Common use of Option to Proceed Clause in Contracts

Option to Proceed. (a) Notwithstanding a Pre-Closing Breach by the Stockholders, the Company or any of the Subsidiaries, or the inability of the Stockholders to give title, make conveyance or deliver possession of any of the Shares, or to satisfy all of the terms and conditions precedent to Closing as set forth in this Agreement, all as herein stipulated, the Buyer may elect by written notice given to the Stockholders' Representative at or prior to the Closing Date either to (i) terminate this Agreement, or (ii) extend the scheduled Closing Date by 30 days, during which period the Stockholders shall use their best efforts to remove all encumbrances, if any, not permitted by the terms of this Agreement, and shall use reasonable efforts to remove all other defects in title, and to deliver possession and good, clear and marketable title to the Shares and to satisfy all other conditions to closing as provided herein, and to make the assets of the Company and the Subsidiaries conform to the provisions herein, as the case may be. If the Stockholders are unable, upon expiration of such 30-day period, to remove all such encumbrances and defects and to satisfy all such conditions to Closing, the Buyer may elect, by written notice given to the Stockholders' Representative, to (x) terminate this Agreement, (y) take title to the Shares, or (z) extend the Closing Date for an additional 30 days. (b) If the Buyer elects to extend the Closing Date for an additional 30 days pursuant to clause (z) of paragraph (a) above, the Buyer and the Stockholders' Representative shall, within the 30-day period specified in clause (z) of paragraph (a) above, agree upon the amount of the diminution in the value of the Shares being transferred to the Buyer as a result of the Pre-Closing Breach or the cost to the Buyer of curing such defect (the "Adjustment Amount"), and the Base Purchase Price shall be reduced by the Adjustment Amount. The Buyer and the Stockholders' Representative shall use their best efforts to agree upon the Adjustment Amount within such 30-day period; provided, however, that if the Buyer and the Stockholders' Representative cannot agree upon the Adjustment Amount within such 30-day period, the Buyer may terminate this Agreement in accordance with clause (i) of paragraph (a) above.

Option to Proceed. (a) Notwithstanding In the event of a Pre-Closing Breach by the Stockholders, Stockholders or the Company or any of the SubsidiariesCompany, or the inability of the Stockholders to give title, make conveyance or deliver possession of any of the Shares, or the inability of the Stockholders or the Company to satisfy all of the terms and conditions precedent to Closing as set forth in this Agreement, all as herein stipulated, the Buyer may elect by written notice given to the Stockholders' Representative and the Company at or prior to the Closing Date either to (i) terminate this Agreement, or (ii) extend the scheduled Closing Date by 30 days, during which period the Stockholders shall use their best efforts to cure the Pre-Closing Breach, remove all encumbrancesShare Encumbrances, if any, not permitted by the terms of this Agreement, and shall use reasonable efforts to remove all other defects in title, and to deliver possession and good, clear and marketable title to the Shares Shares, and the Stockholders or the Company (as the case may be) shall use their best efforts to satisfy all other conditions to closing Closing as provided herein, and to make the assets of the Company and the Subsidiaries conform to the provisions herein, as the case may be. If the Stockholders or the Company (as the case may be) are unable, upon expiration of such 30-day period, to cure the Pre-Closing Breach, remove all such encumbrances and defects and to satisfy all such conditions to Closing, the Buyer may elect, by written notice given to the Stockholders' RepresentativeRepresentative and the Company, to (x) terminate this Agreement, (y) take title to proceed with the SharesClosing, or (z) extend the Closing Date for an additional 30 days. (b) If the Buyer elects to extend the Closing Date for an additional 30 days pursuant to clause (z) of paragraph (a) above, the Buyer and the Stockholders' Representative shall, within the 30-day period specified in clause (z) of paragraph (a) above, agree upon the amount of the diminution in the value of the Shares being transferred to the Buyer as a result of the Pre-Closing Breach or the cost to the Buyer of curing such the applicable breach, failure or defect (the "Adjustment Amount"), and the Base Purchase Price shall be reduced by the Adjustment Amount. The Buyer and the Stockholders' Representative shall use their best efforts to agree upon the Adjustment Amount within such 30-day period; provided, however, that if the Buyer and the Stockholders' Representative cannot agree upon the Adjustment Amount within such 30-day period, the Buyer may terminate this Agreement in accordance with clause (i) of paragraph (a) aboveAgreement.

Option to Proceed. (a) Notwithstanding a Pre-Closing Effective Breach by the Stockholders, the Company Vista or any of the SubsidiariesStockholder, or the inability of the Stockholders to give title, make conveyance Vista or deliver possession of any of the Shares, or Stockholder to satisfy all of the terms and conditions precedent to Closing the Merger as set forth in this AgreementAgreement and Plan of Merger, all as herein stipulated, the Buyer Peritus may elect by written notice given to the Stockholders' Representative at Vista on or prior to the Closing Expiration Date either to (i) terminate this AgreementAgreement and Plan of Merger, or (ii) extend postpone the scheduled Closing Expiration Date by 30 days, during which period the Stockholders Vista and each Stockholder shall use their its respective best efforts to remove satisfy all encumbrances, if any, not permitted by the terms of this Agreement, and shall use reasonable efforts to remove all other defects in title, and to deliver possession and good, clear and marketable title such conditions to the Shares and to satisfy all other conditions to closing Merger as provided herein, and to make the assets of the Company and the Subsidiaries conform to the provisions herein, as the case may be. If Vista and the Stockholders are unable, upon expiration of such 30-day period, to remove all such encumbrances and defects and to satisfy all such conditions to Closingthe Merger, the Buyer Peritus may elect, by written notice given to the Stockholders' Representative, Vista to (x) terminate this AgreementAgreement and Plan of Merger, (y) take title proceed to consummate the SharesMerger, or (z) extend postpone the Closing Expiration Date for an additional 30 days. (b) If the Buyer Peritus elects to extend postpone the Closing Expiration Date for an additional 30 days pursuant to clause (z) of paragraph (a) above, the Buyer then (i) Peritus and the Stockholders' Representative Vista shall, within the 30-day period specified in clause (z) of paragraph (a) above, agree upon the amount of the diminution in the value of the Shares being transferred to the Buyer Vista as a result of the Pre-Closing Effective Breach or the cost to the Buyer Peritus of curing such defect (the "Pre-Effective Adjustment Amount"), and (ii) the Base Purchase Price Conversion Ratio shall be reduced adjusted so as to reduce the number of shares of Peritus Class A Common Stock to be issued to the Stockholders in connection with the Merger by the number of such shares calculated by dividing (A) the Pre-Effective Adjustment AmountAmount by (B) the Fair Market Value of such shares. The Buyer Peritus and the Stockholders' Representative Vista shall use their respective best efforts to agree upon the Pre-Effective Adjustment Amount and the related adjustment of the Conversion Ratio within such 30-day period; provided, however, that if the Buyer Peritus and the Stockholders' Representative Vista cannot agree upon the Pre-Effective Adjustment Amount and the related adjustment of the Conversion Ratio within such 30-day period, the Buyer Peritus may terminate this Agreement and Plan of Merger in accordance with clause (i) of paragraph (a) above. For the purposes of this Agreement and Plan of Merger, the "Fair Market Value" of shares of Peritus Class A Common Stock shall be deemed equal to $6.50 per share.