CBST » Topics » 12.2 Termination

These excerpts taken from the CBST 10-K filed Feb 29, 2008.

ARTICLE 10
TERMINATION

        10.1    Termination.    This Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time (whether before or after approval of the Merger by the shareholders of the Company or by Parent as sole stockholder of Merger Sub) only as follows:

            (a)   at any time by mutual written agreement of Parent, Merger Sub and the Company;

            (b)   by the Company, upon written notice to Parent and Merger Sub if there has been a material breach by Parent or Merger Sub of any representation, warranty, covenant or agreement set forth in this Agreement and such material breach is not curable, or, if curable, is not cured within thirty (30) days after written notice of such breach is given by the Company to Parent and Merger Sub;

            (c)   by Parent, upon written notice to the Company and the Holders Representative if there has been a material breach by the Company of any representation, warranty, covenant or agreement set forth in this Agreement and such material breach is not curable, or, if curable, is not cured within thirty (30) days after written notice of such breach is given by Parent to the Company and the Holders Representative;

            (d)   by Parent, if Company or any of its directors or officers shall participate in discussions or negotiations in breach of, or otherwise breach, Section 7.24;

            (e)   by Parent if the Company Board or any committee thereof makes an Adverse Recommendation;

            (f)    by the Company or Parent, upon written notice to the other parties to this Agreement if a court of competent jurisdiction or Governmental Authority have issued a non-appealable final and permanent injunction, or other binding legal restraint or prohibition, having the effect of permanently preventing the consummation of the Merger or the other transactions contemplated hereby;

            (g)   by the Company or Parent, upon written notice to the other parties to this Agreement if the Merger has not been consummated on or before the thirtieth (30th) day following the date of this Agreement or on or before any later date that the Company and Parent shall mutually determine (such thirtieth (30th) day following the date of this Agreement or such later date, as the case may be, being referred to herein as the "Outside Date"), provided, however, that the right to terminate this Agreement pursuant to this Section 10.1(g) shall not be available to any party whose material breach of a representation or warranty or failure to fulfill any covenant or other agreement under this Agreement has been the cause of, or resulted in the failure of, the Merger to occur on or before the Outside Date, and shall not be available to the Company if the Required Shareholder Approval has not been obtained prior to the Outside Date; or

            (h)   by the Company if (i) the Company has not breached Section 7.24, (ii) the Required Shareholder Approval has not been obtained and the Company has not breached any of its obligations under Section 6.4 and (iii) concurrently with such termination the Company enters into a definitive agreement with respect to a Superior Proposal.


*
Confidential Treatment Requested. Omitted portions filed with the Commission.

88


            (i)    by Parent if the Required Stockholder Approval is not obtained within one day following the Agreement Date.

        10.2    Effect of Termination.    If this Agreement is terminated pursuant to Section 10.1 hereof, then (a) the provisions of this Section 10.2, Section 10.3 and Article 11 shall survive any such termination, (b) such termination shall not relieve any party hereto from liability arising from any breach by such party of any provision of this Agreement if such breach occurred prior to such termination, (c) each party will redeliver all documents, work papers and other material of the other party or parties relating to the transactions contemplated hereby including such memoranda, notes, lists, records or other documents compiled or derived from such material, whether so obtained before or after the execution hereof, to the party furnishing the same and (d) all information received by any party hereto with respect to the business of the other parties or their affiliated companies shall remain subject to the terms of the Confidentiality Agreement.

        10.3    Costs and Expenses.    

            (a)   If (i) this Agreement is validly terminated pursuant to Section 10.1(h) hereof, and (ii) neither Parent nor Merger Sub shall have materially breached any of their representations, warranties or covenants under this Agreement, then the Company shall pay to Parent, in cash, a fee in the amount equal to the sum of (x) one million five hundred thousand dollars ($1,500,000) plus all costs and expenses incurred by Parent and Merger Sub in connection with the transactions contemplated by this Agreement. Any fee due under this Section 10.3(a) shall be paid by wire transfer of same-day funds on the date of termination of this Agreement.

            (b)   Except as otherwise provided in this Agreement and whether or not the transactions contemplated by this Agreement are consummated, all costs and expenses incurred in connection with the transactions contemplated by this Agreement shall be borne by the party incurring such expenses. The fees and expenses of the Escrow Agent shall be borne and paid by Parent. Parent acknowledges and agrees that Company has disclosed that it is obligated and will become further obligated for Transaction Expenses incurred by the Company in connection with the Merger and the transactions contemplated hereby (including fees and expenses of its legal counsel and other advisors). It is understood and agreed that all of such Transactions Expenses (including amounts reasonably expected to be incurred through the Closing Date and thereafter for post-Closing services related to the Merger) shall to the extent practicable be paid and pre-paid by the Company prior to the Closing, but that all Transaction Expenses (including estimated prepayments) not paid by the Company prior to Closing shall be paid by Parent at the Closing, provided that all of such Transaction Expenses shall have been disclosed to Parent prior to Closing and shall be deducted from the Closing Consideration as a Closing Liability pursuant to the definition of "Closing Consideration" set forth herein.


*
Confidential Treatment Requested. Omitted portions filed with the Commission.

89


ARTICLE 10

TERMINATION



        10.1SIZE=2>    Termination.    This Agreement may be terminated and the Merger abandoned at any time prior to the Effective
Time (whether before or after approval of the Merger by the shareholders of the Company or by Parent as sole stockholder of Merger Sub) only as follows:





            (a)   at
    any time by mutual written agreement of Parent, Merger Sub and the Company;



            (b)   by
    the Company, upon written notice to Parent and Merger Sub if there has been a material breach by Parent or Merger Sub of any representation, warranty, covenant or
    agreement set forth in this Agreement and such material breach is not curable, or, if curable, is not cured within thirty (30) days after written notice of such breach is given by the Company
    to Parent and Merger Sub;



            (c)   by
    Parent, upon written notice to the Company and the Holders Representative if there has been a material breach by the Company of any representation, warranty, covenant
    or agreement set forth in this Agreement and such material breach is not curable, or, if curable, is not cured within thirty (30) days after written notice of such breach is given by Parent to
    the Company and the Holders Representative;



            (d)   by
    Parent, if Company or any of its directors or officers shall participate in discussions or negotiations in breach of, or otherwise breach, Section 7.24;




            (e)   by
    Parent if the Company Board or any committee thereof makes an Adverse Recommendation;



            (f)    by
    the Company or Parent, upon written notice to the other parties to this Agreement if a court of competent jurisdiction or Governmental Authority have issued a
    non-appealable final and permanent injunction, or other binding legal restraint or prohibition, having the effect of permanently preventing the consummation of the Merger or the other
    transactions contemplated hereby;



            (g)   by
    the Company or Parent, upon written notice to the other parties to this Agreement if the Merger has not been consummated on or before the thirtieth (30th) day
    following the date of this Agreement or on or before any later date that the Company and Parent shall mutually determine (such thirtieth (30th) day following the date of this Agreement or such later
    date, as the case may be, being referred to herein as the "
    Outside Date"), provided, however, that the right
    to terminate this Agreement pursuant to this Section 10.1(g) shall not be available to any party whose material breach of
    a representation or warranty or failure to fulfill any covenant or other agreement under this Agreement has been the cause of, or resulted in the failure of, the Merger to occur on or before the
    Outside Date, and shall not be available to the Company if the Required Shareholder Approval has not been obtained prior to the Outside Date; or




            (h)   by
    the Company if (i) the Company has not breached Section 7.24, (ii) the Required Shareholder Approval has not been obtained and the Company has
    not breached any of its obligations under Section 6.4 and (iii) concurrently with such termination the Company enters into a definitive agreement with respect to a Superior Proposal.







*
Confidential
Treatment Requested. Omitted portions filed with the Commission.

88










            (i)    by
    Parent if the Required Stockholder Approval is not obtained within one day following the Agreement Date.





        10.2SIZE=2>    Effect of Termination.    If this Agreement is terminated pursuant to Section 10.1 hereof, then
(a) the provisions of this Section 10.2, Section 10.3 and Article 11 shall survive any such termination, (b) such termination shall not relieve any party hereto from
liability arising from any breach by such party of any provision of this Agreement if such breach occurred prior to such termination, (c) each party will redeliver all documents, work papers
and other material of the other party or parties relating to the transactions contemplated hereby including such memoranda, notes, lists, records or other documents compiled or derived from such
material, whether so obtained before or after the execution hereof, to the party furnishing the same and (d) all information received by any party hereto with respect to the business of the
other parties or their affiliated companies shall remain subject to the terms of the Confidentiality Agreement.



        10.3SIZE=2>    Costs and Expenses.    





            (a)   If
    (i) this Agreement is validly terminated pursuant to Section 10.1(h) hereof, and (ii) neither Parent nor Merger Sub shall have materially
    breached any of their representations, warranties or covenants under this Agreement, then the Company shall pay to Parent, in cash, a fee in the amount equal to the sum of (x) one million five
    hundred thousand dollars ($1,500,000)
    plus all costs and expenses incurred by Parent and Merger Sub in connection with the transactions contemplated by
    this Agreement. Any fee due under this Section 10.3(a) shall be paid by wire transfer of same-day funds on the date of termination of this Agreement.



            (b)   Except
    as otherwise provided in this Agreement and whether or not the transactions contemplated by this Agreement are consummated, all costs and expenses incurred in
    connection with the transactions contemplated by this Agreement shall be borne by the party incurring such expenses. The fees and expenses of the Escrow Agent shall be borne and paid by Parent. Parent
    acknowledges and agrees that Company has disclosed that it is obligated and will become further obligated for Transaction Expenses incurred by the Company in connection with the Merger and the
    transactions contemplated hereby (including fees and expenses of its legal counsel and other advisors). It is understood and agreed that all of such Transactions Expenses (including amounts reasonably
    expected to be incurred through the Closing Date and thereafter for post-Closing services related to the Merger) shall to the extent practicable be paid and pre-paid by the
    Company prior to the Closing, but that all Transaction Expenses (including estimated prepayments) not paid by the Company prior to Closing shall be paid by Parent at the Closing,
    provided that all of
    such Transaction Expenses shall have been disclosed to Parent prior to Closing and shall be deducted from the Closing Consideration
    as a Closing Liability pursuant to the definition of "Closing Consideration" set forth herein.







*
Confidential
Treatment Requested. Omitted portions filed with the Commission.

89








This excerpt taken from the CBST 10-Q filed Nov 4, 2005.

12.2        Termination

 

(a)

 

Either party may terminate this Agreement at any time:

 

 

 

 

 

 

 

(i)

 

upon ninety (90) days written notice to the other party in the event that the other party shall have breached any of its material obligations hereunder and shall not have cured such default prior to the expiration of the ninety (90) day period; or

 

 

 

 

 

 

 

(ii)

 

upon written notice to the other party in the event that any bankruptcy, insolvency or receivership proceeding or the like (including out-of-court arrangements involving a party that cannot pay its debts as they mature) is commenced by or against the other party unless, in the case of an involuntary proceeding, it is dismissed within sixty (60) days;

 

 

 

 

 

(b)

 

Cubist may terminate this Agreement with notice to ACSD

 

 

 

 

 

 

 

(i)

 

in the event that ACSD fails to achieve its obligations under Section 2.1 within 180 (one hundred and eighty) days of the Facility Completion Target Date or

 

 

 

 

 

 

 

(ii)

 

in the event that Facility Approval is not received within one hundred and eighty (180) days of the Facility Approval Target Date due to ACSD failure by to meet its obligations under this Agreement.

 


*Confidential Treatment Requested. Omitted portions filed with the Commission.

 

 

17



 

Prior to Cubist terminating this Agreement under this Paragraph 12.2(b), but no later than one hundred and eighty days from the applicable Target Date, ACSD will be given reasonable opportunity to present to Cubist a plan of corrective action. If Cubist and ACSD mutually agree on the plan in writing, ACSD will be provided an additional period of time, specified and agreed to in writing by both parties, to remedy the delay in meeting its obligations;

 

(c)

 

Cubist may terminate this Agreement upon one hundred and eighty (180) days notice to ACSD if Cubist or an affiliate or sublicensee terminates the manufacture or sale of the Product;

 

 

 

(d)

 

Cubist may terminate this Agreement in the event that the FDA does not approve the Product within a commercially reasonable timeframe;

 

 

 

(e)

 

The parties may also terminate this Agreement at any time with one hundred and eighty (180) days notice upon mutual written agreement between Cubist and ACSD.

 

Wikinvest © 2006, 2007, 2008, 2009, 2010, 2011, 2012. Use of this site is subject to express Terms of Service, Privacy Policy, and Disclaimer. By continuing past this page, you agree to abide by these terms. Any information provided by Wikinvest, including but not limited to company data, competitors, business analysis, market share, sales revenues and other operating metrics, earnings call analysis, conference call transcripts, industry information, or price targets should not be construed as research, trading tips or recommendations, or investment advice and is provided with no warrants as to its accuracy. Stock market data, including US and International equity symbols, stock quotes, share prices, earnings ratios, and other fundamental data is provided by data partners. Stock market quotes delayed at least 15 minutes for NASDAQ, 20 mins for NYSE and AMEX. Market data by Xignite. See data providers for more details. Company names, products, services and branding cited herein may be trademarks or registered trademarks of their respective owners. The use of trademarks or service marks of another is not a representation that the other is affiliated with, sponsors, is sponsored by, endorses, or is endorsed by Wikinvest.
Powered by MediaWiki