AIR » Topics » ARTICLE IX TERMINATION

This excerpt taken from the AIR 8-K filed Feb 29, 2008.

ARTICLE IX
TERMINATION

 

SECTION 9.1                                                                          Termination.  Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the transactions contemplated herein may be abandoned at any time prior to the Closing Date:

 

(a)                                  by the mutual written consent of Seller and Purchaser;

 

(b)                                 by either Seller or Purchaser:

 

(i)                                     if the Closing shall not have occurred on or prior to March 31, 2008 (provided, however, that the right to terminate this Agreement under this Section 9.1(b)(i) shall not be available (A) to Seller, if the failure by Seller or either Company to comply with any of their respective obligations hereunder has been the cause of, or resulted in, the failure of the Closing to occur on or before such date, and (B) to Purchaser, if the failure by Purchaser to comply with any of its obligations hereunder has been the cause of, or resulted in, the failure of the Closing to occur on or before such date); or

 

(ii)                                  if any Governmental Entity shall have issued an order, decree or ruling or taken any other action (which order, decree, ruling or other action the Parties shall use commercially reasonable efforts to lift), in each case permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and non-appealable;

 

(c)                                  by Seller if (i) Purchaser breaches or fails to perform or comply with any of its material covenants or agreements contained herein, or breaches any of the representations and warranties made by Purchaser in any material respect, (ii) Seller has notified Purchaser in writing of the breach, and (iii) the breach is incapable of being cured or has continued without cure for a period of ten (10) days after the notice of breach; or

 

(d)                                 by Purchaser if (i) Seller or either Company breaches or fails to perform or comply with any of its material covenants or agreements contained herein, or breaches any of the representations and warranties made by Seller or such Company in any material respect, (ii) Purchaser has notified such Company and Seller in writing of the breach and (iii) the breach is incapable of being cured or has continued without cure for a period of ten (10) days after the notice of breach;

 

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provided, however, that the Party seeking termination pursuant to clause (c) or (d) (and, in the case of clause (c), each Company) is not in breach in any material respect of any of its material representations, warranties, covenants or agreements contained in this Agreement.

 

SECTION 9.2                                                                          Procedure and Effect of Termination.

 

(a)                                  In the event of the termination and abandonment of this Agreement by Seller or Purchaser pursuant to Section 9.1 hereof, written notice thereof shall forthwith be given to the other Parties specifying the provision hereof pursuant to which such termination is made.  If the transactions contemplated by this Agreement are terminated as provided herein:

 

(i)                                     each Party shall redeliver all documents, work papers and other material of any other Party relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to the Party furnishing the same; and

 

(ii)                                  all confidential information received by any Party with respect to the business of any other Party or its affiliates shall be treated in accordance with the provisions of the Confidentiality Agreement, which shall survive the termination of this Agreement.

 

(b)                                 If this Agreement is terminated and the transactions contemplated hereby are abandoned as described in this Section 9.2, this Agreement shall become void and of no further force or effect, except for the provisions of Sections 10.5 — 10.17 and this Section 9.2.  Nothing in this Section 9.2 shall be deemed to release any Party from any liability for any breach by such Party of the terms and provisions of this Agreement prior to termination.

 

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