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This excerpt taken from the WEN 8-K filed Dec 21, 2007. TERMINATION OF AGREEMENT 10.1 Termination. This Agreement may not be terminated prior to the Closing, except as follows: (a) by mutual agreement of the Buyer and the Company; (b) at the election of the Buyer or the Company upon prior written notice, if any one or more of the conditions set forth in Article VII or Article VIII respectively (other than those that by their nature are to be satisfied at the Closing) has 72 not been fulfilled as of the close of business on the date that is December 31, 2007 (the “Outside Date”); provided, however, that the party whose conduct substantially results in the failure of such condition to be fulfilled may not be the terminating party; (c) at the election of the Buyer or the Company upon prior written notice, if any court of competent jurisdiction or other Governmental Authority shall have issued a final Order or taken any other final action restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby and such Order or other action is or shall have become non-appealable; or (d) at the election of the Company or the Buyer, upon prior written notice, if there has been an inaccuracy in or breach of any representation or warranty, or breach of any covenant or agreement, made by the Buyer or Buyer Sub, on the one hand, or the Company, on the other hand, contained in this Agreement, which inaccuracy or breach (i) would give rise to a failure of a condition set forth in Articles VII or VIII, as applicable, and (ii) has not been cured by the party in breach prior to the Outside Date; provided, however, that no party that is then in material breach of this Agreement may terminate this Agreement pursuant to this Section 10.1(d) . 10.2 Survival After Termination. If this Agreement terminates pursuant to Section 10.1 and the transactions contemplated hereby are not consummated, (a) this Agreement shall become null and void and have no further force or effect, except that any such termination shall be without prejudice to the rights of any party on account of the intentional or willful breach or violation of the representations, warranties, covenants or agreements of another party under this Agreement; (b) notwithstanding anything in this Agreement to the contrary, the provisions of Section 6.3 (only to the extent such provisions by their terms survive the Closing), this Section 10.2 and Sections 11.7 through 11.22 shall survive any termination of this Agreement; and (c) the Buyer shall promptly return to the Company all books and records and all other information furnished by or on behalf of the Company, its agents, employees or representatives (including all copies, if any) and shall not use or disclose the information contained in such books and records for any purpose or make such information available to any other Person. |
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