FLEX » Topics » TERMINATION

This excerpt taken from the FLEX 8-K filed Apr 19, 2006.

TERMINATION

8.1 Termination. This Agreement may be terminated at any time prior to the Closing:

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

(b) by the Purchaser, by written notice delivered to the Seller if (i) there is a material breach of the representations and warranties made by the Seller in Article 3 hereof or (ii) there is a material breach of any covenant or obligation of the Seller Parties under this Agreement and such breach has not been cured within thirty (30) Business Days after written notice of such breach is given to the Seller, and notwithstanding that the Purchaser may have breached the representations and warranties in Article 4 hereof or any covenant or obligation of the Purchaser under this Agreement;

(c) by the Seller, by written notice delivered to the Purchaser if (i) there is a material breach of the representations and warranties made by the Purchaser in Article 4 hereof or (ii) there is a material breach of any covenant or obligation of the Purchaser under this Agreement and such breach has not been cured within thirty (30) Business Days after written notice of such breach is given to the Purchaser, and notwithstanding that the Seller may have breached the representations and warranties in Article 3 hereof or any covenant or obligation of the Seller under this Agreement; or

(d) by either the Seller or the Purchaser, by written notice delivered to the other, if the Closing has not occurred on or prior to the following date, as applicable (the “Termination Date”): (i) July 31, 2006 or (ii) if the Closing has not occurred on or prior to July 31, 2006 solely

 

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because a condition set forth in Section 7.1(a) or 7.1(b) hereof has not been satisfied, September 30, 2006; provided, however, that neither the Purchaser nor the Seller shall be entitled to terminate this Agreement pursuant to this Section 8.1(d) if it has breached any provisions of this Agreement and such breach results in a failure to satisfy the conditions set forth in Article 7 hereof or otherwise has prevented the consummation of the transactions contemplated hereby on or prior to the applicable Termination Date.

The party desiring to terminate this Agreement pursuant to Sections 8.1(b) through 8.1(d) shall give written notice of such termination to the other party in accordance with Section 11.5 hereof, specifying the provision hereof pursuant to which such termination is effected.

8.2 Effect of Termination. If this Agreement is terminated pursuant to Section 8.1 hereof, this Agreement will forthwith become null and void and shall be of no further force or effect, with no liability on the part of any Party, except that this Section 8.2 and each of Section 6.5, Section 6.6 and Article 11 hereof shall survive any such termination and no termination of this Agreement will relieve any Party from liability for any breach of this Agreement occurring prior to such termination, or for the breach of any provision hereof that expressly survives the termination of this Agreement. Purchaser agrees that, if the Seller shall terminate this Agreement pursuant to Section 8.1(c), or if this Agreement is terminated pursuant to Section 8.1(b) hereof and at the time of such termination either (i) the Seller was entitled to terminate this Agreement pursuant to Section 8.1(c) hereof or (ii) Purchaser was in material breach of its representations and warranties or covenants or obligations under this Agreement, which breach was not reasonably capable of being cured within thirty (30) days, then Purchaser shall pay to Seller a fee of US$32,215,000 (the “Termination Fee”) in immediately available funds no later than two (2) business days after such termination by the Seller. Notwithstanding anything to the contrary in this Agreement, Seller’s right to receive payment of the Termination Fee pursuant to this Section 8.2 or the guarantee thereof pursuant to the Guarantee shall be the sole and exclusive remedy of the Seller and its Affiliates against the Purchaser, the Guarantor or any of their respective Affiliates, stockholders, partners, members, directors, officers or agents for any loss or damage suffered as a result of the breach of any representation, warranty or covenant or agreement contained in this Agreement by Purchaser and the failure of the transactions contemplated herein to be consummated, and upon payment of the Termination Fee in accordance with this Section 8.2, none of the Purchaser or the Guarantor or any of their respective Affiliates, stockholders, partners, members, directors, officers or agents, as the case may be, shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement; provided, however; that following such termination, Purchaser will remain responsible for any breach of Section 6.5 and Section 6.6 of this Agreement. This Section 8.2 shall not affect the rights and remedies of the Parties following the Closing.

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