TO BE PERFORMED OR COMPLIED WITH
BY THEM AT OR BEFORE THE CLOSING.
(C)
PARENT SHALL HAVE DELIVERED TO THE COMPANY A CERTIFICATE, DATED
THE CLOSING DATE AND SIGNED BY A SENIOR EXECUTIVE OFFICER OF PARENT, AS TO THE
FULFILLMENT OF THE CONDITIONS SET FORTH IN SECTIONS 5.3(A) AND 5.3(B).
ARTICLE VI
NO SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1
No Survival of Representations, Warranties and Covenants. The
representations, warranties and covenants of the Company, Parent and MergerCo
contained in this Agreement, or in any certificate delivered in connection with
this Agreement (other than the covenants contained in Article I,
Sections 4.3(b), 4.6, 4.7 and 4.8 and Article IX of this Agreement) shall not
survive the Closing, and any and all breaches of such representations and
warranties and covenants shall be deemed waived as of the Closing.
ARTICLE VII
TERMINATION
7.1
Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(A)
BY THE WRITTEN AGREEMENT OF PARENT AND THE COMPANY;
(B)
BY EITHER THE COMPANY, ON THE ONE HAND, OR PARENT (ON BEHALF OF
ITSELF AND MERGERCO), ON THE OTHER HAND, BY WRITTEN NOTICE TO THE OTHER PARTY
AFTER 5:00 P.M. NEW YORK CITY TIME ON NOVEMBER 30, 2007 (THE "TERMINATION
DATE"), IF THE MERGER SHALL NOT HAVE BEEN EFFECTED PURSUANT HERETO, UNLESS SUCH
DATE IS EXTENDED BY THE MUTUAL WRITTEN CONSENT OF THE COMPANY AND PARENT,
PROVIDED THAT SUCH TERMINATION RIGHT SHALL NOT BE AVAILABLE TO (I) A PARTY WHOSE
FAILURE TO FULFILL OR CAUSE TO BE FULFILLED ANY OBLIGATION UNDER THIS AGREEMENT
HAS BEEN THE PRIMARY CAUSE OF THE FAILURE OF THE MERGER TO OCCUR ON OR PRIOR TO
SUCH DATE (INCLUDING ANY CIRCUMSTANCE IN WHICH THE COMPANY WOULD HAVE THE RIGHT
TO TERMINATE THIS AGREEMENT UNDER SECTION 7.1(D)) OR (II) PARENT (ON BEHALF OF
ITSELF AND MERGERCO) UNDER ANY CIRCUMSTANCE IN WHICH THE COMPANY WOULD WITHIN
SIX BUSINESS DAYS HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UNDER
SECTION 7.1(D);
33
(C)
BY EITHER PARENT (ON BEHALF OF ITSELF AND MERGERCO), ON THE ONE
HAND, OR THE COMPANY, ON THE OTHER HAND, BY WRITTEN NOTICE TO THE OTHER PARTY
(WHICH, IN THE CASE OF THE PARENT, SHALL INCLUDE MERGERCO) IF:
(I)
THE OTHER PARTY HAS (AND THE TERMINATING PARTY SHALL NOT HAVE)
FAILED TO PERFORM AND COMPLY, IN ALL MATERIAL RESPECTS, WITH ALL AGREEMENTS,
COVENANTS AND CONDITIONS HEREBY REQUIRED TO HAVE BEEN PERFORMED OR COMPLIED WITH
BY SUCH PARTY PRIOR TO THE TIME OF SUCH TERMINATION, AND SUCH FAILURE SHALL NOT
HAVE BEEN CURED WITHIN 30 DAYS FOLLOWING WRITTEN NOTICE OF SUCH FAILURE; OR
(II)
ANY EVENT SHALL OCCUR AFTER THE DATE HEREOF THAT SHALL HAVE MADE
IT IMPOSSIBLE TO SATISFY A CONDITION PRECEDENT TO THE TERMINATING PARTY'S
OBLIGATIONS TO PERFORM ITS OBLIGATIONS HEREUNDER, UNLESS THE OCCURRENCE OF SUCH
EVENT SHALL BE DUE TO THE FAILURE OF THE TERMINATING PARTY TO PERFORM OR COMPLY
WITH ANY OF THE AGREEMENTS, COVENANTS OR CONDITIONS HEREOF TO BE PERFORMED OR
COMPLIED WITH BY SUCH PARTY