SATISFIED THAT THE CONTRIBUTION
AND DISTRIBUTION HAVE TAKEN PLACE IN ACCORDANCE WITH THE TERMS SET FORTH IN THE
DISTRIBUTION AGREEMENT.
SECTION 7.4
FRUSTRATION OF CONDITIONS.
NONE OF FOREST, SPINCO OR
THE COMPANY MAY RELY ON THE FAILURE OF ANY CONDITION SET FORTH IN THIS ARTICLE
VII TO BE SATISFIED IF SUCH FAILURE WAS CAUSED BY SUCH PARTY'S FAILURE TO ACT IN
GOOD FAITH OR TO USE ITS COMMERCIALLY REASONABLE EFFORTS TO CONSUMMATE THE
MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE OTHER
TRANSACTION AGREEMENTS.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVERS
Section 8.1
Termination.
This Agreement may be terminated and the
transactions contemplated hereby may be abandoned prior to the Effective Time
(notwithstanding the Requisite Approval) as follows:
(A)
BY THE MUTUAL WRITTEN CONSENT OF EACH PARTY HERETO, WHICH CONSENT
SHALL BE EFFECTED BY ACTION OF THE BOARD OF DIRECTORS OF EACH SUCH PARTY;
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(B)
BY ANY PARTY HERETO IF THE EFFECTIVE TIME SHALL NOT HAVE OCCURRED
ON OR BEFORE MARCH 31, 2006 PROVIDED THAT THE RIGHT TO TERMINATE THIS AGREEMENT
PURSUANT TO THIS CLAUSE (B) SHALL NOT BE AVAILABLE TO ANY PARTY WHOSE FAILURE TO
PERFORM ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT REQUIRED TO BE PERFORMED BY
IT AT OR PRIOR TO SUCH DATE HAS BEEN A CAUSE OF, OR CONTRIBUTED TO, THE FAILURE
OF THE MERGER TO HAVE BECOME EFFECTIVE ON OR BEFORE SUCH DATE;
(C)
BY ANY PARTY HERETO IF (I) ANY COURT OF COMPETENT JURISDICTION OR
ANY OTHER GOVERNMENTAL AUTHORITY SHALL HAVE ISSUED AN ORDER RESTRAINING,
ENJOINING OR OTHERWISE PROHIBITING THE MERGER AND SUCH ORDER SHALL HAVE BECOME
FINAL AND NONAPPEALABLE, PROVIDED THAT, IF THE PARTY SEEKING TO TERMINATE THIS
AGREEMENT PURSUANT TO THIS SECTION 8.1(C)(I) IS A PARTY TO THE APPLICABLE
PROCEEDING, SUCH PARTY SHALL HAVE USED ALL COMMERCIALLY REASONABLE EFFORTS TO
REMOVE SUCH ORDER; OR (II) THE REQUISITE APPROVAL IS NOT OBTAINED; PROVIDED,
THAT THE RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 8.1(C)(II)
SHALL NOT BE AVAILABLE TO THE COMPANY WHERE THE FAILURE TO OBTAIN THE REQUISITE
APPROVAL SHALL HAVE BEEN CAUSED BY THE ACTION OR FAILURE TO ACT BY THE COMPANY
AND SUCH ACTION OR FAILURE TO ACT CONSTITUTES A BREACH BY THE COMPANY OF SECTION
6.11 IN ANY RESPECT OR A MATERIAL BREACH BY THE COMPANY OF ANY OF THE OTHER
COVENANTS OR AGREEMENTS CONTAINED IN THIS AGREEMENT;
(D)
BY THE COMPANY IF (I) EITHER FOREST OR SPINCO SHALL HAVE FAILED TO
PERFORM IN ANY MATERIAL RESPECT ANY OF ITS RESPECTIVE COVENANTS AND AGREEMENTS
CONTAINED IN THIS AGREEMENT REQUIRED TO BE PERFORMED AT OR PRIOR TO THE
EFFECTIVE TIME, OR (II) THE RESPECTIVE REPRESENTATIONS AND WARRANTIES OF FOREST
OR SPINCO CONTAINED IN THIS AGREEMENT ARE OR SHALL BECOME UNTRUE (WITHOUT GIVING
EFFECT TO ANY MATERIALITY QUALIFICATION OR STANDARD CONTAINED IN ANY SUCH
REPRESENTATIONS AND WARRANTIES) IN ANY RESPECT AT ANY TIME PRIOR TO THE
EFFECTIVE TIME (EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES ADDRESS
MATTERS AS OF A PARTICULAR DATE), EXCEPT WHERE THE FAILURE