JUNE 24, 2004.
(E)
BY SELLER OR PURCHASER, IN WRITING, IF THE
CLOSING HAS NOT OCCURRED ON OR BEFORE SEPTEMBER 30, 2004; PROVIDED, THAT THE
RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS SECTION 7.01(E) SHALL NOT BE
AVAILABLE TO ANY PARTY WHOSE FAILURE, OR WHOSE AFFILIATE'S FAILURE, TO FULFILL
ANY OBLIGATION UNDER THIS AGREEMENT SHALL HAVE BEEN THE CAUSE OF, OR SHALL HAVE
RESULTED IN, THE FAILURE OF SUCH CONDITIONS TO HAVE BEEN COMPLIED WITH,
PERFORMED OR SATISFIED PRIOR TO SUCH DATE; AND PROVIDED, FURTHER, THAT SUCH DATE
MAY BE EXTENDED, IN THE SOLE DISCRETION OF EITHER SELLER OR PURCHASER, TO
NOVEMBER 1, 2004, IF THE SOLE CONDITION TO CLOSING THAT IS NOT YET CAPABLE OF
BEING SATISFIED IS THE APPROVAL OF ANY STATE INSURANCE REGULATORY BODY;
(F)
BY PURCHASER OR SELLER, IN WRITING, IF
THERE SHALL BE ANY ORDER WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENT
ENTITY BINDING ON ARCH PARENT, SELLER OR PURCHASER WHICH PROHIBITS OR RESTRAINS
ARCH PARENT, SELLER OR PURCHASER FROM CONSUMMATING THE TRANSACTIONS CONTEMPLATED
HEREBY; PROVIDED, HOWEVER, THAT THE PARTY SEEKING TERMINATION UNDER THIS
SECTION 7.01(F) SHALL HAVE USED ITS REASONABLE BEST EFFORTS, AND ITS APPLICABLE
AFFILIATES SHALL HAVE USED THEIR REASONABLE BEST EFFORTS, TO HAVE ANY SUCH
ORDER, WRIT, INJUNCTION OR DECREE LIFTED; AND
(G)
BY ARCH PARENT OR SELLER AT ANY TIME ON OR
PRIOR TO THE DUE DILIGENCE END DATE, IF ARCH PARENT OR SELLER HAS A REASONABLE
BASIS TO BELIEVE THAT PURCHASER IS SEEKING TO MATERIALLY MODIFY THE AGREEMENT
AND EITHER ARCH PARENT OR SELLER HAS NOT OBTAINED THE APPROVAL OF ITS RESPECTIVE
BOARD OF DIRECTORS FOR SUCH MODIFIED AGREEMENT.
SECTION 7.02
IF THIS AGREEMENT IS TERMINATED IN ACCORDANCE
WITH SECTION 7.01 HEREOF, THIS AGREEMENT SHALL BECOME NULL AND VOID AND HAVE NO
FURTHER FORCE AND EFFECT, AND NO PARTY HERETO SHALL HAVE ANY LIABILITY TO ANY
OTHER PARTY HERETO OR ITS RESPECTIVE SHAREHOLDERS, MEMBERS OR DIRECTORS,
OFFICERS, MANAGERS OR OTHER AFFILIATES IN RESPECT THEREOF, EXCEPT THAT THE
OBLIGATIONS SET FORTH IN THE CONFIDENTIALITY AGREEMENT, DATED AS OF MARCH 31,
2004 (THE "CONFIDENTIALITY AGREEMENT"), EXECUTED BY AIIHC AND WAND PARTNERS,
INC., AN AFFILIATE OF PURCHASER, AND IN ARTICLE X HEREOF SHALL SURVIVE ANY SUCH
TERMINATION; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM
LIABILITY FOR THE BREACH OF THIS AGREEMENT.
38
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
The obligations of Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment of each of the following
conditions, except to the extent any such conditions are expressly waived in
writing by Purchaser at or prior to the Closing.
SECTION 8.01
ACCURACY OF REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES MADE BY ARCH PARENT AND SELLER IN THIS AGREEMENT
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS (EXCEPT THAT REPRESENTATIONS
AND WARRANTIES QUALIFIED BY MATERIALITY OR MATERIAL ADVERSE EFFECT SHALL BE TRUE
AND CORRECT IN ALL RESPECTS) ON AND AS OF THE DATE OF THIS AGREEMENT AND (EXCEPT
TO THE