured by the Outside earlier of (x) the date which is 30 calendar days following the date of delivery by Seller Parent of written notice of such breach or failure to comply to Buyer Ultimate Parent or (y) the Termination Date; or;
(e) by Buyer Ultimate Parent, if the Seller Parties shall have (i) failed to perform, or comply with, any obligation, agreement or covenant set forth in this Agreement or (ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) breached any of the representations representation or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements warranty set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, which breach or failure to perform or comply prevents any of the conditions set forth in Section 7.1 (Conditions to the Obligations of the Parties with respect to the Closing) or Section 7.2(a) or Section 7.2(b) (Conditions to the Obligations of Buyer Parties with respect to the Closing), from being satisfied, and such breach or failure to comply is either not curable or, if curable, is not curable cured by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give earlier of (x) the date which is 30 calendar days following the date of delivery by Buyer Ultimate Parent of written notice of such termination breach or failure to comply to Seller Parent or (y) the Termination Date;
(f) by Seller Parent, if a Buyer Material Adverse Effect has occurred and is either not curable or, if curable, is not cured by the provisions earlier of this Section 7.1 being relied on (x) the date which is 30 calendar days following the date of delivery by Seller Parent of written notice thereof to terminate Buyer Ultimate Parent or (y) the Termination Date;
(g) by Buyer Ultimate Parent, if a Material Adverse Effect has occurred and is either not curable or, if curable, is not cured by the earlier of (x) the date which is 30 calendar days following the date of delivery by Buyer Ultimate Parent of written notice thereof to Seller Parent or (y) the Termination Date;
(h) by Seller Parent or Buyer Ultimate Parent, if the approval of the transactions contemplated by this Agreement by the shareholders of Seller Parent shall not have been obtained by reason of the failure to obtain Seller Parent Requisite Vote at Seller Parent Shareholders Meeting; or
(i) by Seller Parent or Buyer Ultimate Parent, if the other Partiesapproval of the Share Issuance by the shareholders of Buyer Ultimate Parent shall not have been obtained by reason of the failure to obtain the Buyer Ultimate Parent Requisite Vote at the Buyer Ultimate Parent Special Meeting.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Tang Hsiang Chien), Stock Purchase Agreement (TTM Technologies Inc)
Termination. This Agreement may be terminated and the Sale transactions contemplated hereby may be abandoned at any time prior to the Closing Effective Time, whether before or after receipt of the Requisite Stockholder Vote (with any termination by APL Parent also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNMerger Sub):
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company, by written notice to the other, if:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30May 5, 2011 2022 (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(b)(i) shall not have breached be available to any party whose breach of any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted in Section 6.5 has been a principal cause of the failure of the Sale Merger to have been be consummated by such date; orthe Outside Date;
(ii) if after the date of this Agreement, any Governmental Entity of competent jurisdiction issues an Order shall have been entered or takes any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale Merger and such Order or other action shall have become final and non-appealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(b)(ii) shall have complied with not be available to any party whose breach of any of its obligations pursuant to under Section 5.1 with respect to 6.5 has been a principal cause of such OrderOrder or action; or
(iii) the Requisite Stockholder Vote shall not have been obtained upon a vote taken thereon at the Company Stockholders Meeting or at any adjournment or postponement thereof.
(c) by AtlasParent, by written notice to the Company:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth contained in this Agreement, which breach or failure to perform (A) is reasonably incapable of being cured by the Company by the Outside Date or (B) if reasonably capable of being cured by the Company by the Outside Date, has not been cured by the Company within forty-five (45) days following written notice to the Company from Parent of such breach, and, in each case such that case, would result in a failure of any condition set forth in Section 6.2(a7.2(a) or 6.2(b) would Section 7.2(b); provided that Parent shall not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by have the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order right to terminate this Agreement pursuant to this subclause Section 8.1(c)(i) if it is then in material breach of any representation, warranty, covenant or agreement hereunder; or
(ii)) prior to obtaining the Requisite Stockholder Vote, Atlas must exercise its right if the Company Board or any committee thereof shall have (1) effected a Recommendation Withdrawal, (2) failed to do so recommend against any then-pending tender or exchange offer that constitutes a Takeover Proposal within thirty days the earlier of two (2) Business Days prior to the termination Company Stockholders Meeting and ten (10) Business Days after it is announced or (3) failed, within ten (10) Business Days after a written request by Parent following the public announcement of a Takeover Proposal, to reaffirm the Merger Agreement); orCompany Board Recommendation, which request may be made only once with respect to any such Takeover Proposal except that Parent may make an additional request after any material change in the terms of such Takeover Proposal;
(d) by APLthe Company, by written notice to Parent:
(i) if (i)(A) any of the representations Parent or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Merger Sub shall have breached or failed to perform any of their respective its representations, warranties, covenants or agreements set forth contained in this Agreement, which breach or failure to perform (A) is reasonably incapable of being cured by Parent or Merger Sub, as the case may be, by the Outside Date or (B) if reasonably capable of being cured by Parent or Merger Sub by the Outside Date, has not been cured by Parent or Merger Sub, as the case may be, within forty-five (45) days following written notice to Parent or Merger Sub, as the case may be, from the Company of such breach, and, in each case such that case, would result in a failure of any condition set forth in Section 6.3(a7.3(a) or 6.3(b) would Section 7.3(b); provided that the Company shall not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by have the Outside Date. The Party desiring right to terminate this Agreement pursuant to this Section 7.1 shall give notice 8.1(d)(i) if it is then in material breach of such termination any representation, warranty, covenant or agreement hereunder; or
(ii) prior to obtaining the Requisite Stockholder Vote, in connection with a Superior Proposal pursuant to, and the provisions of this Section 7.1 being relied on to terminate this Agreement subject to the other Partiesterms and conditions of, Section 6.3(d) and (e).
Appears in 2 contracts
Samples: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Termination. This 8.1 Subject to clauses 8.2 and 8.3 below, this Agreement may be terminated shall terminate with immediate effect and all rights and obligations of the Sale may be abandoned at any time prior to parties under this Agreement shall cease forthwith in the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):following circumstances:
(a) by mutual written consent of APL if the Announcement is not released on or before 8.00 a.m. on 31 March 2022 (unless prior to that time the parties have agreed another time and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; ordate in accordance with clause 2.1);
(b) if agreed in writing between the parties;
(c) forthwith upon service of written notice by either APL or Atlasthe Bidder to the Company, which may be served if:
(i) the Scheme Document is not published within 28 days of the date of the Announcement;
(ii) the Company announces that the Directors no longer intend to give, or intend to withdraw, adversely qualify or adversely modify, the Recommendation;
(iii) the Recommendation is not made in the Scheme Document (or, following an Agreed Switch, the Offer Document) or is subsequently withdrawn or adversely modified or qualified;
(iv) the Scheme is not approved by the Scheme Shareholders at any of the Meetings or the Court refuses to sanction the Scheme or to issue the Scheme Court Order;
(v) the Meetings or the Scheme Court Hearing are not held by the relevant dates set out in the Scheme Approval Condition (or such later dates as may be agreed in writing between the parties with the consent of the Takeover Panel and the approval of the Court, in each case if required);
(vi) any Condition (which has not been waived) is incapable of satisfaction or waiver in circumstances where invoking such Condition is permitted or is likely to be permitted by the Takeover Panel to cause the Acquisition to lapse;
(vii) an Independent Competing Transaction:
(A) is recommended by the Sale shall not have been consummated on Directors; or
(B) becomes effective, or before September 30becomes or is declared unconditional in all respects, 2011 or otherwise completes;
(d) the “Outside Date”); provided, however, thatScheme or, if the Sale shall not have occurred Bidder implements the Acquisition by September 30, 2011, and way of a New Merger Agreement shall have been executed, thenTakeover Offer, the Outside Date shall become November 30Takeover Offer, 2011; and lapses, terminates or is withdrawn (B) with 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 consent of the Sale to have been consummated by Takeover Panel, if required) other than where such datelapse, termination or withdrawal:
(i) is a lapse, termination or withdrawal of the Scheme as a result of a Switch; or
(ii) if is otherwise to be followed within ten Business Days by an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation announcement under Rule 2.7 of the Sale Takeover Code made by the Bidder or a person acting in concert with the Bidder to implement the Acquisition by a different offer or scheme on substantially the same or improved terms and such Order shall have become final and non-appealable, provided that which is (or is intended to be) recommended by the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; orDirectors;
(ce) the Effective Date does not occur by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Long Stop Date; or
(iif) upon satisfaction of the obligation to pay the consideration to the Shareholders pursuant to the terms of the Scheme or, if the Merger Agreement is terminated (Bidder implements the Acquisition by way of a Takeover Offer, the Takeover Offer, provided that, in order to terminate this Agreement pursuant to this subclause (iithat neither clause 8.1(c)(i), Atlas must exercise its right to do so within thirty days (iv) nor (v) shall apply where a Switch has occurred in accordance with clause 5 of the termination of the Merger this Agreement); or.
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date 8.2 Termination of this Agreement shall be without prejudice to the rights of either party which have arisen on or shall thereafter become untrue or inaccurate, or prior to termination including (Bwithout limitation) Atlas or ATN shall have breached or failed to perform any claim in respect of their respective covenants or agreements set forth in a breach of this Agreement.
8.3 Clause 1, in each case such that any condition set forth in Section 6.3(athis clause 8, clauses 11 to 22 (inclusive) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 Schedule 1 shall give notice of such survive termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesAgreement.
Appears in 2 contracts
Samples: Co Operation Agreement, Co Operation Agreement
Termination. This Agreement may be terminated and the Sale Merger contemplated hereby may be abandoned at any time prior to the Closing (with any termination Effective Time, notwithstanding approval thereof by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the shareholders of FMST:
(a) by mutual written consent duly authorized by the boards of APL directors of AP, Distribution and AtlasFMST (including, by action of if required, the APL Board and Atlas’s board of directors, respectively; orIndependent Committee);
(b) by either APL FMST, Distribution or Atlas:
(i) AP if (A) the Sale Effective Time shall not have been consummated occurred on or before September June 30, 2011 (the “Outside Date”)1998; provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i6.1(b) shall not have breached its obligations in be available to any material respect party whose failure to fulfill any obligation under this Agreement in any manner that shall have proximately caused has been the cause of, or resulted in in, the failure of the Sale Effective Time to have been consummated by occur on or before such date; or;
(iic) by FMST, Distribution or AP if an Order any court of competent jurisdiction in the United States or other United States governmental body shall have been entered permanently issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the consummation of the Sale Merger and such Order 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 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); ornonappealable;
(d) by APL, FMST if (i)(Ai) there shall have been a breach of any representation or warranty on the part of the AP or Distribution under this Agreement having a Company Material Adverse Effect, which shall not have been cured prior to 10 days following notice of such breach (provided, however, that if any of the representations and warranties is already qualified in any respect by materiality or warranties of Atlas herein shall be untrue or inaccurate on as to the date Company Material Adverse Effect for purposes of this Agreement Section 6.1(d) such materiality or shall thereafter become untrue or inaccuratethe Company Material Adverse Effect qualification will be in all respects ignored (but subject to the overall standard as to materiality set forth immediately prior to this proviso)), or (Bii) Atlas or ATN there shall have breached been a material breach of any covenant or failed agreement in this Agreement on the part of the AP or Distribution, which materially adversely affects the consummation of the Merger which shall not have been cured prior to perform 10 days following notice of such breach;
(e) by AP or Distribution if (i) there shall have been a breach of any representation or warranty in this Agreement on the part of FMST which materially adversely affects the consummation of the Merger, which shall not have been cured prior to 10 days following notice of such breach (provided, however, that if any of their respective covenants the representations and warranties is already qualified in any respect by materiality or agreements as to a material adverse effect for purposes of this Section 6.1(e) such materiality or material adverse effect qualification will be in all respects ignored (but subject to the overall standard as to materiality set forth in immediately prior to this Agreementproviso)), in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, there shall have been a material breach of any covenant or failure to perform is not curable by the Outside Date. The Party desiring to terminate agreement in this Agreement pursuant on the part of FMST which materially adversely affects the consummation of the Merger which shall not have been cured prior to this Section 7.1 shall give 10 days following notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesbreach.
Appears in 2 contracts
Samples: Merger Agreement (Ldi LTD), Merger Agreement (Finishmaster Inc)
Termination. This Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time only:
(a) by mutual written consent of APL LLIT (acting through the LLIT Special Committee) and Atlas, by action of Newegg (acting through the APL Board and Atlas’s board of directors, respectively; orNewegg Special Committee);
(b) by either APL LLIT (acting through the LLIT Special Committee) or Atlas:Newegg (acting through the Newegg Special Committee):
(i) if (A) the Sale Merger shall not have been consummated on or before September April 30, 2011 2021 (as extended as set forth below, the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i) shall not have breached its obligations be available to any Party whose material breach of a representation, warranty or covenant in any material respect under this Agreement in any manner that shall have proximately caused or resulted in has been a principal cause of the failure of the Sale Merger to be consummated on or before the Outside Date; provided further that the Outside Date shall be automatically extended up to two additional times by one month each time if, on the then current Outside Date (A) all conditions to Closing contained in Article VI (except for Section 6.3(e)) have been consummated satisfied or waived, or are imminently capable of being satisfied, (B) Section 6.3(e) is reasonably likely to be satisfied by such date; orthe Outside Date, as extended, and (C) the Parties have exercised and continue to exercise their best efforts to satisfy Section 6.3(e);
(ii) if any Governmental Authority of competent jurisdiction shall have issued an Order shall have been entered or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and Merger, and, in each case, such Order or action shall have become final and non-appealable; provided, provided however, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(ii) shall not be available to any Party whose material breach of a representation, warranty or covenant in this Agreement has been the principal cause of such action;
(iii) if the Required Shareholder Vote shall not have complied with its obligations pursuant to Section 5.1 with respect to such Orderbeen obtained at the Shareholder Meeting;
(iv) if any required approval by the Newegg shareholders shall not have been obtained within 5 days after the date hereof; or
(c) by Atlas:Newegg (acting through the Newegg Special Committee) (provided it is not then in material breach of any of its obligations under this Agreement):
(i) if (A) (x) there is any breach of the representations any representation, warranty, covenant or warranties of APL herein shall be untrue or inaccurate agreement on the date part of this Agreement LLIT or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements Merger Sub set forth in this Agreement, or if any representation or warranty of LLIT or Merger Sub shall have become untrue, in each either case such that any condition the applicable conditions set forth in Section 6.2(a) or 6.2(b) 6 would not be satisfied at Closingsatisfied; provided, however, if such breach is curable by LLIT or Merger Sub, then Newegg may not terminate this Agreement under this Section 7.1(c)(i) for so long as LLIT or Merger Sub continue to exercise their best efforts to cure such breach, unless such breach is not cured within thirty (30) days after notice of such breach is provided by Newegg to LLIT;
(ii) if for any reason LLIT fails to call and hold the Shareholder Meeting within sixty (60) days following the filing of the F-4, unless such failure is as a result of LLIT responding in good faith to comments on the Form F-4 or the Form F-1 received from the SEC or comments received from NASDAQ;
(iii) if the LLIT Board (or any subgroup or committee thereof) (A) withdraws, modifies or changes its recommendation of this Agreement or the Merger in a manner adverse to Newegg or shall have resolved to do any of the foregoing, or (B) such untruthapproves or recommends, inaccuracyor proposes to approve or recommend, breach or failure to perform an Acquisition Proposal; or
(iv) if the Escrow Amount is not placed into the Escrow Account within five days hereof; or
(d) by LLIT (acting through the LLIT Special Committee) (provided neither it nor its Subsidiaries are then in material breach of any of their obligations under this Agreement):
(i) if there is any breach of any representation, warranty, covenant or agreement on the part of Newegg set forth in this Agreement, or if any representation or warranty of Newegg shall have become untrue, in either case such that the applicable conditions set forth in Section 6 would not be satisfied; provided, however, if such breach is curable by the Outside DateNewegg, then LLIT may not terminate this Agreement under this Section 7.1(d)(i) for so long as Newegg continues to exercise its best efforts to cure such breach, unless such breach is not cured within thirty (30) days after notice of such breach is provided by LLIT to Newegg; or
(ii) if the Merger Agreement is terminated Newegg Board (provided thator any subgroup or committee thereof) (A) withdraws, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise modifies or changes its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date recommendation of this Agreement or the Merger in a manner adverse to LLIT or shall thereafter become untrue or inaccuratehave resolved to do any of the foregoing, or (B) Atlas approves or ATN shall have breached recommends, or failed proposes to perform any approve or recommend, an Acquisition Proposal;
(e) by Newegg (acting through the Newegg Special Committee), if (i) Newegg receives a bona fide written offer prior to the approval of their respective covenants or agreements the LLIT shareholders of the Merger at the Shareholder Meeting, and the Newegg Special Committee determines in good faith (based upon a written opinion of an independent financial advisor) that such offer constitutes a superior offer to the stockholders of Newegg (a “Newegg Superior Offer”) to the terms set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closingherein, and (ii) the Newegg Special Committee determines in good faith (based upon advice of counsel) that, in light of such untruthNewegg Superior Offer, inaccuracythe withdrawal or modification of the Newegg Board’s approval is required in order for the Newegg Board to comply with its fiduciary obligations to Newegg’s stockholders under the DGCL or other applicable law; or
(f) by LLIT (acting through the LLIT Special Committee), breach if (i) LLIT receives a bona fide written offer prior to the approval of the LLIT shareholders of the Merger at the Shareholder Meeting, and the LLIT Special Committee determines in good faith (based upon a written opinion of an independent financial advisor) that such offer constitutes a superior offer for the stockholders of LLIT (a “LLIT Superior Offer”) to the terms set forth herein, and (ii) the LLIT Special Committee determines in good faith (based upon advice of counsel) that, in light of such LLIT Superior Offer, the withdrawal or failure modification of the LLIT Board’s approval is required in order for the LLIT Board to perform is not curable by comply with its fiduciary obligations to LLIT’s shareholders under the Outside DateBVI Act or other applicable law. The right of any Party desiring hereto to terminate this Agreement pursuant to this Section 7.1 shall give notice remain operative and in full force and effect regardless of any investigation made by or on behalf of any Party hereto, any Person controlling any such termination and Party or any of their respective officers or directors, whether prior to or after the provisions execution of this Section 7.1 being relied on to terminate this Agreement to the other PartiesAgreement.
Appears in 2 contracts
Samples: Merger Agreement (Lianluo Smart LTD), Merger Agreement (Lianluo Smart LTD)
Termination. This Agreement may be terminated and the Sale may be transactions contemplated hereby abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time:
(a) by the mutual written consent of APL JPE and Atlas, AMID duly authorized by action each of the APL JPE GP Board and Atlas’s board of directorsthe AMID GP Board, respectively; or.
(b) by either APL of JPE or AtlasAMID:
(i) if (A) the Sale Closing shall not have been consummated on or before September April 30, 2011 2017 (the “Outside Date”); provided, that the right to terminate this Agreement under this Section 7.1(b)(i) shall not be available (x) to a party if the inability to satisfy such condition was due to the failure of such party to perform any of its obligations under this Agreement or (y) to a party if the other party has filed (and is then pursuing) an action seeking specific performance as permitted by Section 8.8;
(ii) if any Restraint having the effect set forth in Section 6.1(c) shall be in effect and shall have become final and nonappealable; provided, however, that, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be available to a party if such Restraint was due to the failure of such party to perform any of its obligations under this Agreement;
(iii) if the Sale JPE Unitholders Meeting shall have concluded and the JPE Unitholder Approval shall not have occurred been obtained; or
(c) by September 30, 2011, and AMID:
(i) if a New Merger Agreement JPE Adverse Recommendation Change shall have been executedoccurred;
(ii) prior to the receipt of the JPE Unitholder Approval, thenif JPE shall be in Willful Breach of its obligations pursuant to the first three sentences of Section 5.1(b) or Section 5.3, other than in the Outside Date shall become November 30case where (x) such Willful Breach is a result of an isolated action by a Person that is a Representative of JPE (other than a director or officer of JPE), 2011; (y) such Willful Breach was not caused by, or within the Knowledge of, JPE and (Bz) JPE takes appropriate actions to remedy such Willful Breach upon discovery thereof; provided that AMID shall not have the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(c)(ii) shall not have breached if AMID is then in material breach of any of its obligations representations, warranties, covenants or agreements contained in any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale to have been consummated by such date; orAgreement;
(iiiii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL JPE shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this AgreementAgreement (or if any of the representations or warranties of JPE set forth in this Agreement shall fail to be true), in each case such that any which breach or failure (A) would (if it occurred or was continuing as of the Closing Date) give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b(b) would not be satisfied at Closing; and (B) is incapable of being cured, or is not cured by JPE within 30 days following receipt of written notice from AMID of such untruth, inaccuracy, breach or failure to perform is failure; provided that AMID shall not curable by have the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice 7.1(c)(iii) if AMID is then in material breach of such termination and the provisions any of its representations, warranties, covenants or agreements contained in this Section 7.1 being relied on to terminate this Agreement to the other Parties.Agreement; or
Appears in 2 contracts
Samples: Merger Agreement (American Midstream Partners, LP), Merger Agreement (JP Energy Partners LP)
Termination. This In addition to the provisions regarding termination set forth elsewhere herein, this Agreement and the transactions contemplated hereby may be terminated and the Sale may be abandoned at any time prior to on or before the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Date:
(a) by mutual written consent of APL and Atlas, by action the Boards of Directors of the APL Board Company and Atlas’s board of directors, respectively; orBRC;
(b) by either APL the Company if any representation or Atlas:
(i) warranty of BRC or by BRC if (A) any representation or warranty of the Sale Company contained herein shall have been incorrect or breached in any material respect, as to which notice shall have been given to such party, and shall not have been consummated cured or otherwise resolved to the reasonable satisfaction of the other party on or before September 30the Closing Date, 2011 (or by either the “Outside Date”); provided, however, that, Company or BRC if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking any condition 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 Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and transactions contemplated hereunder that must be fulfilled by the other to its satisfaction has (in the good faith judgment of a majority of the Board of Directors) become impractical to be fulfilled;
(c) by the Company if the average of the last reported sale price of the BRC Common Stock as reported on the National Market System of the National Association of Securities Dealers for any three consecutive trading days shall be less than $31.50 or by BRC if such Order average shall exceed $38.50;
(d) by either BRC or the Company if any permanent injunction or other order of a court or other competent authority preventing the consummation of the transactions shall have become final and non-appealable, provided that nonappealable;
(e) by either the Party seeking to terminate Company or BRC if the transactions contemplated by this Agreement have not been consummated by September 1, 1995, unless such failure of consummation is due to the failure of the terminating party to perform or observe the covenants, agreements and conditions hereof to be performed or observed by it at or before the Closing Date;
(f) by either MC or the Company if its stockholders or the other Constituent Corporation's stockholders fail to approve the Merger at the stockholders' meeting called for the purpose of considering and voting on the Merger; and
(g) by BRC if, prior to the mailing of the Information Statement, there shall have occurred a material adverse change in the financial condition, results of operations or prospects of the Company or, if, after the mailing of the Information Statement, there shall have occurred a material change in the financial condition, results of operations or prospects of the Company or BRC that is not disclosed in the Information Statement or supplement thereto. If this Agreement is rightfully terminated pursuant to this Section 7.1(b)(ii9.1, no party hereto (or any of its directors or officers) shall have complied with its obligations pursuant any liability or further obligation to Section 5.1 with respect any other party to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition except to the extent set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties5.5 hereof.
Appears in 2 contracts
Samples: Merger Agreement (Business Records Corporation Holding Co), Merger Agreement (Business Records Corporation Holding Co)
Termination. This Agreement may be terminated and the Sale 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 Closing Effective Time, whether before or after receipt of Company Shareholder Approval (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNexcept as indicated):
(a) by By mutual written consent agreement of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectivelyCompany; or
(b) by By either APL Parent or Atlas:
(i) Company, if (A) the Sale Merger shall not have been consummated on or before September 30prior to April 7, 2011 2016 (the “Outside Date”); provided, however, that, if the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, that (i) the Outside Date shall become November 30, 2011; 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 (Bii) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i7.1(b) shall not have be available to any party that has breached its obligations in any material respect its obligations under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Sale Merger to have been be consummated by such dateon 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 date of this Agreement remaining in effect prohibiting the consummation of the Merger, (ii) if an Order shall have been entered enacted, entered, promulgated or issued by a Governmental Entity of competent jurisdiction permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale Merger and such Order shall have become final and non-appealable; provided, provided however, that the Party party seeking to terminate this Agreement pursuant to this Section 7.1(b)(iiclause (ii) shall have complied with used its obligations reasonable best efforts to remove such Order, or (iii) a Governmental Entity shall have failed to issue an Order or to take any other 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 5.1 with respect 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 Ordercondition shall not elect to waive such condition; or
(cd) 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 Atlas: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) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL 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, (ii) such breach or failure to perform would entitle Company not to consummate the Merger under Section 6.3(a) or Section 6.3(b) and (iii) such breach or failure to perform is incapable of being cured by Parent prior to the Outside Date or, if such breach or failure 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) days after receipt of written notice thereof (but no later than the Outside Date); provided, 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 of its covenants or agreements set forth in this Agreement; or
(f) By Parent, if all of the following shall have occurred: (i) Company shall have breached or failed to perform in each case any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, (ii) such that any condition set forth in breach or failure to perform would entitle Parent not to consummate the Merger under Section 6.2(a) or Section 6.2(b) would not be satisfied at Closing; and (Biii) such untruth, inaccuracy, breach or failure to perform is not curable 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 no later than the Outside Date); or
(ii) if provided, that Parent shall not have the Merger Agreement is terminated (provided that, in order right to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days Section 7.1(f) if Parent or Merger Sub is then in material breach of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective its covenants or agreements set forth in this Agreement; or
(g) By Parent, if any of the following have occurred: (i) the Company Board effected a Change in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at ClosingRecommendation, and (ii) such untruthCompany shall have violated in a material respect any of the provisions of Section 5.5 or (iii) Company enters into any Company Acquisition Agreement with respect to any Acquisition Proposal or Superior Proposal; or
(h) By Company, inaccuracy, breach or failure in connection with entering into a Company Acquisition Agreement with respect to perform is not curable by the Outside Date. The Party desiring to terminate a Superior Proposal in compliance with Section 5.5(c); provided that no termination of this Agreement pursuant to this Section 7.1 7.1(h) shall give notice of such termination be effective unless Company shall have paid the Company Termination Fee and the provisions of this otherwise complied with its obligations under Section 7.1 being relied on to terminate this Agreement to the other Parties7.3.
Appears in 2 contracts
Samples: Merger Agreement (Journal Media Group, Inc.), Merger Agreement (Gannett Co., Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, whether before or after approval of the Merger by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the stockholders of the Company:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlas:
(i) the Company if (A) the Sale Merger shall not have been consummated by 5:00 p.m. (Pacific Time) on May 7, 1997 (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 before September 30prior to the Effective Time);
(c) by either Parent or the Company if a court of competent jurisdiction or other Governmental Body shall have issued a final and nonappealable order, 2011 decree or ruling, or shall have taken any other action, having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger;
(d) by either Parent or the “Outside Date”); provided, however, that, Company if (i) the Sale Company Stockholders' Meeting shall have been held and (ii) this Agreement and the Merger shall not have occurred been adopted and approved at such meeting by September 30the Required Vote; PROVIDED, 2011HOWEVER, and a New Merger Agreement that (1) Parent shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(d) shall not have breached its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted in if the failure of the Sale Company's stockholders to adopt and approve this Agreement and the Merger at the Company Stockholders' Meeting is attributable to a failure on the part of Parent to perform any material obligation required to have been consummated performed by such date; or
Parent under this Agreement, (ii2) if an Order the Company shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale and such Order shall have become final and non-appealable, provided that the Party seeking not be permitted to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i8.1(d) if (A) (x) any the failure of the representations or warranties of APL herein shall be untrue or inaccurate Company's stockholders to adopt and approve this Agreement and the Merger at the Company Stockholders' Meeting is attributable to a failure on the date part of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed the Company to perform any of its covenants or agreements set forth in material obligation required to have been performed by the Company under this Agreement, in each case such that any condition set forth in Section 6.2(aand (3) or 6.2(b) would the Company shall not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring permitted to terminate this Agreement pursuant to this Section 7.1 8.1(d) unless the Company shall give notice have paid the fee referred to in clause "(i)" of Section 8.3(b);
(e) by Parent (at any time prior to the adoption and approval of this Agreement and the Merger by the Required Vote) if a Triggering Event shall have occurred;
(f) by Parent if any of the Company's representations and warranties contained in this Agreement shall be or shall have become materially inaccurate, or if any of the Company's material covenants contained in this Agreement shall have been breached in any material respect; PROVIDED, HOWEVER, that if an inaccuracy in the Company's representations and warranties or a breach of a covenant by the Company is curable by the Company and the Company is continuing to exercise reasonable efforts to cure such inaccuracy or breach, then Parent may not terminate this Agreement under this Section 8.1(f) on account of such termination inaccuracy or breach;
(g) by the Company if any of Parent's representations and warranties contained in this Agreement shall be or shall have become materially inaccurate, or if any of Parent's material covenants contained in this Agreement shall have been breached in any material respect; PROVIDED, HOWEVER, that if an inaccuracy in Parent's representations and warranties or a breach of a covenant by Parent is curable by Parent and Parent is continuing to exercise reasonable efforts to cure such inaccuracy or breach, then the provisions of Company may not terminate this Agreement under this Section 7.1 being relied 8.1(g) on account of such inaccuracy or breach;
(h) by either Parent or the Company at 5:00 p.m. (Pacific Time) on the scheduled Closing Date (as designated by Parent in accordance with Section 1.3) if (i) Parent shall have failed to issue shares of Parent Common Stock on or prior to the scheduled Closing Date for the purpose of satisfying the Paragraph 47d Condition, (ii) Xxxxxx Xxxxxxxx LLP is unable to provide, on the scheduled Closing Date, the letter referred to in Section 6.6(h) solely as a result of Parent's failure to issue shares of Parent Common Stock in order to satisfy the Paragraph 47d Condition, and (iii) all of the conditions set forth in Section 6 have otherwise been fully satisfied (except for any conditions in Section 6 that have not been satisfied as a result of Parent's failure to perform any material obligation required to have been performed by Parent under this Agreement); PROVIDED, HOWEVER, that (1) Parent shall not be permitted to terminate this Agreement pursuant to this Section 8.1(h) if Parent's failure to issue shares of Parent Common Stock for the other Parties.purpose of satisfying the Paragraph 47d Condition is attributable to a failure on the part of Parent to perform any material obligation required to have been performed by Parent under this Agreement, and (2) the Company shall not be permitted to terminate this Agreement pursuant to this Section 8.1(h) if Parent's failure to issue shares of Parent Common Stock for the purpose of satisfying the Paragraph 47d Condition is attributable to a failure on the part of the Company to perform any material obligation required to have been performed by the Company under this Agreement; or
(i) by Parent at any time on or after November 2, 1996 if Xxxx X. Xxxxxx and Xxxxx Xxxxx shall not have executed and delivered to Parent Option Agreements in the form of Exhibit F.
Appears in 2 contracts
Samples: Merger Agreement (Cooper & Chyan Technology Inc), Merger Agreement (Cadence Design Systems Inc)
Termination. This Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Sale Merger may be abandoned at any time prior to the Closing Effective Time (with notwithstanding any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNShareholder Approval):
(a) by mutual written consent of APL Parent, Merger Sub and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL Parent or Atlasthe Company if:
(i) if (A) the Sale shall Merger has not have been consummated on or before September 30four (4) months after the date of this Agreement (as it may be extended as provided below, 2011 (the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party whose breach of any provision of this Agreement results in the failure of the Merger to be consummated by such time; provided further, however, that, if if, on the Sale Outside Date, any of the conditions to the Closing set forth in Section 7.1(b) shall not have occurred been fulfilled but all other conditions to the Closing either have been fulfilled or are then capable of being fulfilled, then the Outside Date shall, without any action on the part of the parties hereto, be automatically extended by September thirty (30) days; provided further, 2011however, that, if, on the Outside Date (as extended), any of the conditions to the Closing set forth in Section 7.1(b) shall not have been fulfilled but all other conditions to the Closing either have been fulfilled or are then capable of being fulfilled, then the Outside Date shall, without any action on the part of the parties hereto, be automatically extended by another 30-day period;
(ii) a permanent injunction or other Order which is final and a New Merger Agreement nonappealable shall have been executedissued or taken restraining or otherwise prohibiting consummation of the Merger or any of the other Transactions; provided, thenhowever, that the Outside Date shall become November 30, 2011; and (B) the Party party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i8.1(b)(ii) shall not have breached its obligations in any material respect under this Agreement in any manner that shall have proximately caused used all reasonable best efforts to prevent the entry of such permanent injunction or resulted in other Order to the failure of the Sale extent required by and subject to have been consummated by such dateSection 6.3; or
(iiiii) if an Order the Special Meeting (including any adjournments and postponements thereof) shall have concluded without the Shareholder Approval having been entered permanently restraining, enjoining or otherwise prohibiting the consummation obtained by reason of the Sale and such Order shall have become final and non-appealablefailure to obtain the required vote of the holders of Shares, provided provided, however, that the Party seeking Company’s right to terminate this Agreement pursuant to this Section 7.1(b)(ii8.1(b)(iii) shall have complied is subject to the Company’s compliance with its obligations pursuant to Section 5.1 with respect to such Order; or6.2(a);
(c) by Atlas:the Company prior to the receipt of the Shareholder Approval, if the Company Board or any committee thereof authorizes the Company to enter into a definitive agreement with respect to a Superior Proposal and the Company concurrently enters into such definitive agreement with respect to such Superior Proposal; provided that the Company shall have complied with all provisions of Section 5.2;
(id) if (A) (x) any by Parent prior to the receipt of the representations Shareholder Approval, if the Company Board or warranties of APL herein any committee thereof shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccuratehave made an Adverse Recommendation Change, or (y) APL the Company Board or any committee thereof shall have breached resolved to make any Adverse Recommendation Change;
(e) by Parent, if the Company breaches or failed fails to perform or comply with any of its representations, warranties, agreements or covenants or agreements set forth contained in this Agreement, in each case such that any which breach or failure to perform or comply (i) would give rise to the failure of a condition set forth in Section 6.2(a7.2(a) or 6.2(bSection 7.2(b) would and (ii) has not been cured (or cannot be satisfied at Closing; cured) by the earlier of (A) thirty (30) days after the giving of the written notice to the Company of such breach and (B) such untruth, inaccuracy, breach or failure to perform the Outside Date (provided that Parent is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided thatthen in material breach of any representation, warranty, agreement or covenant contained in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(df) by APLthe Company, if (i)(A) Parent or Merger Sub breaches or fails to perform or comply with any of the representations its representations, warranties, agreements or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth contained in this Agreement, in each case such that any which breach or failure to perform or comply (i) would give rise to the failure of a condition set forth in Section 6.3(a7.3(a) or 6.3(bSection 7.3(b) would not be satisfied at Closing, and (ii) has not been cured (or cannot be cured) by the earlier of (A) thirty (30) days after the giving of the written notice to Parent of such untruth, inaccuracy, breach or failure to perform and (B) the Outside Date (provided that the Company is not curable by the Outside Datethen in material breach of any representation, warranty, agreement or covenant contained in this Agreement). The Party desiring to terminate this Agreement pursuant to this Section 7.1 A terminating party shall give provide written notice of termination to the other parties specifying with particularity the reason for such termination and the provisions termination. If more than one provision of this Section 7.1 being relied 8.1 is available to a terminating party in connection with a termination, a terminating party may rely on to terminate any and all available provisions in this Agreement to the other PartiesSection 8.1 for any such termination.
Appears in 2 contracts
Samples: Merger Agreement (ICC Holdings, Inc.), Merger Agreement (ICC Holdings, Inc.)
Termination. This Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated (but the right to terminate this Agreement shall not be available to a party whose breach of its obligations under this Agreement is a proximate cause of the basis for termination under this Section 6.1 that the terminating party is relying upon) and the Sale Transactions may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Date, whether before or after the Stockholder Approval:
(a) by the mutual written consent of APL the Purchaser and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orSeller;
(b) by either APL the Purchaser or Atlasthe Seller:
(i) if (A) the Sale Closing shall not have been consummated occurred on or before September 30, 2011 prior to 15 July 2016 (the “Outside Termination Date”); provided, however, that, provided that if the Sale SEC shall not have occurred cleared the Proxy Statement by September 3010 June 2106, 2011, and a New Merger Agreement shall have been executed, then, then the Outside Seller may extend the Termination Date shall become November 30, 2011; and (B) 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 Sale to have been consummated by such date31 July 2016; or
(ii) if any Governmental Authority having jurisdiction over the Purchaser, the Seller or an Unwired Planet Company shall have issued an Order shall have been entered permanently restrainingor taken any other Legal Action, enjoining or otherwise prohibiting in each case, such that the consummation of the Sale condition in Section 5.1(b) would not be satisfied, and such Order or other Legal Action shall have become final and non-appealable, provided that ; or
(iii) if the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) Stockholder Meeting shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; orconcluded without the Stockholder Approval having been obtained.
(c) by Atlasthe Seller:
(i) if (A) (x) upon a breach of any covenant or agreement on the part of the representations Purchaser, or warranties if any representation or warranty of APL herein the Purchaser shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreementuntrue, in each any case such that any condition set forth the conditions in Section 6.2(a5.3(a) or 6.2(b5.3(b) would not be satisfied at Closing(assuming that the date of such determination is the Closing Date); and (B) provided, that if such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Purchaser through the exercise of commercially reasonable efforts and the Purchaser continues to exercise such commercially reasonable efforts, the Seller may not terminate this Agreement under this Section 6.1(c)(i) unless the Purchaser has not cured such breach within 15 days;
(ii) after termination of the renegotiation period in Section 4.11(e)(ii), immediately prior to the Purchaser executing and delivering a definitive agreement embodying a Superior Proposal; or
(d) by the Purchaser:
(i) upon a breach of any covenant or agreement on the part of the Seller, or if any representation or warranty of the Seller shall be untrue, in any case such that the conditions in Section 5.2(a) or 5.2(b) would not be satisfied (assuming that the date of such determination is the Closing Date); provided, that if such breach is curable by the Seller through the exercise of commercially reasonable efforts and the Seller continues to exercise such commercially reasonable efforts, the Purchaser may not terminate this Agreement under this Section 6.1(d)(i) unless the Seller has not cured such breach within 15 days; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days board of directors of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN Seller shall have breached publicly disclosed a Change of Recommendation or failed to perform any of their respective covenants approved or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Partiesrecommended a Superior Proposal.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Unwired Planet, Inc.)
Termination. This Agreement may be terminated and the Sale transactions contemplated hereby, including the Merger, may be abandoned at any time prior to the Closing Effective Time (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNnotwithstanding the obtaining of Company Stockholder Approval):
(a) by the mutual written consent of APL Company and AtlasParent, duly authorized by action each of the APL Company Board and Atlas’s board of directors, respectively; orthe Parent Board;
(b) by either APL of Company or AtlasParent:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30prior to October 13, 2011 2024 (as such date may be extended pursuant to the first proviso of this Section 7.01(b)(i), the “Outside Date”); provided, however, that, that if on such date the Sale condition precedent to the consummation of the Merger set forth in Section 6.01(b) shall not have occurred by September 30, 2011, and a New been satisfied but all other conditions precedent to the consummation of the Merger Agreement shall have been executedsatisfied (or, thenin the case of conditions that by their terms are to be satisfied at the Closing, are capable of being satisfied on that date), then the Outside Date shall become automatically be extended to November 3012, 20112024; and (B) provided, further, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i7.01(b)(i) shall not have breached be available to any Party if the breach by such Party of its representations and warranties set forth in this Agreement or the failure of such Party to perform any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused Agreement, has been a principal cause of or resulted in the failure of the Sale Merger to have been be consummated by such date; oron or prior to the Outside Date (it being understood that Parent and Merger Sub shall be deemed a single Party for purposes of the foregoing proviso);
(ii) if an any Order having the effect set forth in Section 6.01(c) shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale be in effect and such Order shall have become final and non-appealable, nonappealable; provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii7.01(b)(ii) shall have complied performed in all material respects its obligations under this Agreement and used reasonable best efforts to prevent the entry of and to remove such Order in accordance with its obligations pursuant to Section 5.1 with respect to such Orderunder this Agreement; or
(iii) if Company Stockholder Approval shall not have been obtained following a vote thereon having been taken at the Company Stockholders’ Meeting;
(c) by AtlasParent:
(i) if (A) (x) the Company shall have breached any of the its representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants obligations or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2(a6.02(a) or 6.2(bSection 6.02(b) would not be satisfied at Closing; and (B) is not reasonably capable of being cured prior to the Outside Date, or if reasonably capable of being cured, shall not have commenced to have been cured within thirty (30) days following receipt by the Company of written notice of such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order from Parent stating Parent’s intention to terminate this Agreement pursuant to this subclause Section 7.01(c)(i) and the basis for such termination (or in any event has not been cured by the Outside Date); provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.01(c)(i) if Parent or Merger Sub is then in material breach of any of its representations, warranties, obligations or agreements hereunder; or
(ii), Atlas must exercise its right ) prior to do so within thirty days receipt of the termination of Company Stockholder Approval, if the Merger Agreement); orCompany Board shall have effected a Company Adverse Recommendation Change;
(d) by APL, the Company:
(i) if (i)(A) Parent or Merger Sub shall have breached any of the its representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants its obligations or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.3(a6.03(a) or 6.3(bSection 6.03(b) would not be satisfied at Closing, and (iiB) is not reasonably capable of being cured prior to the Outside Date, or if reasonably capable of being cured, shall not have commenced to have been cured within thirty (30) days following receipt by Parent or Merger Sub of written notice of such untruth, inaccuracy, breach or failure to perform is not curable by from the Outside Date. The Party desiring Company stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1 shall give notice of 7.01(d)(i) and the basis for such termination and (or in any event has not been cured by the provisions of this Section 7.1 being relied on Outside Date); provided that Company shall not have the right to terminate this Agreement pursuant to this Section 7.01(d)(i) if the other PartiesCompany is then in material breach of any of its representations, warranties, obligations or agreements hereunder; or
(ii) prior to receipt of the Company Stockholder Approval, in connection with entering into a Company Acquisition Agreement providing for a Superior Proposal; provided that, prior to or concurrently with such termination, the Company pays the amounts due under Section 7.03 in accordance with the terms thereof.
Appears in 2 contracts
Samples: Merger Agreement (McEwen Mining Inc.), Merger Agreement (Timberline Resources Corp)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Effective Time, whether before or after receipt of the Company Stockholder Approval, by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):delivery of written notice to the other parties hereto under the following circumstances:
(a) by mutual written consent of APL Parent and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL of Parent or Atlasthe Company:
(i) if (A) the Sale Merger shall not have been consummated on or before September 30, 2011 the 7 month anniversary of date of Agreement (the “Outside Date”); provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i7.01(b)(i) shall not have breached be available to any party if the failure of such party (and in the case of Parent, Sub) to perform any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused has been a principal cause of or resulted in the failure of the Sale Merger to have been be consummated by on or before such date; or;
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation any Restraint having any of the Sale and such Order effects set forth in Section 6.01(c) shall have become final and non-appealablenonappealable; provided, provided however, that the Party seeking to a party may not terminate this Agreement pursuant to this Section 7.1(b)(ii7.01(b)(ii) shall have if such party (and in the case of Parent, Sub) has not complied in all material respects with its obligations pursuant to under Section 5.1 with respect to such Order5.03; or
(iii) if the Company Stockholder Approval shall not have been obtained at the Company Stockholders’ Meeting, as adjourned or postponed from time to time;
(c) by Atlas:
(i) Parent, if (A) (x) the Company shall have breached any of the its representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a6.02(a) or 6.2(b6.02(b) would not be satisfied at Closing; and (Bii) such untruth, inaccuracy, breach or failure is incapable of being cured prior to perform is not curable by the Outside Date; or
(ii) if provided, however, that Parent shall not have the Merger Agreement is terminated (provided that, in order right to terminate this Agreement pursuant to this subclause (ii)Section 7.01(c) if either Parent or Sub is then in material breach of any of its representations, Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); orwarranties, covenants or agreements hereunder;
(d) by APLthe Company, if (i)(A) Parent or Sub shall have breached any of the its representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective its covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.3(a6.03(a) or 6.3(b6.03(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure is incapable of being cured prior to perform is not curable by the Outside Date. The Party desiring ; provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1 7.01(d) if the Company is then in material breach of any of its representations, warranties, covenants or agreements hereunder;
(e) by Parent, in the event that (i) the Board of Directors of the Company shall give notice have failed to include the Company Board Recommendation in the Proxy Statement or take any action specified in clause (ii) of Section 4.02(d), (ii) an Adverse Recommendation Change shall have occurred or (iii) the Board of Directors of the Company fails to publicly reaffirm the Company Board Recommendation within five business days of a request by Parent to make such public reaffirmation following the Company receiving a public Takeover Proposal (other than in the case of a Takeover Proposal in the form of a tender or exchange offer) that has not been withdrawn (provided that Parent may make any such request only once in any 15-day period, which 15-day period is exclusive of the five business day period by the end of which the Company is required to reaffirm the Company Board Recommendation pursuant to this clause (iii)); and
(f) by the Company, at any time prior to (but not after) obtaining the Company Stockholder Approval if (i) the Board of Directors of the Company authorizes the Company, subject to complying with the terms of Section 4.02, to enter into an Acquisition Agreement with respect to a Superior Proposal, (ii) concurrently with the termination and the provisions of this Agreement the Company, subject to complying with the terms of Section 7.1 being relied on 4.02, enters into an Acquisition Agreement with respect to terminate this Agreement such Superior Proposal and (iii) prior to or concurrently with such termination, the other PartiesCompany pays to Parent the Company Termination Fee pursuant to Section 5.06(b).
Appears in 2 contracts
Samples: Merger Agreement (Covance Inc), Merger Agreement (Laboratory Corp of America Holdings)
Termination. This Agreement may be terminated and the Sale transactions contemplated hereby may be abandoned abandoned, at any time prior to the Closing (with any termination Company Merger Effective Time, whether before or after approval of the Company Merger and the Bank Merger by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):the Company Shareholders:
(a) by By mutual written consent of APL Acquiror and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by By written notice of either APL Acquiror or Atlas:
(i) the Company, if (A) the Sale Company Merger Effective Time shall not have been consummated occurred on or before September 30January 1, 2011 2007 (the “Outside Termination Date”); provided, however, that, if that the Sale right to terminate this Agreement under this Section 10.1(b) shall not have occurred by September 30, 2011, and a New Merger be available to any party whose failure to fulfill any of its obligations under this Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) 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 a principal reason for or resulted in a principal cause of the failure of the Sale Company Merger Effective Time to have been consummated by occur on or before such date; or;
(iic) By written notice of either Acquiror or the Company, if an Order any Governmental Entity shall have been entered issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale transactions contemplated by this Agreement, and such Order order, decree, ruling or other action shall have become final and non-appealable;
(d) By written notice of either Acquiror or the Company, provided if the Company Shareholders fail to approve the adoption of this Agreement and the Company Merger and Bank Merger by the Required Company Vote (and Acquiror does not otherwise have a right of termination under Section 10.2(f));
(e) By written notice of the Company, if:
(i) an Acquisition Proposal that is a Superior Proposal is received and a majority of the members of the entire Company Board reasonably determines in good faith (after receiving advice of outside nationally recognized legal counsel to the Company and independent financial advisors), that it is necessary to terminate this Agreement and enter into an agreement to effect the Superior Proposal in order to comply with the fiduciary duties of the Company Board under applicable Law; provided, however, that the Party seeking to Company may not terminate this Agreement pursuant to this Section 7.1(b)(ii10.1(e)(i) shall unless and until (w) five (5) Business Days have complied elapsed following delivery to Acquiror of a written notice of such determination by the Company Board and during such five (5) Business Day period the Company has fully cooperated with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any Acquiror, including informing Acquiror of the representations or warranties terms and conditions of APL herein shall such Superior Proposal and the identity of the Person making such Superior Proposal, and has engaged in good faith negotiations (including by making its officers, directors and its financial and legal advisors reasonably available to negotiate) to amend this Agreement to reflect any revised proposal by Acquiror so that the PALOALTO 66463 v1 (2K) -65- transactions contemplated hereby may be untrue or inaccurate on effected and the date Company Board may continue to recommend the adoption of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days approval of the termination of the Company Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties.Bank Merger (“Revised Acquiror Proposal”),
Appears in 2 contracts
Samples: Merger Agreement (BWC Financial Corp), Merger Agreement (BWC Financial Corp)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination respect to Sections 8.1(b) through 8.1(e), by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATNnotice from the terminating Party to the other Party setting forth a brief description of the basis for termination):
(a) by the mutual written consent of APL Acquiror and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orTarget;
(b) by either APL Acquiror or Atlas:
(i) Target if (A) the Sale shall Merger will not have been consummated on or before September by January 31, 2011; provided, however, that such date may be extended unilaterally by either Party to April 30, 2011 if all conditions to closing have been satisfied other than the condition set forth in Section 7.1(b) or 7.1(c) and other than those conditions that by their nature are to be satisfied at the Closing (the later of January 31, 2011 or April 30, 2011, if applicable, being referred to as the “Outside Termination Date”); provided, howeverfurther, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(b) shall will not have breached its obligations be available to any Party whose failure to comply with or perform in any material respect any obligation under this Agreement in any manner that shall have proximately caused has been the cause of or resulted in the failure of the Sale Merger to have been consummated by occur on or before such date; or;
(iic) by either Acquiror or Target if an Order shall a court of competent jurisdiction or other Governmental Entity will have been entered permanently restrainingissued a nonappealable final order, enjoining decree, injunction or otherwise other action having the effect of preventing or prohibiting the consummation Merger;
(d) without limiting the right of the Sale and such Order shall have become final and non-appealable, provided that the Party seeking either Acquiror or Target to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) 8.1(b), by Atlas:
Target if (i) if (A) (x) there is an inaccuracy in any of the representations or warranties of APL herein shall be untrue Acquiror or inaccurate on the date of Merger Sub in this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case such that any the condition set forth in Section 6.2(a) or 6.2(b7.3(a) would not be satisfied at Closing; and (Bsatisfied, or there has been a breach by Acquiror or Merger Sub of any of their respective covenants in this Agreement such that the condition set forth in Section 7.3(b) such untruthwould not be satisfied, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if Target will have delivered to Acquiror a written notice of such inaccuracy or breach, and (iii) at least thirty (30) days will have elapsed since the Merger Agreement is terminated delivery of such notice without such inaccuracy or breach having been cured;
(provided that, in order e) without limiting the right of either Acquiror or Target to terminate this Agreement pursuant to this subclause (iiSection 8.1(b), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, Acquiror if (i)(Ai) there is an inaccuracy in any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of Target in this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any the condition set forth in Section 6.3(a) or 6.3(b7.2(a) would not be satisfied at Closingsatisfied, or there has been a breach by Target of any of its covenants in this Agreement such that the condition set forth in Section 7.2(b) would not be satisfied, (ii) Acquiror will have delivered to Target a written notice of such inaccuracy or breach, and (iiiii) such untruth, inaccuracy, breach or failure to perform is not curable by at least thirty (30) days will have elapsed since the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice delivery of such termination notice without such inaccuracy or breach having been cured; or
(f) by either Acquiror or Target in the event that a Governmental Entity has unappealably and finally denied or refused to furnish a Required Regulatory Approval or issued an order seeking to enjoin the provisions Merger or the change of this control of one or more of the Regulated Subsidiaries or requiring one or more of the Regulated Subsidiaries to cease and desist doing business such that, in any case, the condition set forth in Section 7.1 7.1(c) shall become incapable of being relied on to terminate this Agreement to the other Partiessatisfied.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (HealthSpring, Inc.), Merger Agreement (HealthSpring, Inc.)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether before or after receipt of the Company Stockholder Approvals and/or the Parent Stockholder Approval:
(a) by mutual written consent of APL NHC/OP Sub and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orCompany;
(b) by either APL NHC/OP Sub or Atlas:
the Company, upon written notice to the other party: (i) if (A) the Sale Merger shall not have been consummated on or before September by June 30, 2011 (the “Outside Date”)2007; provided, however, that, if that the Sale shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) the Party seeking right to terminate this Agreement pursuant to this Section 7.1(b)(i7.01(b)(i) shall not have breached its obligations in be available to any material respect under this Agreement in any manner that shall have proximately caused party whose action or failure to act has been a principal cause of or resulted in the failure of the Sale Merger to have been be consummated by on or before such datetime and such action or failure to act constitutes a breach of this Agreement; or
(ii) if an Order the Company Stockholder Approvals shall not have been entered permanently restraining, enjoining or otherwise prohibiting the consummation obtained by reason of the Sale failure to obtain the required vote at a Company Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof; (iii) if the Parent Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at a Parent Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof; or (iv) if any Restraint having any of the effects set forth in Section 6.01(c) shall be in effect 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 5.1 with respect to such Order; ornonappealable;
(c) by Atlas:
NHC/OP Sub, upon written notice to the Company (i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.02(a) or Section 6.02(b) and (B) is incapable of being cured by the Company by June 30, 2007 or (ii) if any Restraint referred to in Section 6.02(c) shall be in effect and shall have become final and nonappealable;
(d) by the Company, upon written notice to NHC/OP Sub, (i) if NHC/OP Sub, NHC/OP or Parent shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement, in each case such that any which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2(a6.03(a) or 6.2(bSection 6.03(b) would not be satisfied at Closing; and (B) is incapable of being cured by NHC/OP Sub, NHC/OP or Parent by June 30, 2007, or (ii) if, prior to June 30, 2007, the Special Committee of the Board of Directors of the Company shall have provided written notice to NHC/OP Sub that the Company is prepared, upon termination of this Agreement, to enter into a binding written definitive agreement for a Superior Proposal; provided, however, that, in the case of this clause (ii): (A) the Company shall have complied with Section 4.02 in all material respects, (B) the Special Committee shall have reasonably concluded in good faith (prior to giving effect to any offer which may be made to the Company by NHC/OP Sub pursuant to clause (C) below) in consultation with its financial advisors and outside counsel, that such untruthproposal is a Superior Proposal and (C) NHC/OP Sub does not make, inaccuracywithin five business days after receipt of the Company’s written notice referred to above in this clause (ii) an offer that the Special Committee of the Board of Directors of the Company shall have reasonably concluded in good faith in consultation with its financial advisors and outside counsel is at least as favorable to the stockholders of the Company as the Superior Proposal;
(e) by NHC/OP Sub, breach or failure upon written notice to perform is not curable the Company, if (i) the Special Committee shall have failed to recommend that this Agreement and the transactions contemplated hereby be approved and adopted by the Outside DateCompany’s stockholders or effected a Change in Company Recommendation (or resolved to take any such action), whether or not permitted by the terms hereof, or (ii) the Company failed to call or hold the Company Stockholders Meeting in accordance with Section 5.02(a) or to prepare and mail to its stockholders the Proxy Statement in accordance with Section 5.01, or (iii) the Company otherwise failed to comply with or perform its obligations under Section 4.02; or
(iif) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days except as a result of the termination actions of the Merger Agreement); or
(d) by APL, if (i)(A) any party which are a breach of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) by either NHC/OP Sub or 6.3(b) would the Company if the Consolidation shall not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable have been approved by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other PartiesRequisite Stockholder Vote.
Appears in 2 contracts
Samples: Merger Agreement (National Health Realty Inc), Merger Agreement (National Healthcare Corp)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Date:
(a) by mutual written consent of APL PCS and Atlas, by action of the APL Board and Atlas’s board of directors, respectively; orAgrium;
(b) by either APL PCS or Atlas:Agrium if the PCS Arrangement Resolution shall have failed to receive the requisite vote of the PCS Shareholders at the PCS Meeting (including any adjournments or postponements thereof) in accordance with the Interim Order;
(ic) if (A) the Sale shall not have been consummated on by either PCS or before September 30, 2011 (the “Outside Date”); provided, however, that, Agrium if the Sale Agrium Arrangement Resolution shall have failed to receive the requisite vote of the Agrium Securityholders at the Agrium Meeting (including any adjournments or postponements thereof) in accordance with the Interim Order;
(d) by either PCS or Agrium if the Effective Time shall not have occurred by September 30, 2011, and a New Merger Agreement shall have been executed, then, on or prior to the Outside Date shall become November 30Date, 2011; and (B) except that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i8.1(d) shall not have breached be available to any Party whose failure to fulfill any of its obligations in any material respect under this Agreement in any manner that shall have proximately caused has been the cause of, or resulted in in, the failure of the Sale Effective Time to have been consummated occur by such date; or;
(iie) by either PCS or Agrium if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation any of the Sale and conditions set forth in Section 6.1 or Section 6.3, in the case of PCS, or in Section 6.1 or Section 6.2, in the case of Agrium, has not been satisfied or waived by the Outside Date or such Order shall have become final and non-appealable, condition is incapable of being satisfied by the Outside Date; provided that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have complied termination is in compliance with its obligations pursuant under Section 6.4, if applicable, and not then in breach of this Agreement so as to cause any of the conditions set forth in Section 5.1 with respect 6.1 or Sections 6.2 or 6.3, as applicable, not to such Order; or
(c) by Atlas:be satisfied;
(i) if (A) (x) any by PCS, prior to approval of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurateAgrium Arrangement Resolution, or (yii) APL shall have breached or failed by Agrium, prior to perform any approval of its covenants or agreements set forth the PCS Arrangement Resolution, following the occurrence of a Damages Event in this Agreement, in each case such that any condition set forth respect of the other Party as provided in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement7.2(a); or
(dg) by APL, if (i)(A) any either PCS or Agrium following the occurrence of a Damages Event in respect of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth other Party as provided in Section 6.3(a) or 6.3(b) would not be satisfied at Closing, and (ii) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date. The Party desiring to terminate this Agreement pursuant to this Section 7.1 shall give notice of such termination and the provisions of this Section 7.1 being relied on to terminate this Agreement to the other Parties7.2(d).
Appears in 2 contracts
Samples: Arrangement Agreement (Potash Corp of Saskatchewan Inc), Arrangement Agreement (Agrium Inc)
Termination. This Agreement may be terminated and the Sale may be abandoned at any time prior to the Closing (with any termination Date, whether before or after approval by APL also being an effective termination the shareholders of the respective parties hereto contemplated by APL Sub and any termination by Atlas also being an effective termination by ATN):this Agreement:
(a) by mutual written consent of APL and Atlas, by action the Boards of Directors of the APL Board Company and Atlas’s board of directors, respectively; orParent;
(b) by either APL or Atlas:
(i) any party hereto, by written notice to the other parties, if (A) the Sale Effective Time shall not have been consummated occurred on or before September 30, 2011 the date that is 12 months from the date hereof (the “Outside "Initial Termination Date”"); provided, however, that, that if on the Sale Initial Termination Date the conditions to the Closing set forth in Section 8.1(e) shall not have occurred by September 30been fulfilled but all other conditions to the Closing shall be fulfilled or shall be capable of being fulfilled, 2011, and a New Merger Agreement shall have been executed, then, then the Outside Initial Termination Date shall become November 30, 2011be extended to the 18-month anniversary of the date hereof; and (B) provided, further, that the Party seeking right to terminate this Agreement pursuant to under this Section 7.1(b)(i9.1(b) shall not have breached its obligations in be available to any material respect party whose failure to fulfill any obligation under this Agreement in or whose breach of any manner that shall have proximately caused agreement or covenant has been the cause of, or resulted in directly or indirectly in, the failure of the Sale Effective Time to occur on or before the Initial Termination Date or as it may be so extended.
(c) by any party hereto, by written notice to the other parties, if the Company Shareholders' Approval shall not have been consummated obtained at a duly held Company Special Meeting, including any adjournments thereof by such date; orthe Initial Termination Date;
(iid) by any party hereto, if an Order any state or federal law, order, rule or regulation is adopted or issued, which has the effect, as supported by the written opinion of outside counsel for such party, of prohibiting the Merger, or by any party hereto if any court of competent jurisdiction in the United States or any State shall have been entered issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale Merger, and such Order order, judgment or decree shall have become final and non-appealablenonappealable;
(e) by the Company prior to the time at which the Company Shareholders' Approval shall have been obtained, provided that upon five days' prior notice to Parent, if the Party seeking to terminate Company is not in breach of this Agreement pursuant to this Section 7.1(b)(ii) shall have complied with its obligations pursuant to Section 5.1 with respect to such Order; or
(c) by Atlas:
and, as a result of an Alternative Proposal, the Board of Directors of the Company determines in good faith, that (i) if (A) (x) the Alternative Proposal is financially superior to the Merger and the third party making the Alternative Proposal has demonstrated that any necessary financing has been obtained, or in the reasonable judgment of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL shall have breached or failed to perform any of its covenants or agreements set forth in this Agreement, in each case Company's financial advisor such that any condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; and (B) such untruth, inaccuracy, breach or failure to perform financing is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(d) by APL, if (i)(A) any of the representations or warranties of Atlas herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (B) Atlas or ATN shall have breached or failed to perform any of their respective covenants or agreements set forth in this Agreement, in each case such that any condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closingobtainable, and (ii) after consultation with its financial advisor and based upon the advice of outside counsel and such untruthother matters as the Board of Directors of the Company deems relevant, inaccuracyafter considering applicable provisions of state law and after giving effect to all concessions which may be offered by the other party pursuant to the proviso below, that failure to do so would likely result in a breach of its fiduciary duties under applicable law; provided, however, that prior to any such termination, the Company shall, and shall cause its respective financial and legal advisors to, negotiate with Parent to make such adjustments in the terms and conditions of this Agreement as would enable the Company to proceed with the transactions contemplated herein;
(f) by the Company, by written notice to Parent, if (i) there exist breaches of the representations and warranties of Parent made herein as of the date hereof which breaches, individually or in the aggregate, would or would be reasonably likely to result in a Parent Material Adverse Effect, and such breaches shall not have been remedied within 20 days after receipt by Parent of notice in writing from the Company, specifying the nature of such breaches and requesting that they be remedied, or (ii) Parent (or its appropriate subsidiaries) shall have failed to perform and comply with, in all material respects, its agreements and covenants hereunder, and such failure to perform is or comply shall not curable have been remedied within 20 days after receipt by Parent of notice in writing from the Company, specifying the nature of such failure and requesting that it be remedied; or
(g) by Parent, by written notice to the Company, if (i) there exist material breaches of the representations and warranties of the Company made herein as of the date hereof which breaches, individually or in the aggregate, would or would be reasonably likely to result in a Company Material Adverse Effect, and such breaches shall not have been remedied within 20 days after receipt by the Outside Date. The Party desiring Company of notice in writing from Parent, specifying the nature of such breaches and requesting that they be remedied, (ii) the Company (or its appropriate subsidiaries) shall not have performed and complied with its agreements and covenants contained in Sections 6.1(b) and 6.1(c) or shall have failed to terminate perform and comply with, in all material respects, its other agreements and covenants hereunder, and such failure to perform or comply shall not have been remedied within 20 days after receipt by the Company of notice in writing from Parent, specifying the nature of such failure and requesting that it be remedied; or (iii) the Board of Directors of the Company or any committee thereof (A) shall withdraw or modify in any manner adverse to Parent its approval or recommendation of this Agreement pursuant or the transactions contemplated herein, (B) shall fail to this Section 7.1 shall give notice reaffirm such approval or recommendation upon Parent's request within two days of such termination and request, (C) shall approve or recommend any acquisition of the provisions Company or a material portion of this Section 7.1 being relied on its assets or any tender offer for the shares of capital stock of the Company, in each case by a party other than Parent or any of its affiliates or (D) shall resolve to terminate this Agreement to take any of the other Partiesactions specified in clause (A), (B) or (C).
Appears in 2 contracts
Samples: Merger Agreement (Energy East Corp), Merger Agreement (CTG Resources Inc)
Termination. This Agreement may shall be terminated and the Sale may Merger shall be abandoned at any time prior to the Closing (with any termination by APL also being an effective termination by APL Sub and any termination by Atlas also being an effective termination by ATN):Effective Time, whether before or after receipt of the Required White Vote:
(a) by mutual written consent of APL and Atlas, by action automatically upon the valid termination of the APL Board and Atlas’s board Master Agreement pursuant to clause 13 of directors, respectively; orthe Master Agreement;
(b) by either APL or Atlas:
(i) if (A) the Sale shall not have been consummated on or before September 30, 2011 (the “Outside Date”); provided, however, thatWhite, if the Sale shall not have occurred by September 30Orange, 2011, and a New Merger Agreement shall have been executed, then, the Outside Date shall become November 30, 2011; and (B) 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 US HoldCo or resulted in the failure of the Sale to have been consummated by such date; or
(ii) if an Order shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Sale 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 5.1 with respect to such Order; or
(c) by Atlas:
(i) if (A) (x) any of the representations or warranties of APL herein shall be untrue or inaccurate on the date of this Agreement or shall thereafter become untrue or inaccurate, or (y) APL MergeCo shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement or the Master Agreement, in each case such that any which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.2(a) or 6.2(b) would not be satisfied at Closing; 6.2 of this Agreement and (B) such untruth, inaccuracy, breach or failure to perform is not curable by the Outside Date; or
(ii) if the Merger Agreement is terminated incapable of being cured (provided that, in order to terminate this Agreement pursuant to this subclause (ii), Atlas must exercise its right to do so within thirty days of the termination of the Merger Agreement); or
(dor is not cured) by APLOrange, if (i)(A) any of the representations US HoldCo or warranties of Atlas herein shall be untrue or inaccurate MergeCo by 5 p.m. New York time on the date Long Stop Date; provided that the failure of any such condition to be capable of satisfaction is not the result of a material breach of this Agreement or shall thereafter become untrue or inaccurateby White;
(c) by Orange, or (B) Atlas or ATN if White shall have breached or failed to perform any of their respective its representations, warranties, covenants or agreements set forth in this AgreementAgreement or any other Transaction Documents, in each case such that any which breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.3(a) or 6.3(b) would not be satisfied at Closing6.3 of this Agreement, and (ii) such untruth, inaccuracy, breach is incapable of being cured (or failure to perform is not curable cured) by White by 5 p.m. New York time on the Outside Long Stop Date. The Party desiring ; provided that the failure of any such condition to terminate be capable of satisfaction is not the result of a material breach of this Agreement pursuant to this Section 7.1 by Orange, US Holdco or MergeCo;
(d) by Orange or White, if any court of competent jurisdiction or any Governmental Authority shall give notice have issued an order, decree or ruling or taken any other action permanently enjoining, restraining or otherwise prohibiting the consummation of such termination and the provisions of this Section 7.1 being relied on to terminate transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-appealable;
(e) by Orange, if there occurs (i) a Change in White Recommendation (including by amending or supplementing the Proxy Statement to effect a Change in White Recommendation), or (ii) a material breach by White of its obligations under Section 5.1(a)(i), (ii), (iii) or (iv) or Section 5.2; or
(f) by either Orange or White, if the other PartiesRequired White Vote shall not have been obtained upon a vote taken thereon at the duly convened White Stockholders Meeting or any adjournment or postponement thereof at which the applicable vote was taken.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Coca-Cola Enterprises, Inc.)
