BMY » Topics » Termination

This excerpt taken from the BMY 8-K filed May 7, 2008.

Termination

SECTION 11.01. Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing by:

(a) mutual written consent of Seller and Purchaser;

(b) Purchaser, if Audited 2007 EBITDA is less than Unaudited 2007 EBITDA by more than $10,000,000;

(c) Seller, if any of the conditions set forth in Section 3.02 shall have become incapable of fulfillment, and shall not have been waived by Seller;

(d) Purchaser, if any of the conditions set forth in Section 3.01 shall have become incapable of fulfillment, and shall not have been waived by Purchaser; or

(e) either party hereto, if the Closing does not occur on or prior to August 30, 2008 (the “Termination Date”); provided, however, that if as of such date the only conditions to the Closing which have not been satisfied or waived are the conditions to Closing set forth in Sections 3.01(c) and 3.02(c), then Purchaser shall not be permitted to terminate this Agreement pursuant to this Section 11.01(e) until December 28, 2008; provided further, however, that to the extent all the conditions to Closing have been; satisfied except that Seller has failed to deliver the Audited 2007 Financial Statements on or prior to such date, Purchaser shall have the right, but not the obligation, to elect in writing (the “Extension Election”) to extend such date to no earlier than September 29, 2008 and no later than December 28, 2008 (such date, the “Extended Termination Date”), in which case neither Seller nor Purchaser shall be permitted to terminate this Agreement pursuant to this 11.01(e) until the Extended Termination Date;

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

SECTION 11.02. Return of Confidential Information. If the transactions contemplated by this Agreement are terminated as provided herein:

(a) notwithstanding anything in the Confidentiality Agreement to the contrary, Purchaser shall return to Seller or destroy all documents and other material received by Purchaser, its Affiliates and their respective Representatives from Seller, any Selling Affiliate or any of their respective Affiliates, any Transferred Entity or Representatives relating to the transactions contemplated hereby and by the Other Transaction Documents, whether so obtained before or after the execution hereof; and

(b) all confidential information received by Purchaser, its Affiliates and their respective Representatives with respect to Seller, any Selling Affiliate, the Transferred Entities or any of their respective Affiliates, the Business, the Acquired Assets and the

 

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Assumed Liabilities shall be treated in accordance with the Confidentiality Agreement, which shall remain in full force and effect in accordance with its terms notwithstanding the termination of this Agreement.

SECTION 11.03. Consequences of Termination. (a) In the event of termination by Seller or Purchaser pursuant to this Article XI, written notice thereof shall forthwith be given to the other party and the transactions contemplated by this Agreement shall be terminated, without further action by either party. If this Agreement is terminated and the transactions contemplated hereby are abandoned as described in this Article XI, this Agreement shall become void and of no further force or effect, except for the provisions of (a) Section 7.01 relating to the obligation of Purchaser to keep confidential certain information and data obtained by it, (b) Section 8.03 relating to publicity, (c) this Article XI, (d) Section 12.03 relating to certain expenses, (e) Section 12.04 relating to attorney fees and expenses, (f) Section 12.10 relating to finder’s fees and broker’s fees and (g) the last sentence of Section 5.09. Nothing in this Article XI shall be deemed to release either party from any liability for any intentional and material breach by such party of the terms and provisions of this Agreement prior to such termination or to impair the right of either party to compel specific performance by the other party of its obligations under this Agreement.

(b) If (i) Seller has failed to deliver the Audited 2007 Financial Statements on or prior to the Termination Date, or to the extent Purchaser has made an Extension Election, the Extended Termination Date and Purchaser thereafter terminates this Agreement pursuant to Section 11.01(e) or (ii) Purchaser terminates this Agreement pursuant to Section 11.01(b), then in either such case Seller shall reimburse Purchaser for all fees in connection with the Financing and otherwise for all reasonable out-of-pocket costs and expenses incurred by Purchaser and the Equity Funds in connection with this Agreement and the transactions contemplated hereby up to an amount not to exceed $30,000,000.

ARTICLE XII

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