1Termination. This Agreement may be terminated at any time prior to the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: (a) At any time by the mutual written agreement of C&N and ▇▇▇▇▇▇▇▇▇▇▇; (b) By either C&N or Susquehanna (provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or (c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement; (d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation; (e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable; (f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal; (g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or (h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist: A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated:
Appears in 2 contracts
Sources: Merger Agreement (Citizens & Northern Corp), Merger Agreement (Citizens & Northern Corp)
1Termination. This Agreement may be terminated and the Merger abandoned at any time prior to the Effective Date, whether before or after approval Time of the Merger by the shareholders of Susquehanna: Merger:
(a) At any time by By the mutual written agreement consent in writing of C&N ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇;; or
(b) By either C&N the Board of Directors of ▇▇▇▇▇▇▇ or Susquehanna Bankshares if the Merger shall not have occurred on or prior to July 31, 2026, provided that the failure to consummate the Merger on or before such date is not caused by any breach of any of the representations, warranties, covenants or other agreements contained herein by the Party electing to terminate pursuant to this Section 10.1(b);
(provided, c) By the Board of Directors of ▇▇▇▇▇▇▇ or Bankshares (provided that the terminating Party is not then in material breach of any representation, warranty, covenant, covenant or other agreement contained in this Agreement) if there shall have been a in the event of material breach by the other party of any of the obligationsits representations, warranties, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth other agreement contained in this Agreement on to be performed by them prior to the part Effective Time of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by SusquehannaMerger, which breach or failure to be truebreach, either individually or in the aggregate combined with all other breaches by such Party (or failures of such representations or warranties to be true)the other party, would constitutewould, if occurring or continuing on the Closing Date, the constitute a failure of a condition to any of the terminating party’s conditions to closing set forth in Section 8.2 in the case of a termination by C&NArticles 7, 8 or Section 8.39, in the case of termination by Susquehannaas applicable, and which is cannot be or has not been cured within thirty (30) days following after the giving of written notice to the breaching Party thereof; or
(d) By the Board of Directors of ▇▇▇▇▇▇▇▇▇▇▇▇ or Bankshares, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna Bankshares fail to approve the transactions transaction contemplated by this Agreement at the Susquehanna ShareholdersBankshares Stockholders’ Meeting meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna Bankshares hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna Bankshares shall have withdrawn, modified or changed the Susquehanna Recommendation made a Change in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;; or
(e) By either the Board of Directors of ▇▇▇▇▇▇▇ or Bankshares in the Parties hereto if event (i) any Consent of any Regulatory Authority required for consummation of the Merger and the other transactions contemplated hereby shall have been denied by final nonappealable action has been of such authority or if any action taken by a Bank Regulator whose approval such authority is required in connection with not appealed within the time limit for appeal, (ii) the shareholders of Bankshares fail to approve this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable Merger and (B) does not approve this Agreement or the transactions contemplated herebyhereby as required by applicable law at Bankshares’s shareholders’ meeting where the transactions were presented to such shareholders for approval and voted upon, or (iiiii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;nonappealable; or
(f) By the Board of Directors of C&N ▇▇▇▇▇▇▇ or Bankshares (iprovided that the terminating Party is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement) if Susquehanna upon delivery of not less than ten (10 days) prior written notice of termination at the time that the terminating party has received a Superior Proposal and determined in good faith that any of the conditions precedent to its obligations to consummate the Merger (iiother than as contemplated by Section 10.1(e) in accordance with Section 5.8 of this Agreement, ) cannot be satisfied or fulfilled by the Board date specified in Section 10.1(b) of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;this Agreement; or
(g) By the Board of Directors of Susquehanna Norwood, (A) if Susquehanna has received a Susquehanna Superior Proposal and▇▇▇▇▇▇▇▇▇▇ fails to hold its shareholder meeting to vote on this Agreement within the time frame set forth in Section 5.5 hereof, in accordance with Section 5.8, the or (B) if Bankshares’s Board of Directors either (i) fails to recommend that the shareholders of Susquehanna has delivered Bankshares vote in favor of the adoption of this Agreement, or (ii) makes a Final Notice of Superior ProposalChange in Recommendation; or
(h) By Susquehanna the Board of Directors of Bankshares prior to obtaining shareholder approval of the Merger, in the event that, after it has received a Superior Proposal in compliance with Section 5.6 hereof and otherwise complied with its obligations under Section 5.6, the Board makes the determination in good faith based on the advice of legal counsel that failure to pursue such Superior Proposal is reasonably likely to cause the directors of Bankshares to breach their fiduciary duties under applicable law, and, provided that Bankshares is not in breach of the provisions of this Agreement, including, but not limited to Section 5.6 hereof; provided, however, that this Agreement may be terminated by Bankshares pursuant to this Section 10.1(h) only after the fifth calendar day following ▇▇▇▇▇▇▇’▇ receipt of written notice from Bankshares advising ▇▇▇▇▇▇▇ that Bankshares is prepared to enter into an acquisition agreement with respect to such Superior Proposal, and only if, (i) during such five-calendar day period, Bankshares has caused its financial and legal advisors to negotiate with Norwood in good faith to make such adjustments in the terms and conditions of this Agreement such that such Superior Proposal would no longer constitute a Superior Proposal and (ii) Bankshares’s Board of Directors has considered such adjustments in the terms and conditions of this Agreement resulting from such negotiations and has concluded in good faith, after consultation with and considering the written advice of outside legal and financial advisors that such Superior Proposal remains a Superior Proposal even after giving effect to the adjustments proposed by ▇▇▇▇▇▇▇, and (iii) Bankshares has paid the Termination Fee set forth in Section 10.2.
(i) By the Board of Directors of Bankshares, at any time during the threefive-day period following commencing on the Determination Date (as defined below) (Date, such termination to be effective on the “Notice Period”)10th day following such Determination Date, if and only if both of the following conditions (A) and (B) existare satisfied:
A(1) the ▇▇▇▇▇▇▇ Market Value on the Determination Date is less than 80% of the Initial ▇▇▇▇▇▇▇ Market Value; and
(2) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price ▇▇▇▇▇▇▇ Market Value on the Determination Date by the Initial ▇▇▇▇▇▇▇ Market Value shall be less than the number obtained by dividing (x) the Final Index Price on by (y) the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Initial Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&NPrice minus 0.20; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day notice period. For a period of five (5The right to termination pursuant to this Section 10.1(i) Business Days after receipt of such noticeshall be subject, C&N shall have the option of increasing the Conversion Ratio in a manner suchhowever, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not following three sentences. If Bankshares elects to exist. If C&N makes exercise its termination right pursuant to this election, within such periodSection 10.1(i), it shall give prompt written notice thereof to Susquehanna Norwood. During the five day period commencing with its receipt of such election notice, ▇▇▇▇▇▇▇ shall have the option, at its sole discretion, of paying additional Merger Consideration by increasing the Stock Consideration to equal the lesser of: (A) the quotient, the numerator of which is equal to the product of the Initial ▇▇▇▇▇▇▇ Market Value, the Stock Consideration (as then in effect), and the revised Conversion RatioIndex Ratio minus 0.20, whereupon and the denominator of which is the ▇▇▇▇▇▇▇ Market Value on the Determination Date or (B) the quotient determined by dividing the Initial ▇▇▇▇▇▇▇ Market Value by the ▇▇▇▇▇▇▇ Market Value on the Determination Date and multiplying the quotient by the product of the Stock Consideration (as then in effect) and 0.80. If within such five business day period, ▇▇▇▇▇▇▇ delivers written notice to Bankshares that it intends to proceed with the Merger by paying such additional consideration as contemplated by the preceding sentence, then no termination shall have occurred pursuant to this Section 12.1(h) 10.1(i), and this Agreement shall remain in full force and effect in accordance with its terms (except as that the Conversion Ratio Stock Consideration shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h)10.1(i) only, the following terms shall have the meanings indicated: indicated below:
Appears in 2 contracts
Sources: Merger Agreement (PB Bankshares, Inc.), Merger Agreement (PB Bankshares, Inc.)
1Termination. This Agreement may be terminated prior to the Closing notwithstanding the adoption of this Agreement by Parent as sole stockholder of Merger Sub or (except with respect to Sections 7.1(d), 7.1(f) and 7.1(h)) receipt of the Company Required Vote:
(a) by mutual written consent of Parent and the Company at any time prior to the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna:
(a) At any time by the mutual written agreement of C&N and ▇▇▇▇▇▇▇▇▇▇▇Time;
(b) By by either C&N Parent or Susquehanna (the Company if the condition set forth in Section 6.1(c) is not satisfied and a Legal Restraint giving rise to such nonsatisfaction has become final and nonappealable; provided, that the terminating right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a Party is not then if (i) its (or in the case of Parent, its or Merger Sub’s) material breach of any representationprovision of this Agreement was a principal cause of the failure to satisfy the condition set forth in Section 6.1(c) or of such Legal Restraint becoming final and nonappealable or (ii) it (or in the case of Parent, warrantyit or Merger Sub) failed to comply in any material respect with its obligations under this Agreement to prevent the entry of or remove such Legal Restraint;
(c) by either Parent or the Company if the Closing shall not have occurred on or prior to 11:59 p.m. Eastern Time on September 5, covenant2025 (such date, the “Termination Date”); provided, that the right to terminate this Agreement pursuant to this Section 7.1(c) shall not be available to any Party if its (or other agreement contained in this Agreementthe case of Parent, Merger Sub’s) if there shall have been a material breach of any provision of this Agreement has resulted in, or was a principal cause of, the failure of the obligationsClosing to occur by the Termination Date;
(d) by either Parent or the Company, if the Company Stockholder Meeting (including any recess, adjournment or postponement thereof made in accordance with Section 5.2(b)) shall have been duly convened and concluded and at which a vote on the adoption of this Agreement shall have been taken but the Company Required Vote shall not have been obtained;
(e) by Parent, if the Company has breached or failed to perform any of its covenants or agreements in this Agreement, or if any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth of the Company in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehannais inaccurate, which breach breach, failure or failure to be true, either individually or inaccuracy would result in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the a failure of a condition set forth in Section 8.2 in 6.2, if measured as of the case of time Parent asserts a termination by C&N, or Section 8.3, in the case right of termination pursuant to this Section 7.1(e), except that for so long as such breach, failure or inaccuracy is reasonably capable of being cured by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain fourth business day prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall , Parent will not have occurred by the Termination Date, or such later date as shall have been agreed be entitled to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c7.1(e) prior to the delivery by Parent to the Company of written notice of such breach, failure or inaccuracy, delivered at least 30 days (or, in the case a breach of the covenants or agreements in Section 4.3, Section 5.1 or Section 5.2, 7 days) prior to such termination (or such shorter period of time as remains prior to the fourth business day immediately preceding the Termination Date, the shorter of such periods, the “Company Breach Notice Period”), stating Parent’s intention to terminate this Agreement pursuant to this Section 7.1(e) and the basis for such termination, it being understood that Parent will not be entitled to terminate this Agreement pursuant to this Section 7.1(e) if such breach, failure or inaccuracy has been cured, or remains reasonably capable of being cured, prior to the failure expiration of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purposeCompany Breach Notice Period; provided, however, that no termination Parent shall not have the right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with terminate this Agreement and the transactions contemplated hereby, which final action (Apursuant to this Section 7.1(e) has become non-appealable and (B) does not approve if Parent or Merger Sub is then in breach of any covenant or agreement of this Agreement or the transactions contemplated herebyany representation or warranty of Parent in this Agreement is inaccurate, or (ii) in each case, such that any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealablecondition set forth in Section 6.3 would not then be satisfied;
(f) By by Parent, if at any time prior to the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this AgreementCompany obtaining the Company Required Vote, the Company Board (acting upon the recommendation of Directors of Susquehanna (Athe Special Committee) enters into or any committee thereof, including the Special Committee or any subcommittee thereof, makes a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Company Adverse Change Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By by the Board Company, if Parent or Merger Sub has breached or failed to perform any of Directors its respective covenants or agreements in this Agreement, or if any of Susquehanna the representations or warranties of Parent or Merger Sub in this Agreement is inaccurate, which breach, failure to perform or inaccuracy would result in a failure of a condition set forth in Section 6.3, as applicable, if Susquehanna measured as of the time the Company asserts a right of termination pursuant to this Section 7.1(g), except that for so long as such breach, failure or inaccuracy is reasonably capable of being cured by the fourth business day prior to the Termination Date, the Company will not be entitled to terminate this Agreement pursuant to this Section 7.1(g) prior to the delivery by the Company to Parent of written notice of such breach, delivered at least 30 days prior to such termination (or such shorter period of time as remains prior to the Termination Date, the shorter of such periods, the “Parent Breach Notice Period”), stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(g) and the basis for such termination, it being understood that the Company will not be entitled to terminate this Agreement pursuant to this Section 7.1(g) if such breach, failure or inaccuracy has received a Susquehanna Superior Proposal andbeen cured, or remains reasonably capable of being cured, prior to the expiration of the Parent Breach Notice Period; provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(g) if the Company is then in breach of any covenant or agreement of this Agreement or any representation or warranty of the Company in this Agreement is inaccurate, in accordance with each case, such that any condition set forth in Section 5.86.2, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposalas applicable, would not then be satisfied; or
(h) By Susquehanna by the Company, at any time during prior to the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both receipt of the following conditions (A) Company Required Vote, in order to, immediately thereafter, accept a Superior Proposal and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For enter into a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Company Acquisition Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modifiedSection 5.1(b), so long as prior to or substantially concurrently with, and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h)as a condition to, such termination, the following terms shall have Company pays the meanings indicated: Company Termination Fee due to Parent in accordance with Section 7.3(b).
Appears in 1 contract
1Termination. This Prior to the Closing, this Agreement may be terminated at any time prior to terminated, and the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: transactions contemplated hereby abandoned:
(a) At any time 8.1.1 by the mutual written agreement of C&N Buyer and ▇▇▇▇▇▇▇▇▇▇▇Seller;
8.1.2 by written notice delivered by either Buyer or Seller to the other, if the Closing shall not have occurred on or prior to December 31, 2020 (bthe “End Date”) By either C&N or Susquehanna (provided, that the terminating Party is not then in material other than due to a breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease hereunder of the Party seeking to be true) set forth in terminate this Agreement or as a result of the failure on the part of Susquehannasuch Party to comply with or perform any of its covenants, agreements or obligations under this Agreement and other than as a result of any closing condition in favor of the case non-terminating Party not being satisfied, which closing condition has been waived by the non-terminating Party); provided, however, that (A) right to terminate this Agreement under this Section 8.1.2 shall not be available to any Party whose failure to perform any of its obligations under this Agreement has been the cause of, or resulted in, the failure of the Closing not to have occurred on or before the End Date and (B) Buyer shall not have the right to terminate this Agreement pursuant to this Section 8.1.2 during the pendency of any proceeding brought by Seller for specific performance of this Agreement;
8.1.3 by written notice delivered by Buyer to Seller, if (a) there has been a breach by Seller of a termination representation or warranty of Seller contained in this Agreement or (b) there shall be a breach by C&NSeller of any covenant, agreement or C&Nobligation of Seller in this Agreement, and such breach described in the case of a termination by Susquehanna, which breach clause (a) or failure to be true, either individually or (b) would result in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 6.1.1 or Section 6.1.2 that has not been waived by Buyer, or in the case of a termination by C&Nbreach of any covenant or agreement, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty upon the earlier to occur of (30i) days following the 30th day after written notice thereof is given by Buyer to ▇▇▇▇▇▇▇▇▇▇▇, in Seller and (ii) the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain day that is five Business Days prior to the Termination End Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, that no Party Buyer may not terminate this Agreement pursuant to this Section 12.1(c8.1.3 if Buyer is in breach of its representations, warranties, covenants or agreements contained in this Agreement and such breach would result in the conditions to Closing set forth in Section 6.2.1 or 6.2.2 not being satisfied (other than those conditions that (x) if by their terms are to be satisfied at the Closing or (y) the failure of which to be satisfied is attributable primarily to a breach by Seller of its representations, warranties, covenants or agreements contained in this Agreement).
8.1.4 by written notice delivered by Seller to Buyer, if
(a) (i) there has been a breach by Buyer of a representation or warranty of Buyer contained in this Agreement or (ii) there shall be a breach by Buyer of any covenant, agreement or obligation of Buyer in this Agreement, and such breach described in clause (i) or clause (ii) would result in the Closing to have occurred on failure of a condition set forth in Section 6.2.1 or before said date was due to such Party’s Section 6.2.2 and has not been waived by Seller, or in the case of a breach of any representation, warranty, covenant or other agreement (excluding Section 4.4.5), is not cured upon the earlier to occur of (A) the 30th day after written notice thereof is given by Seller to Buyer and (B) the day that is five Business Days prior to the End Date; provided, that Seller may not terminate this Agreement pursuant to this Section 8.1.4(a) if Seller is in breach of its representations, warranties, covenants or agreements contained in this Agreement and such breach would result in the conditions to Closing set forth in 6.1.1 or Section 6.1.2 not being satisfied (other than those conditions that (x) by their terms are to be satisfied at the Closing or (y) the failure of which to be satisfied is attributable primarily to a breach by Buyer of its representations, warranties, covenants or agreements contained in this Agreement);
(i) all of the conditions set forth in Section 6.1 have been satisfied and remain satisfied (other than those conditions that (A) by their terms are to be satisfied at the Closing or (B) the failure of which to be satisfied is attributable primarily to a breach by Buyer of its representations, warranties, covenants or agreements contained in this Agreement), (ii) Seller has confirmed by notice to Buyer that all conditions set forth in Section 6.2 have been satisfied or that it is willing to waive any unsatisfied conditions set forth in Section 6.2 and (iii) the transactions contemplated hereunder shall not have been consummated within one Business Day after delivery of such notice, and Seller stood ready, willing and able to consummate the transactions contemplated hereunder during such period;
(c) subject to the Parties’ rights and obligations under this Agreement, Seller and Buyer have been informed orally or Seller or Buyer shall have been informed in writing by any applicable Competition Authority (or the staff thereof) that this Agreement or the Ancillary Agreements are determined by any applicable Competition Authority (or the staff thereof) to be an inadequate remedy under any Competition Law with respect to the transactions contemplated by the Bison Acquisition Agreement;
(d) By either Buyer is not approved as an acceptable purchaser by any applicable Competition Authority or the staff of any applicable Competition Authority informs both Seller and Buyer orally or informs Seller or Buyer in writing that the staff of such Competition Authority will not recommend approval of Buyer as an acquiror of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna RecommendationPurchased Assets;
(e) By either if any applicable Competition Authority (including the staff thereof) informs Seller or Buyer that such Competition Authority (including the staff thereof) will require the transfer to Buyer of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or material asset other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;than those that are Purchased Assets; or
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Bison Acquisition Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made terminated pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: its terms.
Appears in 1 contract
1Termination. This Agreement may be terminated at any time prior to the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: Closing:
(a) At any time by the mutual written agreement consent of C&N Purchaser and ▇▇▇▇▇▇▇▇▇▇▇the Company;
(b) By either C&N by Purchaser or Susquehanna the Company:
(provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreementi) if there shall have been a material breach of be any of the obligationsstatute, covenants law, regulation or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, rule that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve makes consummating the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified hereby illegal or changed the Susquehanna Recommendation in a manner adverse to C&N or made if any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity Authority shall have issued an a judgment, order, decreedecree or ruling, ruling or shall have taken any such other action restraining, enjoining or otherwise prohibiting the Merger issuance of the Shares contemplated hereby and such judgment, order, decree, decree or ruling or other action shall have become final and non-appealable;
(fii) By if the Board PRC Approval shall not have been obtained on or before the date that is sixty (60) Business Days after the date of Directors this Agreement; provided that Purchaser cannot terminate this Agreement pursuant to this Section 6.1(b)(ii) unless Purchaser has complied in all respects with its obligations under Section 5.9 of C&N this Agreement.
(c) by Purchaser:
(i) if Susquehanna has received the Company shall have (A) failed to perform any of its material obligations contained herein, or (B) breached any of its material representations or warranties contained herein, provided that Purchaser gives the Company written notice of such failure to perform or breach and the Company does not cure such failure to perform or breach within thirty (30) days after its receipt of such written notice;
(ii) if the Common Stock shall no longer be listed for trading on Nasdaq or another national securities exchange or automated quotation system;
(iii) if the License Agreement shall have been terminated; or
(iv) if any of the conditions set forth in Section 2.4(b) shall become impossible to fulfill (other than as a Superior Proposal result of any breach by Purchaser of the terms of this Agreement) and shall not have been waived in accordance with the terms of this Agreement.
(d) by the Company:
(i) if Parent or Purchaser shall have (A) failed to perform any of its material obligations contained herein, or (B) breached any of its material representations or warranties contained herein, provided that the Company gives Parent or Purchaser written notice of such failure to perform or breach and Parent or Purchaser, as applicable, does not cure such failure to perform or breach within thirty (30) days after its receipt of such written notice; or
(ii) if any of the conditions set forth in Section 2.4(a) shall become impossible to fulfill (other than as a result of any breach by the Company of the terms of this Agreement) and shall not have been waived in accordance with the terms of this Agreement.
(e) If this Agreement is terminated and the transactions contemplated hereby are not consummated as described above, this Agreement shall become void and of no further force and effect, provided, however, that (i) none of the Parties hereto shall have any liability in respect of a termination of this Agreement pursuant to Section 6.1(a), 6.1(b), and (ii) in accordance with nothing shall relieve any of the Parties from liability for actual damages resulting from a termination of this Agreement pursuant to Section 5.8 6.1(c) or 6.1(d); and provided, further, that none of the Parties hereto shall have any liability for speculative, indirect, unforeseeable or consequential damages or lost profits resulting from any legal action relating to any termination of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: .
Appears in 1 contract
1Termination. This Agreement may be terminated terminated, and the transactions contemplated hereby may be abandoned at any time prior to before the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: Closing:
(a) At any time by the mutual written agreement of C&N and ▇▇▇▇▇▇▇▇▇▇▇the Parties;
(b) By by either C&N or Susquehanna (providedof the Parties, that if the terminating Party is not then in material breach approvals of any representationGovernmental Authorities have been denied or refused, warranty, covenant, or other agreement contained notwithstanding the commercially reasonable efforts of the Party having responsibility for obtaining such approvals;
(c) at any time by the Sellers if any of the covenants set forth in this Agreement) if there Article VI shall have been a material breach of any of the obligations, covenants or agreements breached or any of the representations or warranties (or any such representation or warranty shall cease to be true) conditions set forth in this Agreement on Article VIII (other than the part receipt of Susquehannaall approvals of Governmental Authorities) shall not have been satisfied, performed, or complied with, in any material respect, at or before the case of a termination by C&NClosing Date and such breach, non-satisfaction, non-performance, or C&Nnon-compliance has not been cured or eliminated within thirty (30) calendar days after notice thereof has been given to the Purchaser, in provided that at the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures time of such representations or warranties to be true), would constitute, if occurring or continuing on termination the Closing Date, Sellers have neither breached any of the failure of a condition covenants set forth in Section 8.2 in the case of a termination by C&NArticle V nor failed to satisfy, perform, or Section 8.3comply with any of the conditions set forth in Article VII, in any material respect; or (d) at any time by the case Purchaser if any of termination by Susquehannathe material covenants set forth in Article V shall have been materially breached or any of the conditions set forth in Article VII (other than the receipt of all approvals of Governmental Authorities) shall not have been satisfied, performed, or complied with, in any material respect, before the Closing and which is such breach, non-satisfaction, non-performance or non-compliance has not been cured or eliminated within thirty (30) days following written after notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior thereof has been given to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&NSellers; provided that such notice of election to terminate may be withdrawn at any the time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have termination the option Purchaser has neither breached any of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition covenants set forth in either clause (A) Article VI nor failed to satisfy, perform, or (B) above shall be deemed not to exist. If C&N makes this electioncomply with any of the conditions set forth in Article VIII or Article 7.8, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: material respect; or
Appears in 1 contract
Sources: Stock Purchase Agreement (Security National Financial Corp)
1Termination. This Agreement may be terminated and the transactions contemplated hereby may be abandoned at any time prior to the Effective DateClosing, whether before or after approval which termination shall be effective immediately upon the delivery of a valid written notice of the Merger by terminating party to the shareholders of Susquehanna: other parties hereto:
(a) At any time by the mutual written agreement consent of C&N the Sellers and ▇▇▇▇▇▇▇▇▇▇▇Purchasers;
(b) By either C&N by any of Sellers, or Susquehanna (providedPurchasers, that if the Closing has not occurred on or before May 17, 2021 or such later date as the Sellers and Purchasers may agree upon in writing, unless the terminating Party party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement;
(c) by either Sellers or Purchasers, if any Order of any Governmental Body of competent jurisdiction permanently restraining, enjoining or otherwise preventing consummation of the transactions contemplated hereby has been issued and becomes final and non-appealable;
(d) by Sellers if they are not in material breach of its obligations under this Agreement, and if there shall have been a material breach by Purchasers of any of the obligationstheir representations, warranties, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth contained in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by SusquehannaAgreement, which breach or would result in the failure to be true, either individually satisfy one or in more of the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition conditions set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna6.3, and which is such breach, if curable, has not been cured within thirty (30) days following written after notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred thereof by the Termination Date, or such later date as shall have been agreed Sellers to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna RecommendationPurchasers;
(e) By either by Purchasers, if they are not in material breach of its obligations under this Agreement, and if there shall have been a material breach by Sellers of any of its respective representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required conditions set forth in connection with this Agreement and the transactions contemplated herebySection 6.2, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such orderbreach, decreeif curable, ruling or other action shall have become final and non-appealable;has not been cured within thirty (30) days after notice thereof by Purchasers to Sellers; or
(f) By the Board of Directors of C&N (i) by Purchasers if Susquehanna has received there is a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreementCasualty, or agreement if there is a material adverse change as described in principal with respect Section 6.2(e) on or prior to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: Date.
Appears in 1 contract
Sources: Purchase Agreement (Ryman Hospitality Properties, Inc.)
1Termination. This Agreement may be terminated at any time prior to the Effective Closing Date, whether before or after approval of the Merger by the shareholders of Susquehanna: :
(a) At any time by the mutual written agreement consent of C&N Purchaser and ▇▇▇▇▇▇▇▇▇▇▇the Holder Representative;
(b) By by either C&N Purchaser or Susquehanna (provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following Holder Representative upon written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by on or before October 30, 2021 (the Termination “Outside Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna”); provided, however, that no Party may the right to terminate this Agreement pursuant to under this Section 12.1(c10.1(b) if shall not be available to any party whose breach of any covenant or agreement hereunder caused, or resulted in, the failure of the Closing to have occurred occur on or before said date was due to such Party’s the Outside Date;
(c) by Purchaser, if (i) there is a breach of any representation, warranty, covenant or other agreement contained obligation of the Sellers such that the conditions set forth in Section 8.1(a) or Section 8.1(b) would not be satisfied; (ii) Purchaser shall have delivered to the Holder Representative a written notice of such breach; and (iii) at least [*] shall have elapsed since the delivery of such notice without such breach being cured; provided, however, that Purchaser shall have no right to terminate this Agreement pursuant to this Section 10.1(c) if Purchaser is in material breach of its representations and warranties under this Agreement or has failed in any material respect to perform its obligations under this Agreement;
(d) By either by the Holder Representative, if: (i) there is a breach of any representation, warranty, covenant or obligation of Purchaser such that the Parties hereto if conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied; (ii) Holder Representative shall have delivered to Purchaser a written notice of such breach; and (iii) at least [*] shall have elapsed since the shareholders delivery of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purposesuch notice without such breach being cured; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna Holder Representative shall have withdrawn, modified no right to terminate this Agreement pursuant to this Section 10.1(d) if the Sellers are in material breach of their representations and warranties under this Agreement or changed the Susquehanna Recommendation have failed in a manner adverse any material respect to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendationperform their obligations under this Agreement;
(e) By by either of Purchaser or the Parties hereto Holder Representative, if (i) final action has been taken by a Bank Regulator whose approval Governmental Authority of any competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order which (1) is required in connection with this Agreement and the transactions contemplated herebyeffect, which final action (A2) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court effect of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger Closing and such order, decree, ruling or other action shall have become (3) is final and non-appealable;; or
(f) By by Purchaser, in its sole discretion pursuant to Section 6.6(a), if the Board competent Governmental Authority requests any material condition to the granting of Directors the Foreign Investment Approval, such as Purchaser’s undertaking to divest, dispose of, or hold separate any of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 the businesses or assets of Corlieve or Purchaser and/or any of its Affiliates, other than an Acceptable Undertaking; provided, however that, prior to so terminating this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection Purchaser shall first consult with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following Holder Representative regarding such conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For for a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: at least [*].
Appears in 1 contract
1Termination. This Agreement may be terminated at any time prior to the Effective DateTime, whether before or after approval adoption of the Merger this Agreement by the shareholders stockholders of Susquehanna: Company:
(a) At any time by the mutual consent of Purchaser and Company in a written agreement instrument signed by each of C&N Company and ▇▇▇▇▇▇▇▇▇▇▇Purchaser;
(b) By by either C&N Purchaser or Susquehanna Company if any Governmental Entity that must grant a Requisite Regulatory Approval has denied approval of the Merger or the other transactions contemplated hereby and such denial has become final and nonappealable or any Governmental Entity of competent jurisdiction shall have issued a final nonappealable order permanently enjoining or otherwise prohibiting or making illegal the consummation of the transactions contemplated by this Agreement, unless the failure to obtain a Requisite Regulatory Approval shall be due to the failure of the party seeking to terminate this Agreement to perform or observe the covenants and agreements of such party set forth herein;
(c) by either Purchaser or Company if the Merger shall not have been consummated on or before April 18, 2023 (the “Termination Date”), unless the party seeking to terminate this Agreement is in breach of the terms of this Agreement;
(d) by either Purchaser or Company (provided, that the terminating Party party is not then in material breach of any representation, warranty, covenant, covenant or other agreement contained in this Agreementherein) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of SusquehannaCompany, in the case of a termination by C&NPurchaser, or C&NPurchaser, in the case of a termination by SusquehannaCompany, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇7.2, in the case of a termination by C&NPurchaser, or C&N7.3, in the case of a termination by SusquehannaCompany, and which is not cured within forty-five (45) calendar days following written notice to Company, in the case of a termination by Purchaser, or Purchaser, in the case of a termination by Company, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); oror
(ce) By either by Purchaser, if (i) prior to such time as the Requisite Company Vote is obtained, the Company or the Board of Directors of the Parties hereto if the Closing shall not have occurred by the Termination DateCompany (A) submits this Agreement to its stockholders without a recommendation for approval, or such later date otherwise withdraws or materially and adversely modifies (or publicly discloses its intention to withdraw or materially and adversely modify) its recommendation as contemplated by Section 6.4, or recommends to its stockholders an Acquisition Proposal other than the Merger, or (B) shall have been agreed breached its obligations under Section 6.4 or Section 6.13; or (ii) a tender offer or exchange offer for 25% or more of the outstanding shares of Company Common Stock is commenced (other than by Purchaser or a Subsidiary thereof), and the Board of Directors of the Company recommends that the stockholders of the Company tender their shares in such tender or exchange offer or otherwise fails to recommend that such stockholders reject such tender offer or exchange offer within the ten (10) business day period specified in writing by C&N and Susquehanna; provided, that no Party may Rule 14e-2(a) under the Exchange Act. The party desiring to terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representationclause (b), warranty(c), covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of this Section 8.1 shall give written notice of such termination to the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) party in accordance with Section 5.8 of this Agreement, 10.4 specifying the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, provision or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right provisions hereof pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that which such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: is effected
Appears in 1 contract
1Termination. This Agreement may be terminated at At any time prior to the Effective DateClosing, this Agreement may be terminated and the First Merger abandoned by authorized action taken by the terminating party, whether before or after approval of the Merger by the shareholders of Susquehanna: Required Stockholder Approval:
(a) At any time by the mutual written agreement consent of C&N and ▇▇▇▇▇▇▇▇▇▇▇▇ and the Company;
(b) By by either C&N Purchaser or Susquehanna (providedthe Company, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by on or before June 30, 2022 or such other date that Purchaser and the Company may agree upon in writing (the “Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna”); provided, however, that no Party may the right to terminate this Agreement pursuant to under this Section 12.1(c9.1(b) if shall not be available to any party whose failure to perform any covenant in this Agreement has been a principal cause of or resulted in the failure of the Closing to have occurred occur on or before said date was due to such Party’s the Termination Date;
(c) by either Purchaser or the Company, if any Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Legal Requirement which has become final and non-appealable and which is in effect and which has the effect of making the First Merger or any other transaction contemplated by this Agreement illegal or otherwise prohibits the consummation of the First Merger or any other transaction contemplated by this Agreement;
(d) by Purchaser, if there has been a breach of any representation, warranty, covenant or other agreement contained of the Company set forth in this Agreement;
Agreement such that the conditions set forth in Section 8.2(a) or Section 8.2(b) hereof would not be satisfied, and such breach has not been cured within fifteen (d15) By either of calendar days after written notice thereof to the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purposeCompany; provided, however, that no termination right cure period shall exist be required for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;breach which by its nature cannot be cured; or
(e) By either of by the Parties hereto Company, if (i) final action there has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated herebybreach of any representation, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated herebywarranty, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, covenant or agreement in principal with respect to the Superior Proposalof Purchaser, (B) fails to make the Susquehanna Recommendation Purchaser, Sub I or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition Sub II set forth in either clause (Athis Agreement such that the conditions set forth in Section 8.3(b) or Section 8.3(c) hereof would not be satisfied, and such breach has not been cured within fifteen (B15) above calendar days after written notice thereof to Purchaser; provided, however, that no cure period shall be deemed required for a breach which by its nature cannot to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: cured.
Appears in 1 contract
Sources: Merger Agreement (Universal Security Instruments Inc)
1Termination. This Agreement may be terminated terminated:
(a) at any time prior to the Effective Date, whether before or after approval of the Merger Closing Date by the shareholders of Susquehanna:
(a) At any time by the mutual written agreement of C&N and ▇▇▇▇▇▇ and ▇▇▇▇▇▇;
(b) By by either C&N Buyer or Susquehanna (provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto Seller if the Closing shall not have occurred by on or prior to December 20, 2024 (the Termination “Outside Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna”); provided, however, that no Party may the right to terminate this Agreement pursuant to under this Section 12.1(c9.1(b) if shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to have occurred occur on or before said such date was due to such Party’s or who is otherwise in material breach of any representation, warranty, covenant or other agreement contained in this Agreementherein;
(dc) By by either of Buyer or Seller by giving written notice to the Parties hereto other Party if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action Claim shall not be subject to appeal or shall have become final and non-appealable;; provided that the right to terminate this Agreement under this Section 9.1(c) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the primary cause of, or resulted in, such order, decree or ruling or other action; or
(fd) By by either Buyer or Seller by giving written notice to the Board other Party if there has been a breach by such other Party of Directors of C&N any representation, warranty or covenant contained in this Agreement and (i) if Susquehanna has received a Superior Proposal such breach would result in the failure to satisfy one or more of the conditions to Closing of the Party sending such notice (set forth in Section 7.2 or Section 7.3, as applicable) and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”)such breach, if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price a character that is capable of being cured, is not cured by the Starting Price breaching Party within thirty (30) days of its receipt of such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&Nfrom the other Party; provided that such notice of election (x) Buyer shall not be permitted to terminate may be withdrawn at this Agreement if Buyer is then in material breach of any time within of its representations, warranties, covenants or other agreements contained herein and such breach would result in the aforementioned three-day period. For a period failure to satisfy one or more of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and conditions to the extent required, that the condition Closing set forth in either clause Section 7.3 and (Ay) or (B) above Seller shall not be deemed not permitted to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and terminate this Agreement shall remain if Seller are then in effect material breach of any of their representations, warranties, covenants or other agreements contained herein and such breach would result in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references failure to satisfy one or more of the conditions to Closing set forth in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: 7.2.
Appears in 1 contract
1Termination. This Agreement may be terminated terminated:
(a) at any time prior to the Effective Date, whether before or after approval of the Merger Closing Date by the shareholders of Susquehanna:
(a) At any time by the mutual written agreement of C&N and ▇▇▇▇▇▇ and ▇▇▇▇▇▇;
(b) By by either C&N Buyer or Susquehanna (provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto Seller if the Closing shall not have occurred by on or prior to December 15, 2023 (the Termination “Outside Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna”); provided, however, that no Party may if, as of the Outside Date, all of the conditions set forth in Article VII have been satisfied or waived, other than the condition set forth in Section 7.1(a) or Section 7.1(b) (solely as it relates to Section 7.1(a)) and those conditions that by their nature can only be satisfied at or immediately prior to the Closing, then the Outside Date shall automatically be extended until March 15, 2024 (and such date shall be deemed the Outside Date for all relevant purposes under this Agreement); provided, further, that the right to terminate this Agreement pursuant to under this Section 12.1(c9.1(b) if shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Closing to have occurred occur on or before said such date was due to such Party’s or who is otherwise in material breach of any representation, warranty, covenant or other agreement contained in this Agreement;herein; US-DOCS\137246414.29
(dc) By by either of Buyer or Seller by giving written notice to the Parties hereto other Party if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the Merger consummation of any of the transactions contemplated by this Agreement, and such order, decree, ruling or other action Claim shall not be subject to appeal or shall have become final and non-appealable;; provided that the right to terminate this Agreement under this Section 9.1(c) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been the primary cause of, or resulted in, such order, decree or ruling or other action; or
(fd) By by either Buyer or Seller by giving written notice to the Board other Party if there has been a breach by such other Party of Directors of C&N any representation, warranty or covenant contained in this Agreement and (i) if Susquehanna has received a Superior Proposal such breach would result in the failure to satisfy one or more of the conditions to Closing of the Party sending such notice (set forth in Section 7.2 or Section 7.3, as applicable) and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”)such breach, if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price a character that is capable of being cured, is not cured by the Starting Price breaching Party within thirty (30) days of its receipt of such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&Nfrom the other Party; provided that such notice of election (x) Buyer shall not be permitted to terminate may be withdrawn at this Agreement if Buyer is then in material breach of any time within of its representations, warranties, covenants or other agreements contained herein and such breach would result in the aforementioned three-day period. For a period failure to satisfy one or more of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and conditions to the extent required, that the condition Closing set forth in either clause Section 7.3 and (Ay) or (B) above Seller shall not be deemed not permitted to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and terminate this Agreement shall remain if Seller are then in effect material breach of any of their representations, warranties, covenants or other agreements contained herein and such breach would result in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references failure to satisfy one or more of the conditions to Closing set forth in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: 7.2.
Appears in 1 contract
1Termination. This Agreement may be terminated at any time prior Prior to the Effective DateClosing, whether before or after approval of the Merger by the shareholders of Susquehanna:
(a) At any time by the mutual written agreement of C&N and ▇▇▇▇▇▇▇▇▇▇▇;
(b) By either C&N or Susquehanna (provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated herebyin this Agreement shall terminate: (i)upon the unanimous consent in writing of the Parties and JIP; (ii)by Purchaser upon written notice to Seller, which final action in the event Seller breaches or fails to perform any of its representations, warranties, covenants or agreements contained herein in any material respect; provided that if such breach or failure is curable, Purchaser may only terminate this Agreement upon written notice to Seller if Seller has not cured such breach or failure within the earlier of (A) has become non-appealable thirty (30) days after written notification of such breach and (B) does not approve May 31, 2017 (the “Long Stop Date”); (iii)by Seller upon written notice to Purchaser, in the event Purchaser breaches or fails to perform any of its representations, warranties, covenants or agreements contained herein in any material respect; provided that if such breach or failure is curable, Seller may only terminate this Agreement upon written notice to - 31 - Purchaser if Purchaser has not cured such breach or failure within the transactions contemplated hereby, or (ii) any court earlier of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter thirty (30) days after written notification of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) such breach and (B) exist:
A) the number obtained by dividing Long Stop Date; and (iv)in the event that Closing Price has failed to occur by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained Long Stop Date, by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) a Party upon written notice to C&Nthe other Party; provided that such notice of election that, this right to terminate may shall not be withdrawn at any time within the aforementioned three-day period. For exercisable by a period Party whose breach of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified)the cause of, or resulted in, the failure of Closing to occur on or prior to the Long Stop Date. For the avoidance of doubt, this Agreement shall not be terminable by any Party upon the occurrence of, and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h)after, the following terms shall have the meanings indicated: Closing.
Appears in 1 contract
Sources: Sale and Purchase Agreement
1Termination. This Agreement may be terminated at any time on or prior to the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: Closing:
(a) At any time by By the mutual written agreement of C&N Seller and ▇▇▇▇▇▇▇▇▇▇▇Buyer;
(b) By either C&N Either Seller or Susquehanna Buyer, by written notice, may terminate this Agreement if the Closing shall not have occurred on or before the first anniversary of the date hereof (the “Termination Date”); provided, however, that the terminating Party a party may not terminate this Agreement under this Section 12.1(b) if such party is not then at such time in material breach of any representation, warranty, covenant, covenant or other agreement contained in this Agreement;
(c) By Seller or Buyer, if there any court of competent jurisdiction or other Governmental Authority shall have been issued a material breach final and non-appealable order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby;
(d) By Buyer if (i) Seller shall have breached any of the obligationsits representations, warranties, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth contained in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by SusquehannaAgreement, which breach or failure would give rise to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, 10.2(a) or Section 8.3, in the case of termination by Susquehanna, (b) and which is cannot be or has not been cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of thereof by Buyer or (ii) Seller has had a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date)Material Adverse Effect; or
(c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;and
(e) By either of the Parties hereto Seller if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity Buyer shall have issued an orderbreached any of its representations, decreewarranties, ruling covenants or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) agreements contained in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect which would give rise to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in failure of a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause Section 10.3(a) and which cannot be or has not been cured within thirty (A30) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt days following written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: thereof by Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement
1Termination. This Agreement may be terminated at any time prior to the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: Closing:
(a) At any time by the mutual written agreement consent of C&N the Buyer and ▇▇▇▇▇▇▇▇▇▇▇the Seller;
(b) By either C&N or Susquehanna (providedby the Buyer in writing, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any without liability of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement Buyer on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures account of such representations or warranties to be true)termination, would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by on or before the Termination date that is sixty (60) days after the date hereof (the “Outside Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna”); provided, however, that no Party to the extent that on the date that is 60 days after the date hereof all of the conditions set forth in Section 8.3 have been satisfied or waived, other than the conditions with respect to actions the Parties are required to take at the Closing itself as provided herein; provided, however, that Buyer may not terminate this Agreement pursuant to this Section 12.1(c11.1(b) if Buyer is in breach of this Agreement and such breach was the primary cause of the failure of the Closing to have occurred on or prior to the Outside Date;
(c) by the Seller in writing, without liability of the Seller or the Seller on account of such termination, if the Closing has not occurred on or before said date was due the Outside Date; provided; however, that the Seller may not terminate this Agreement pursuant to such Party’s this Section 11.1(c) if the Seller or the Company are or were in breach of any representation, warranty, covenant or other agreement contained in this Agreement, which breach was the primary cause of the failure of the Closing to have occurred on or prior to the Outside Date;
(d) By either by Buyer in writing, if (i) Buyer, on the date of termination, is not in material breach of any of its representations or warranties and has not failed to perform in all material respects its obligations, covenants or agreements under this Agreement and (ii) (A) there is a breach or inaccuracy in any of the Parties hereto if the shareholders representations and warranties in Article III or Article IV of Susquehanna fail to approve the transactions contemplated by this Agreement at and such breach or inaccuracy (1) would result in the Susquehanna Shareholders’ Meeting called for that purpose; providedfailure of a condition precedent set forth in Section 8.1 or Section 8.2 to be satisfied and (2) is incapable of being cured or has not been cured within thirty (30) days after receipt by the Seller of written notice from the Buyer of the occurrence of such breach or inaccuracy, howeverand (3) such breach or inaccuracy has not been waived in writing by Buyer or (B) Seller, that no termination right or the Company Entities shall exist for Susquehanna hereunder ifhave failed to perform any obligation, covenant or agreement under this Agreement required to be performed by any such party prior to the Closing and such shareholder votefailure (1) would result in the failure of a condition precedent set forth in Section 8.1 or Section 8.2 to be satisfied, (2) is incapable of being cured or has not been cured within thirty (30) days after receipt by the Board Seller of Directors written notice from the Buyer of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation occurrence of such failure and (3) such failure has not been waived in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendationwriting by Buyer;
(e) By either of the Parties hereto by Seller in writing, if (i) final action Seller, on the date of termination, is not in material breach of any of its representations or warranties and has been taken by a Bank Regulator whose approval is required not failed to perform in connection with all material respects its obligations, covenants or agreements under this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into there is a letter of intent, an acquisition agreement, breach or agreement inaccuracy in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) representations and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end warranties of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition Buyer set forth in either clause this Agreement and such breach or inaccuracy (A1) would result in the failure of a condition precedent set forth in Section 8.1 or Section 8.3 to be satisfied and (2) is incapable of being cured or has not been cured within thirty (30) days after receipt by the Buyer of written notice from the Seller of the occurrence of such breach or inaccuracy, and (3) such breach or inaccuracy has not been waived in writing by Seller or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination Buyer shall have occurred pursuant failed to this Section 12.1(h) and perform any obligation, covenant or agreement under this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement required to “Conversion Ratio” shall thereafter be deemed to refer performed by Buyer prior to the Conversion Ratio after giving effect Closing and such failure (1) would result in the failure of a condition precedent set forth in Section 8.1 or Section 8.3 to any adjustment made pursuant to this Section 12.1(h). For purposes be satisfied, (2) is incapable of this Section 12.1(h), the following terms shall have the meanings indicated: being cured or has not been cured within thirty
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
1Termination. This Agreement may be terminated at any time prior to the Effective Closing Date, whether before or after approval of the Merger by the shareholders of Susquehanna: :
(a) At any time by By the mutual written agreement of C&N Executive and ▇▇▇▇▇▇▇▇▇▇▇the Company;
(b) By either C&N Executive or Susquehanna (provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination Company by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇the other hereto after 5:00 p.m. Central Standard Time on August 31, in 2017 if the case transactions contemplated hereby shall not have been consummated pursuant hereto, unless such date is extended by the mutual written consent of a termination by C&N, or C&N, in Executive and the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date)Company; or
(c) By either the Executive or the Company if: (i) the representations and warranties of the Parties hereto if Executive or the Closing Company, shall not have occurred by been true and correct in all material respects as of the Termination Date, date when made; (ii) the Executive or such later date as the Company shall have been agreed failed to perform and comply with, in writing all material respects, all agreements and covenants required by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on been performed or before said date was due complied with by such parties prior to the time of such termination and such failure to perform or comply shall be incurable or shall not have been cured within a reasonable period of time but not less than ten (10) days in duration following notice of such failure, provided that the terminating party shall have performed and complied with, in all material respects, all agreements and covenants required by this Agreement to have been performed or complied with by such terminating party prior to such Partytime; or (iii) any event shall have occurred or any fact or condition shall exist that shall have made it impossible to satisfy a condition precedent to the terminating party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail obligations to approve consummate the transactions contemplated by this Agreement at Agreement, unless the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right occurrence of such event or existence of such fact or condition shall exist for Susquehanna hereunder if, prior be due to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either failure of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve party seeking to terminate this Agreement or any of its Associates or Affiliates to perform or comply with any of the transactions contemplated herebycovenants, agreements, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: conditions
Appears in 1 contract
1Termination. This Notwithstanding anything to the contrary in this Agreement, this Agreement may be terminated and the Transaction and the other transactions contemplated by this Agreement abandoned at any time prior to the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: Closing:
(a) At any time by the mutual written agreement consent of C&N Seller and ▇▇▇▇▇▇▇▇▇▇▇the Purchasers;
(b) By either C&N by Seller, if the Purchasers shall have materially breached any of its representations, warranties, covenants or Susquehanna (provided, that the terminating Party is not then in material breach of any representation, warranty, covenant, or other agreement agreements contained in this Agreement) if there shall have been a material , and such breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease would give rise to be true) set forth in this Agreement on the part of Susquehanna, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Date, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, 8.3(a) or Section 8.3, in 8.3(b) and has not been cured by the case earlier of termination by Susquehanna, and which (i) the date that is not cured within thirty (30) days following written notice after the date that Seller has notified the Purchasers of such breach stating Seller’s intention to ▇▇▇▇▇▇▇▇▇▇▇terminate this Agreement pursuant to this Section 9.1(b) and the basis for such termination and (ii) the Outside Date; provided that Seller shall not be permitted to terminate this Agreement pursuant to this Section 9.1(b) if Seller has breached any of its representations, warranties, covenants or agreements contained in this Agreement, in the case of a termination by C&Neach case, such that any condition set forth in Section 8.2(a) or C&N, in the case of a termination by Susquehanna, or by its nature or timing canSection 8.2(b) would not be cured during such period (or such fewer days as remain prior to the Termination Date); orsatisfied;
(c) By either by the Purchasers, if Seller shall have materially breached any of its representations, warranties, covenants or agreements contained in this Agreement, and such breach would give rise to the Parties hereto failure of a condition set forth in Section 8.2(a) or Section 8.2(b) and has not been cured by the earlier of (i) the date that is thirty (30) days after the date that the Purchasers have notified Seller of such breach stating the Purchasers’ intention to terminate this Agreement pursuant to this Section 9.1(c) and the basis for such termination and (ii) the Outside Date; provided that the Purchasers shall not be permitted to terminate this Agreement pursuant to this Section 9.1(c) if the Purchasers have breached any of its representations, warranties, covenants or agreements contained in this Agreement, in each case such that any condition set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied;
(d) by Seller or by the Purchasers, subject to Section 11.7, if the Closing shall not have occurred by on or prior to 11:59 p.m. (New York City time) on January 28, 2025 (the Termination “Outside Date”); provided that if all of the conditions set forth in Article VIII, other than the conditions set forth in Section 8.1(a) or such later date as Section 8.1(b) (solely if the Law or Judgment relates to any Regulatory Laws), shall have been agreed satisfied or waived or shall be capable of being satisfied on such date if Closing were to in writing by C&N and Susquehannatake place on such date, then the Outside Date shall automatically be extended to 11:59 p.m. (New York City time) on April 28, 2025, which date shall thereafter be deemed to be the Outside Date; provided, that, the Purchasers and Seller shall amend the Outside Date to a date no earlier than July 28, 2025 if the Purchasers are able to obtain the extension under the Commitment Letter pursuant to Section 5.7(a)(y); provided, further, that no Party may (x) if all of the conditions set forth in Article VIII shall have been satisfied or waived (or in the case of conditions that by their nature are to be satisfied at the Closing, are then capable of being satisfied if the Closing were to take place on such date) on a date that occurs on or prior to the Outside Date but (y) the Closing would thereafter occur in accordance with Section 2.3 on a date (the “Specified Date”) that occurs after such Outside Date, then the Outside Date shall automatically be extended to such Specified Date (which, for the avoidance of doubt, will not be greater than four (4) Business Days after Closing pursuant to Section 2.3) and the Specified Date shall become the Outside Date for purposes of this Agreement; provided, further, that the right to terminate this Agreement pursuant to this Section 12.1(c9.1(d) if shall not be available to any Party whose failure to perform any covenant or agreement under this Agreement has been the primary cause of, or resulted in, the failure of the Closing to have occurred occur on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purposedate; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;or
(e) By either of by Seller or by the Parties hereto Purchasers, if (i) final action has been taken a Judgment issued by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court Governmental Entity of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;
(f) By nonappealable, permanently enjoining or otherwise permanently preventing the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both consummation of the following conditions (A) and (B) exist:
A) Transaction; provided that the number obtained by dividing the Closing Price by the Starting Price (such number being referred right to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right terminate this Agreement pursuant to this Section 12.1(h)9.1(e) shall not be available to any Party whose failure to perform any covenant or agreement under this Agreement has been the primary cause of, it shall give prompt (but in any case on or before resulted in, the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt issuance of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: Judgment.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Phibro Animal Health Corp)
1Termination. This Agreement may be terminated at any time prior to the Effective Date, whether before or after approval of the Merger by the shareholders of Susquehanna: Closing only as follows:
(a) At any time by the mutual written agreement consent of C&N Purchaser and ▇▇▇▇▇▇▇▇▇▇▇Merger Sub, on the one hand, and the Company, on the other hand;
(b) By by Purchaser and Merger Sub, providing written notice to the Company, if the Stockholders Consent has not been obtained by the Requisite Majority within forty-eight (48) hours of the execution and delivery of this Agreement by Purchaser and Merger Sub;
(c) by Purchaser and Merger Sub, providing written notice to the Company, if there has been a breach of the representations and warranties or covenants and agreements by the Company set forth in this Agreement, which would result in the failure of the conditions set forth in Sections 7.3(a) or 7.3(b) to be satisfied (so long as Purchaser and Merger Sub are not in material breach of their respective obligations under this Agreement and have provided the Company with written notice of its breach and the breach has continued without cure until the earliest to occur of (i) seven (7) Business Days following the date of such notice of breach and (ii) the Termination Date; provided, however, that no cure period shall be required for a breach or inaccuracy which by its nature cannot be cured;
(d) by the Company, providing written notice to Purchaser and Merger Sub, if there has been a breach of the representations and warranties or covenants and agreements by Purchaser or Merger Sub set forth in this Agreement, which would result in the failure of the conditions set forth in Sections 7.2(a) or 7.2(b) to be satisfied (so long as the Company is not in material breach of its obligations under this Agreement, and has provided Purchaser and Merger Sub with written notice of their breach and the breach has continued without cure until the earliest to occur of (i) seven (7) Business Days following the date of such notice of breach and (ii) the Termination Date; provided, however, that no cure period shall be required for a breach or inaccuracy which by its nature cannot be cured;
(e) by either C&N Purchaser and Merger Sub, on the one hand, or Susquehanna the Company, on the other hand, in the event that (i) any permanent injunction or action by any Governmental Authority of competent jurisdiction restraining, enjoining or otherwise prohibiting consummation of the transactions contemplated hereby becomes final and nonappealable, (ii) any Law makes consummation of the transactions contemplated hereby illegal or otherwise prohibited, or (iii) consummation of the transactions contemplated hereby would violate any nonappealable final Order of any Governmental Authority having competent jurisdiction;
(f) by Purchaser, if (A) within seventy (70) days after the date hereof, or (B) within one hundred (100) days after the date hereof, but only in the case of an Extension as provided for in Section 5.5(b) (the 70th or 100th date, as applicable, the “Specified Date”), and in each case of (A) and (B) the condition set forth in Sections 7.1(b) failed to be satisfied (provided, that such termination right shall only be exercisable by Purchaser for a period of ten (10) Business Days (the terminating Party is “Termination Right”) following the applicable Specified Date; provided, that if Purchaser does not then in material breach of any representationexercise its Termination Right under this Section 8.1(f) during such ten (10) Business Day period following the applicable Specified Date, warrantysuch Termination Right will be terminated and have no further force and effect;
(g) by either Purchaser and Merger Sub, covenanton the one hand, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligationsCompany, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on the part of Susquehannaother hand, in if the case of a termination by C&N, or C&N, in transactions contemplated hereby have not been consummated within 120 days following the case of a termination by Susquehanna, which breach or failure to be true, either individually or in date hereof (the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true“Termination Date”), would constitute, provided that if occurring or continuing on Purchaser does not exercise its Termination Right during the Closing Date, the failure of a condition ten (10) Business Day period set forth in Section 8.2 in 8.1(f), the case of a termination Termination Date shall be automatically extended by C&N, or Section 8.3, in the case of termination by Susquehanna, an additional 180 days (and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot such extended date shall be cured during such period (or such fewer days as remain prior to deemed for all purposes hereunder the Termination Date); or
(c) By either of the Parties hereto if the Closing provided that a party shall not have occurred by the Termination Date, or such later date as shall have been agreed be entitled to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c8.1(g) if that party’s action or failure to act has been a principal cause of or resulted in the failure of the Closing Merger to have occurred occur on or before said such date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at the Susquehanna Shareholders’ Meeting called for that purpose; provided, however, that no termination right shall exist for Susquehanna hereunder if, prior to such shareholder vote, the Board of Directors of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;
(e) By either of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining or otherwise prohibiting the Merger and such order, decree, ruling action or other action shall have become final and non-appealable;
(f) By the Board of Directors of C&N (i) if Susquehanna has received failure to act constitutes a Superior Proposal and (ii) in accordance with Section 5.8 breach of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day in the Notice Period) written notice to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day period. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated: .
Appears in 1 contract
Sources: Merger Agreement (ironSource LTD)
1Termination. This Agreement may only be terminated at any time prior to the Effective Date, whether before or after approval of Closing under the Merger by the shareholders of Susquehannafollowing circumstances:
(a) At any time by By the mutual written agreement consent of C&N and ▇▇▇▇▇▇▇ and ▇▇▇▇▇;
(b) By either C&N the Sellers or Susquehanna Buyer upon written notice to the other party, if the transactions contemplated by this Agreement have not been consummated on or before September 30, 2023 (the “End Date”); provided, however, that the terminating Party is right to terminate this Agreement pursuant to this Section 10.1(b) shall not then in be available to any party whose material breach of any representation, warranty, covenant, or other agreement contained in this Agreement) if there shall have been a material breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty shall cease to be true) set forth in this Agreement on has been the part of Susquehanna, in the case of a termination by C&Nprincipal cause of, or C&N, in the case of a termination by Susquehanna, which breach or failure to be true, either individually or in the aggregate with all other breaches by such Party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the Closing Dateprimarily resulted in, the failure of a condition set forth in Section 8.2 in the case of a termination by C&N, or Section 8.3, in the case of termination by Susquehanna, and which is not cured within thirty (30) days following written notice to ▇▇▇▇▇▇▇▇▇▇▇, in the case of a termination by C&N, or C&N, in the case of a termination by Susquehanna, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the Termination Date); or
(c) By either of the Parties hereto if the Closing shall not have occurred by the Termination Date, or such later date as shall have been agreed to in writing by C&N and Susquehanna; provided, that no Party may terminate this Agreement pursuant to this Section 12.1(c) if the failure of the Closing to have occurred on or before said date was due to such Party’s breach of any representation, warranty, covenant or other agreement contained in this Agreement;
(d) By either of the Parties hereto if the shareholders of Susquehanna fail to approve the transactions contemplated by this Agreement at to be consummated on or before the Susquehanna Shareholders’ Meeting called for End Date;
(c) by Buyer by written notice to the Seller Representative if there has been a material breach, inaccuracy in, or failure to perform any representation, warranty, covenant, or agreement made by Sellers pursuant to this Agreement that purposewould give rise to the failure of any of the conditions specified in Section 9.2, and such breach, inaccuracy, or failure is incapable of being cured by the End Date or, if capable of being so cured, has not been cured by Sellers by the earlier of (i) the End Date or (ii) ten days after the Seller Representative’s receipt of written notice of such breach, inaccuracy, or failure from Buyer; provided, howeverthat there is not then a material breach, inaccuracy in, or failure to perform any representation, warranty, covenant, or agreement made by Buyer pursuant this Agreement that would give rise to the failure of any of the conditions specified in Section 9.3;
(d) by Sellers by written notice to Buyer if there has been a material breach, inaccuracy in, or failure to perform any representation, warranty, covenant, or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions specified in Section 6.3 and such breach, inaccuracy, or failure is incapable of being cured by the End Date or, if capable of being so cured, has not been cured by Buyer by the earlier of (i) the End Date or (ii) ten days after ▇▇▇▇▇’s receipt of written notice of such breach, inaccuracy, or failure from the Company; provided, that no termination right shall exist for Susquehanna hereunder ifthere is not then a material breach, prior inaccuracy in, or failure to such shareholder voteperform any representation, warranty, covenant, or agreement made by Sellers pursuant this Agreement that would give rise to the Board failure of Directors any of Susquehanna shall have withdrawn, modified or changed the Susquehanna Recommendation conditions specified in a manner adverse to C&N or made any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation;Section 6.2; or
(e) By either by Buyer or Sellers in the event that there shall be any Legal Requirement that makes consummation of the Parties hereto if (i) final action has been taken by a Bank Regulator whose approval is required in connection with this Agreement and the transactions contemplated hereby, which final action (A) has become non-appealable and (B) does not approve by this Agreement or the transactions contemplated hereby, or (ii) any court of competent jurisdiction or other Governmental Entity shall have issued an order, decree, ruling or taken any other action restraining, enjoining illegal or otherwise prohibiting the Merger and such order, decree, ruling or other action shall have become final and non-appealable;prohibited.
(f) By the Board of Directors of C&N (i) if Susquehanna has received a Superior Proposal and (ii) in accordance with Section 5.8 of this Agreement, the Board of Directors of Susquehanna (A) enters into a letter of intent, an acquisition agreement, or agreement in principal with respect to the Superior Proposal, (B) fails to make the Susquehanna Recommendation or modifies or qualifies the Susquehanna Recommendation in a manner adverse to C&N or makes any statement, filing or release, in connection with the Susquehanna Shareholders’ Meeting or otherwise, inconsistent with the Susquehanna Recommendation, or (C) delivers a Final Notice of Superior Proposal;
(g) By the Board of Directors of Susquehanna if Susquehanna has received a Susquehanna Superior Proposal and, in accordance with Section 5.8, the Board of Directors of Susquehanna has delivered a Final Notice of Superior Proposal; or
(h) By Susquehanna at any time during the three-day period following the Determination Date (as defined below) (the “Notice Period”), if both of the following conditions (A) and (B) exist:
A) the number obtained by dividing the Closing Price by the Starting Price (such number being referred to herein as the “C&N Ratio”) shall be less than 0.80; and
B) (i) the C&N Ratio shall be less than (ii) the number obtained by dividing the Index Price on the Determination Date by the Index Price on the Starting Date (as defined below) and subtracting 0.200 from such quotient (such number being referred to herein as the “Index Ratio”). If Susquehanna elects to exercise its termination right pursuant to this Section 12.1(h), it shall give prompt (but in any case on or before the end of business on the last day Buyer in the Notice Periodevent the closing condition required by Section 9.2(f) written notice is not reasonably expected to C&N; provided that such notice of election to terminate may be withdrawn at any time within the aforementioned three-day periodoccur. For a period of five (5) Business Days after receipt of such notice, C&N shall have the option of increasing the Conversion Ratio in a manner such, and to the extent required, that the condition set forth in either clause (A) or (B) above shall be deemed not to exist. If C&N makes this election, within such period, it shall give prompt written notice to Susquehanna of such election and the revised Conversion Ratio, whereupon no termination shall have occurred pursuant to this Section 12.1(h) and this Agreement shall remain in effect in accordance with its terms (except as the Conversion Ratio shall have been so modified), and any references in this Agreement to “Conversion Ratio” shall thereafter be deemed to refer to the Conversion Ratio after giving effect to any adjustment made pursuant to this Section 12.1(h). For purposes of this Section 12.1(h), the following terms shall have the meanings indicated:
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Assure Holdings Corp.)