February 15, 2020

Termination Provisions

Termination Provisions: conditions under which the parties may walk away from the agreement

Actavis/Forest Labs. (FTC 2014) | Actavis/Warner Chilcott (FTC 2013) | Albertsons/Safeway (FTC 2014) | American Airlines/U.S. Airways (DOJ 2013) | Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13) | Anheuser-Busch Inbev/SabMiller (TBA 2015)AT&T/DirecTV (DOJ 2014) | Comcast/Time Warner (DOJ 2014) | ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014) | Dollar Tree/Family Dollar (FTC 2014-2015)Express Scripts/Medco (FTC 2011-12)  | Gannett Co./Belo Corp. (DOJ 2013) | Jos A. Bank/Men’s Warehouse (FTC 2014) | Kroger/Harris Teeter (FTC 2014) | Medtronic/Covidien (FTC 2014)Mylan/Agila Specialties (FTC 2013) | National CineMedia/Screenvision (DOJ 2014-2015)Nielsen Holdings/Arbitron (FTC 2012-14) | Office Depot/OfficeMax (FTC 2013)  | Pinnacle Entertainment/Ameristar Casinos (FTC 2013) | Sysco/US Foods (FTC 2014) | Tyson Foods/Hillshire Brands (TBD 2014) | Verso Paper/Newpage Holdings (DOJ 2014-2015)Western Digital/Hitachi (FTC 2012) | Zillow/Trulia (FTC 2014-2015) 


Actavis/Forest Laboratories (FTC 2014)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §8.1(c)

by either Parent or the Company, if the First Effective Time shall not have occurred by midnight, Eastern Time, on August 17 , 2014 (the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 8.1(c) shall not be available to any Party whose breach of any representation, warranty, covenant or agreement set forth in this Agreement has been the cause of, or resulted in, the First Effective Time not occurring prior to the Outside Date; provided, further, that if on the Outside Date the condition set forth in Section 7.1(d) and/or the condition set forth in Section 7.1(c) (if the applicable Adverse Law or Order is an order or injunction of a court of competent jurisdiction under an Antitrust Law) has not been satisfied but all other conditions to the Closing set forth in Article VII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, which conditions shall be capable of being satisfied), either Parent or the Company may, by written notice delivered to such other Party prior to August 17, 2014, extend the Outside Date by an additional three (3) months until November 17, 2014, which extended date shall thereafter be considered the Outside Date; provided, further, that if on the Outside Date as extended pursuant to the preceding proviso the condition set forth in Section 7.1(d) and/or the condition set forth in Section 7.1(c) (if the applicable Adverse Law or Order is an order or injunction of a court of competent jurisdiction under an Antitrust Law) has not been satisfied but all other conditions to the Closing set forth in Article VII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, which conditions shall be capable of being satisfied), either Parent or the Company may, by written notice delivered to such other Party prior to November 17 , 2014, extend the Outside Date by an additional one (1) month until December 17, 2014, which extended date shall thereafter be considered the Outside Date;

Actavis/Warner Chilcott (FTC 2013)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 9.1(a): This Agreement may be terminated at any time prior to the Effective Time . . . (ii) by either Warner Chilcott or Actavis if the Effective Time shall not have occurred by 11:59 p.m., New York City time, on the End Date, provided that the right to terminate this Agreement pursuant to this Clause 9.1(a)(ii) shall not be available to a Party whose breach of any provision of this Agreement shall have caused the failure of the Effective Time to have occurred by such time; [End Date defined in Definitions (§ 1.1) as: “End Date”, the date that is nine months after the date of this Agreement; provided, that if as of such date all Conditions (other than Conditions 2(c), 2(d), 3(c), 3(d) and 3(e)) have been satisfied (or, in the sole discretion of the applicable Party, waived (where applicable)) or would be satisfied (or, in the sole discretion of the applicable Party, waived (where applicable)) if the Acquisition were completed on such date, the “ End Date” shall be the date that is one year after the date of this Agreement;] (iii) by either Warner Chilcott or Actavis if the High Court declines or refuses to sanction the Scheme, unless both Parties agree that the decision of the High Court shall be appealed; (iv) by either Warner Chilcott or Actavis if an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Acquisition or the Merger and such injunction shall have become final and non-appealable, provided that the right to terminate this Agreement pursuant to this Clause 9.1(a)(iv) shall not be available to a Party whose breach of any provision of this Agreement shall have caused such injunction;

Albertsons/Safeway (FTC 2014)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 5.9(e), 7.1

5.9(e) From and after the date hereof, the Company shall use commercially reasonable efforts to provide or cause to be provided to Ultimate Parent all assistance reasonably requested by Ultimate Parent in the preparation for the consummation of the transactions contemplated by the EDS APA, including the use of commercially reasonable efforts (i) to provide such information, financial or otherwise, with respect to the Eastern Division as Ultimate Parent may reasonably request, (ii) to assist in the preparation of disclosure schedules, exhibits and ancillary agreements contemplated in the EDS APA, (iii) to assist in transition planning with respect to the EDS Asset Purchase and (iv) to assist in obtaining approvals from Governmental Entities and consents and notices required to be obtained from or made to other Persons under the EDS APA. Notwithstanding anything in this Agreement to the contrary, the Company shall not be deemed to be in breach of, or to have failed to comply with, any of the covenants herein with respect to the EDS APA (including for purposes of determining whether there has been a failure of a condition precedent pursuant to Section 6.2(b)) so long as either (i) it has acted in good faith to comply with its requirements with respect to the EDS APA set forth herein or (ii) any such breach or failure is not the cause of the transactions contemplated by the EDS APA to not be consummated immediately following the Merger.

                        7.1       Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated, and the Merger contemplated hereby may be abandoned, at any time prior to the Effective Time, whether before or after the Company Stockholder Approval has been obtained (except as otherwise provided below): (a) By mutual written consent of Ultimate Parent and the Company; (b) By either the Company or Ultimate Parent by written notice to the other Party, (i) if the Merger shall not have been consummated on or prior to March 5, 2015 (the “Initial End Date”); provided, however, that (A) if (1) all of the conditions to Closing, other than the conditions set forth in Section 6.1(b) or Section 6.1(c), shall have been satisfied or shall be capable of being satisfied at the Initial End Date, (2) none of the Parent Entities is then in breach of any of its representations, warranties, covenants or agreements hereunder as though made on and as of the Initial End Date (except to the extent any such representation and warranty expressly speaks as of an earlier date, in which case as of such earlier date, provided that solely for these purposes the words “As of the date hereof” in the penultimate sentence of Section 4.10(a) shall be deemed to be replaced with “As of the Initial End Date”), (3) the Financing Extension Conditions are satisfied, and (4) the Equity Commitment Letters are in full force and effect and provide that they will remain in full force and effect in accordance with their respective terms through the Final End Date, then the Initial End Date may, in Ultimate Parent’s sole discretion, be extended to June 5, 2015 (the “Final End Date”) and (B) the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not have breached in any material respect its obligations under this Agreement in any manner that shall have caused or resulted in the failure to consummate the Merger on or before such date; (ii) if any court of competent jurisdiction shall have issued or entered an injunction or similar order permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such injunction shall have become final and non-appealable; provided, that the Party seeking to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall have used such efforts as required by Section 5.6 and Section 5.9 to prevent, oppose and remove such injunction or similar order; or (iii) if the Stockholders Meeting (including any adjournments or postponements thereof) shall have concluded (and the polls thereof shall have been closed) and the Company Stockholder Approval shall not have been obtained; (c) By Ultimate Parent by written notice to the Company, (i) if at any time prior to when the Company Stockholder Approval is obtained, (A) the Company Board shall have made a Company Adverse Recommendation Change or (B) the Company enters into an Alternative Acquisition Agreement; or (ii) if the Company breaches any of its representations or warranties or fails to perform any of its covenants or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2(a) or Section 6.2(b) and (B) is not curable, or if curable, is not cured prior to the earlier of (1) the 30th day after written notice thereof is given by Ultimate Parent to the Company or (2) the Initial End Date or, if the Initial End Date is extended pursuant to Section 7.1(b)(i), the Final End Date; provided, however, that Ultimate Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(c)(ii) if any of the Parent Entities is then in breach of any of its representations, warranties, covenants or agreements hereunder that would result in the closing conditions set forth in Section 6.3(a) or Section 6.3(b) not being satisfied; (d) By the Company by written notice to Ultimate Parent, (i) at any time prior to the time the Company Stockholder Approval is obtained, in order to concurrently enter into an Alternative Acquisition Agreement that constitutes a Superior Proposal, if (A) the Company Board, after satisfying all of the requirements set forth in Section 5.8, shall have authorized the Company to enter into such Alternative Acquisition Agreement and (B) the Company substantially concurrently with such termination pursuant to this Section 7.1(d)(i) enters into such Alternative Acquisition Agreement and pays to Ultimate Parent in immediately available funds any fees required to be paid pursuant to Section 7.2(b); provided, however, that the Company shall not be entitled to terminate this Agreement pursuant to this Section 7.1(d)(i) with respect to any Superior Proposal unless the Company has complied in all material respects with the requirements of Section 5.8 with respect to such Superior Proposal; (ii) if any of the Parent Entities breaches any of its representations or warranties or fails to perform any of its covenants or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.3(a) or Section 6.3(b) and (B) is not curable or, if curable, is not cured prior to the earlier of (a) the 30th day after written notice thereof is given by Ultimate Parent to the Company or (b) the Initial End Date or, if the Initial End Date is extended pursuant to Section 7.1(b)(i), the Final End Date; provided, however, that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.1(d)(ii) if the Company is then in breach of any of its representations, warranties, covenants or agreements hereunder that would result in the closing conditions set forth in Section 6.2(a) or Section 6.2(b) not being satisfied; or (iii) if at any time prior to the Closing and (if prior to the Initial End Date) after the expiration of the Marketing Period (A) all of the conditions set forth in Section 6.1 and Section 6.2 (other than conditions which by their nature are to be satisfied by actions taken at the Closing) have been satisfied or waived, and the Company has complied in all material respects with its obligations under Section 5.2, (B) the Company has irrevocably notified Ultimate Parent in writing that the Company is ready, willing and able to consummate the Closing, and (C) the Parent Entities fail to consummate the Closing and the transactions contemplated by this Agreement within five (5) Business Days following such notice (it being understood and agreed for the avoidance of doubt that in accordance with Section 7.1(b)(i)(B), Ultimate Parent shall not be entitled to terminate this Agreement pursuant to Section 7.1(b)(i) during such five (5) Business Day period).

American Airlines/US Airways (DOJ 2012)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 6.2: Termination by Either American or US Airways. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by duly authorized action of either American or US Airways if: (a) the Merger shall not have been consummated by October 14, 2013, whether such date is before or after receipt of the Stockholder Approval or the entry of the Confirmation Order, provided, that in the event that, (i) as of October 14, 2013, the condition set forth in Section 5.1(b) has not been satisfied (or waived), the termination date may be extended from time to time by American or US Airways one or more times to a date not beyond December 13, 2013; provided further that in the event that a party fails to certify compliance with any Second Request prior to the 60th day following the issuance of such Second Request, such termination date may be extended by the other party one or more times for an additional number of days beyond December 13, 2013 equal to the number of days that elapsed between such 60th day and the day on which the first party actually certifies compliance with such Second Request, or (ii) as of October 14, 2013, the condition set forth in either Section 5.2(e) or Section 5.3(e) has not been satisfied (or waived), the termination date may be extended from time to time by American or US Airways one or more times to a date not beyond December 13, 2013 (such date, including any such extensions thereof, the “Termination Date”); (b) the Stockholder Approval shall not have been obtained at the Stockholders Meeting or at any adjournment or postponement thereof at which the vote was taken; (c) twenty (20) days have elapsed after the Bankruptcy Court enters an order denying confirmation of the Plan; (d) the Merger Support Order shall not have been entered by the Bankruptcy Court on or prior to the date that is the ninetieth (90th) day following the date of this Agreement (provided that if this Agreement has become terminable pursuant to this Section 6.2(d) but has not been terminated, and the Bankruptcy Court enters the Merger Support Order, then this Agreement shall no longer be terminable pursuant to this Section 6.2(d)); or (e) any Order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable, except for Orders the existence of which would not result in the failure of the condition set forth in Section 5.1(c); provided, however, that the right to terminate this Agreement pursuant to this Section 6.2 shall not be available to any party that has breached its obligations under this Agreement in any manner that shall have been the principal contributing factor to the occurrence of the events giving rise to the right to terminate this Agreement.

Anheuser-Busch InBev/Grupo Modelo (DOJ 2012-13)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 10.01(b)-(c)

Termination. This Agreement may be terminated and the Offer may be abandoned at any time prior to the Settlement Date: . . .

                        (b) by the Company or ABI if the Merger has not been consummated on or before December 30, 2013 (as it may be extended, the “Termination Date”); provided, that if on the date of such written election (i) either of the conditions set forth in Section 8.01(a) or Section 8.01(b) has not been satisfied or (ii) litigation with any Governmental Authority that is challenging the consummation of the transactions contemplated hereby under Antitrust Laws has been commenced, then, at the written election of the Company or of ABI, the Termination Date may be extended by a period of 90 calendar days (and in the case of such extension, any reference to the Termination Date in any other provision of this Agreement shall be a reference to the Termination Date, as extended); provided, further, that the right to terminate this Agreement pursuant to this Section 10.01(b) shall not be available to any party whose breach of any provision of this Agreement results in the failure of the Merger to be consummated by the Termination Date;

                        (c) by the Company or ABI if there shall be any law or regulation enacted after the date hereof that makes consummation of the Merger or Offer illegal or by the Company or ABI if any judgment, injunction, order or decree of any Governmental Authority having competent jurisdiction enjoins the consummation of the Merger or Offer and such judgment, injunction, order or decree shall have become final and nonappealable;

Anheuser-Busch Inbev/SabMiller (TBA 2015)

Anheuser-Busch InBev/SabMiller (TBA 2015)

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 11.1: Subject to Clauses 11.2 and 11.3, this Agreement shall terminate with immediate effect and all rights and obligations of the parties under the Agreement shall cease forthwith, as follows:

                        (a) if agreed in writing between the parties;

                        . . . .

                        (c) upon service of written notice by either party to the other, following a Break Payment Event;

                        (d) upon service of written notice by AB InBev to SABMiller prior to the Long Stop Date stating that either: (i) any Pre-Condition or Condition which has not been waived is (or has become) considered by AB InBev incapable of satisfaction by the Long Stop Date and, notwithstanding that AB InBev has the right to waive such Pre-Condition or Condition, AB InBev will not do so; or (ii) any Pre-Condition or Condition which is incapable of waiver is considered by AB InBev incapable of satisfaction by the Long Stop Date, in each case in circumstances where the invocation of the relevant Pre-Condition or Condition (or confirmation that the Pre-Condition or Condition is incapable of satisfaction, as appropriate) is permitted by the Panel;

                        . . . .

                        (h) if Completion has not occurred by the Long Stop Date.

AT&T/DirecTV (DOJ 2014)

(g)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §8.1.


Termination by Mutual Consent.
This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after the adoption of this Agreement by the stockholders of the Company referred to in Section 7.1(a), by mutual written consent of the Company and Parent, by action of their respective Boards of Directors. 

                        §8.2. Termination by Either Parent or the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the Board of Directors of either Parent or the Company if (a) the Merger shall not have been consummated by May 18, 2015 (as it may be extended below, the “Termination Date”), whether such date is before or after the date of adoption of this Agreement by the stockholders of the Company referred to in Section 7.1(a);provided that, (i) if either the Company or Parent determines that additional time is necessary in connection with obtaining a Required Governmental Consent from the FCC or any PUC listed in Section 7.2(c) of the Parent Disclosure Letter and foreign Governmental Entities listed in Section 7.2(c) of the Company Disclosure Letter or in connection with the expiration of the waiting period pursuant to the HSR Act, the Termination Date may be extended by either Parent or the Company from time to time by written notice to the other up to a date not beyond August 17, 2015 and (ii) if the Termination Date has been extended to August 17, 2015, the Termination Date may be extended further by the mutual written agreement of Parent and the Company from time to time up to a date not beyond November 13, 2015, which date or dates pursuant to clauses (i) or (ii) of this Section 8.2, as extended from time to time, shall thereafter be deemed to be the Termination Date, (b) the adoption of this Agreement by the stockholders of the Company referred to in Section 7.1(a) shall not have occurred at a meeting duly convened therefor or at any adjournment or postponement thereof at which a vote upon the adoption of this Agreement was taken, (c) any Order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable, whether before or after the adoption of this Agreement by the stockholders of the Company referred to in Section 7.1(a), provided that the right to terminate this Agreement pursuant to this Section 8.2 shall not be available to any party that has breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the failure of the Merger to be consummated, or (d) the FCC adopts a hearing designation order in respect of the transactions contemplated by this Agreement.

                        §8.3. Termination by the Company. This Agreement may be terminated and the Merger may be abandoned (a) at any time prior to the Effective Time, whether before or after the adoption of this Agreement by the stockholders of the Company referred to in Section 7.1(a), by action of the Board of Directors of the Company if there has been a breach of any representation, warranty, covenant or agreement made by Parent or Merger Sub in this Agreement, or any such representation and warranty shall have become untrue after the date of this Agreement, such that Section 7.3(a) or 7.3(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured by the 30th day following notice to Parent from the Company of such breach or failure; provided, that the Company shall not have the right to terminate the Agreement pursuant to this Section 8.3 if the Company is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement or (b) at any time prior to the Company Requisite Vote being obtained, (i) if the Board of Directors of the Company authorizes the Company, subject to complying with the terms of Section 6.2, to enter into an Alternative Acquisition Agreement with respect to a Superior Proposal that did not result from a material breach of this Agreement, (ii) concurrently with the termination of this Agreement the Company, subject to complying with the terms of Section 6.2, enters into an Alternative Acquisition Agreement providing for a Superior Proposal that did not result from a material breach of this Agreement and (iii) prior to or concurrently with such termination, the Company pays to Parent in immediately available funds any fees required to be paid pursuant to Section 8.5(b), subject to and in accordance with Section 8.5(c).

Comcast/Time Warner (DOJ 2014)

(h)                      Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 10.01. Termination.  This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time (notwithstanding any approval of this Agreement by the stockholders of the Company):

(a) by mutual written agreement of the Company and Parent;

                        (b) by either the Company or Parent, if: (i) if the Merger is not consummated on or before February 12, 2015 (the “End Date”); provided, however, that, if on such date any of the conditions set forth in Section 9.01(b), Section 9.01(c) and Section 9.01(d) (solely on account of a temporary or preliminary order or injunction) are not satisfied, but all other conditions set forth in Article 9 shall have been satisfied (other than those conditions that have been waived by the Company and Parent, if and to the extent that such waiver is permitted by Applicable Law, and other than those conditions that by their nature can only be satisfied at or immediately prior to the Closing), then either the Company or Parent shall have the right, in its sole discretion, to extend the End Date by a period of six months, in which case the End Date shall be August 12, 2015; provided, further, that the right to terminate this Agreement pursuant to this Section 10.01(b)(i) shall not be available to any party whose breach of any provision of this Agreement results in the failure of the Merger to be consummated on or before the End Date (as extended, if applicable);

ConAgra, Cargill, CHS Inc., Horizon Milling Joint Venture (DOJ 2014)

(h)         Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §8.01 

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

                        (d) by any Parent if the Closing will not have been consummated by March 31, 2014 (the “Outside Date”); provided, however, that if the only reason that such Closing has not taken place by such date is a failure of the condition set forth in Section 6.01(e) to be satisfied or waived, then Oracle or Watson shall have the right by providing written notice to the other Parties on or before March 31, 2014 to extend the Outside Date to June 30, 2014;provided, further, that a Parent may not terminate this Agreement pursuant to this Section 8.01(b) if the Closing will not have been consummated by such date by reason of the failure of such Parent to perform, or to cause its Affiliates to perform, in all material respects any of its or their respective covenants or agreements contained in this Agreement;

                        (e) by any Parent if there will be any applicable Law that makes consummation of any material Contemplated Transactions illegal or otherwise prohibited or if consummation of any material Contemplated Transaction would violate any nonappealable final Order of any Governmental Entity having competent jurisdiction over such Parent


Dollar Tree/Family Dollar (FTC 2014-2015)

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 7.1(a)-(c): Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the Merger by the stockholders of the Company:

                        (a) by the mutual written consent of the Company and Parent;

                        (b) by either the Company or Parent, if the Merger shall not have been consummated on or prior to April 27, 2015 (the “End Date”); provided, however, that if all of the conditions to Closing, other than the conditions set forth in Section 6.1(e), shall have been satisfied or shall be capable of being satisfied at such time and/or the Marketing Period has not expired, the End Date shall automatically be extended to July 27, 2015; and provided, further, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to a party if the failure of the Closing to occur by such date shall be due to the material breach by such party of any representation, warranty, covenant or other agreement of such party set forth in this Agreement;

                        (c) by either the Company or Parent, if an order by a Governmental Entity of competent jurisdiction shall have been issued permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and such order shall have become final and nonappealable; . . .

Express Scripts/Medco (FTC 2011)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 7.1:  Termination. Anything herein or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Mergers contemplated herein may be abandoned at any time prior to the Plato Effective Time, whether before or after the Plato Stockholder Approval and/or the Aristotle Stockholder Approval: . . . . (b) By either of Plato or Aristotle: . . . (i) if any Governmental Entity of competent jurisdiction shall have issued an Order permanently restraining, enjoining or otherwise prohibiting the Transactions and such Order shall have become final and non-appealable; (ii) if the Transactions shall not have been consummated by April 20, 2012 (the “Outside Date”); providedhowever, that if the conditions set forth in Section 6.1(c), Section 6.1(e) or Section 6.2(d) shall not have been satisfied or duly waived by all parties entitled to the benefit of such condition by the fifth (5th) Business Day prior to April 20, 2012, either Aristotle or Plato may, by written notice delivered to the other party, extend the Outside Date from time to time to a date not later than July 20, 2012, and if the conditions set forth in Section 6.1(c), Section 6.1(e) or Section 6.2(d) have not been satisfied or duly waived by all parties entitled to the benefit of such condition by the fifth (5th) Business Day prior to such date, either Aristotle or Plato may, by written notice delivered to the other, extend the Outside Date from time to time to a date not later than October 22, 2012; providedfurther, that the right to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall not be available to Plato or Aristotle if its action or failure to act constitutes a material breach or violation of any of its covenants, agreements or other obligations hereunder and such material breach or violation has been the principal cause of or directly resulted in (1) the failure to satisfy the conditions to the obligations of the terminating party to consummate the Merger set forth in Article VI prior to the Outside Date (as the same may be extended) or (2) the failure of the Closing to occur by the Outside Date (as the same may be extended)[.]

Gannett Co./Belo Corp. (DOJ 2013)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 8.1(b)

Termination. This Agreement may be terminated and the Merger contemplated hereby may be abandoned at any time prior to the Effective Time, whether before or after approval of matters presented in connection with the Merger at the Stockholders’ Meeting or any adjournment or postponement thereof (except as otherwise expressly noted):

                        (b) by Gannett or the Company, upon written notice of termination of this Agreement to the other, if: (i) the Effective Time shall not have occurred on or before 5:00 p.m., local New York, New York time, on December 27, 2013 (such date, as the same may be extended in accordance with this Agreement, the “Outside Date”); provided, that the right to terminate this Agreement set forth in this subsection shall not be available to a party whose breach of this Agreement materially contributed to the failure of the Merger to have been consummated on or before the Outside Date; provided, further, that neither party may terminate this Agreement pursuant to this Section 8.1(b)(i) during the pendency of any Legal Proceeding seeking specific performance of this Agreement; . . . or (iii) any Governmental Authority of competent jurisdiction shall have issued an order, injunction, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting or making illegal the Merger and such order, injunction, decree, ruling or other action is or shall have become final and non-appealable;

Jos A. Bank/Men’s Wearhouse (FTC 2014)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §8.1 Termination.  Subject to Section 1.3(c), this Agreement may be terminated and the Offer and the Merger may be abandoned at any time prior to the Effective Time:

                        (a) by mutual written consent of Parent and the Company;

                        (b) by either Parent or the Company: (i) if the Offer Closing shall not have occurred by September 30, 2014 (the “Outside Date”); providedhowever, that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall not be available to any party whose failure to fulfill any covenant or agreement contained in this Agreement has been a principal cause of, or resulted in, the failure of the Offer Closing to have occurred on or by such date; or . . .

Kroger/Harris Teeter (FTC 2014)

(h)     Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §7.1 

7.1          Termination.  This Agreement may be terminated at any time before the Effective Time, whether before or after approval of the matters presented in connection with the Merger by the shareholders of the Company:

… 

                        (b) Delay. By either the Company or Parent, if the Merger shall not have been consummated on or before March 31, 2014 (the “End Date”); provided, however, that if on March 31, 2014 any of the conditions to Closing set forth in Section 6.1(b) or 6.1(c) shall not have been satisfied or duly waived by the Party or Parties entitled to the benefit of such condition but all other conditions to Closing set forth in Article VI shall have been satisfied (other than those conditions that by their nature cannot be satisfied until the Closing Date, but which would be capable of being satisfied if the Closing Date occurred on the End Date) or waived, then the End Date shall be automatically extended without further action of the Parties to (and including) June 30, 2014; provided, further, that if on June 30, 2014 any of the conditions to Closing set forth in Section 6.1(b) or 6.1(c) shall not have been satisfied or duly waived by the Party or Parties entitled to the benefit of such condition but all other conditions to Closing set forth in Article VI shall have been satisfied (other than those conditions that by their nature cannot be satisfied until the Closing Date, but which would be capable of being satisfied if the Closing Date occurred on the End Date) or waived, then the End Date shall, at the option of the Company or Parent (exercised by written notice to the other Parties) be extended to (and including) September 30, 2014 (and, provided, further, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been a principal cause of or resulted in the failure of the Merger to occur on or before the End Date (as extended, if applicable));

                        (c) No Regulatory Approval. By either Parent or the Company if a Governmental Entity of competent jurisdiction shall have issued a nonappealable final order, decree or ruling or taken any other nonappealable final action, in each case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger (provided, that the right to terminate this Agreement under thisSection 7.1(c) shall not be available to any Party whose failure to fulfill any obligation under this Agreement has been a principal cause of or resulted in such order, decree, ruling or other action);


Medtronic/Covidien (FTC 2014)

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 9.1 (a): Termination. (a) This Agreement may be terminated at any time prior to the Effective Time (except as otherwise provided below): . . . (ii) by either Covidien or Medtronic, if the Effective Time shall not have occurred by 5:00 p.m., New York City time, on the End Date, provided that the right to terminate this Agreement pursuant to this Clause 9.1(a)(ii) shall not be available to a Party whose breach of any provision of this Agreement shall have been the primary cause of the failure of the Effective Time to have occurred by such time; . . . (iv) by either Covidien or Medtronic, if an injunction shall have been entered permanently restraining, enjoining or otherwise prohibiting the consummation of the Acquisition or the Merger and such injunction shall have become final and non-appealable; provided that the right to terminate this Agreement pursuant to this Clause 9.1(a)(iv) shall not be available to a Party whose breach of any provision of this Agreement shall have been the primary cause of such injunction; . . .

“End Date”, March 15, 2015; provided, that if as of such date all Conditions (other than (i) Conditions 2(c), 2(d), 3(c), 3(d) and 3(e) and (ii) Condition 3(g) (if, in the case of this clause (ii), the reason for the failure of such Condition is an injunction, order or prohibition under any Antitrust Law) have been satisfied (or, in the sole discretion of the applicable Party, waived (where applicable)) or would be satisfied (or, in the sole discretion of the applicable Party, waived (where applicable)) if the Acquisition were completed on such date, the “End Date” shall be June 15, 2015;

Mylan/Agila Specialties (FTC 2013)

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §6.5-6.6

Limited Right to Terminate

                        6.5       Subject to Clause 6.6, neither the Purchaser nor the Seller shall have any right (including any right under common law or any right in respect of claims arising under or in connection with this Agreement, other than in the case of fraud or fraudulent misrepresentation) to rescind or terminate or fail to perform this Agreement and shall not be entitled to treat the Seller or the Purchaser, as applicable, as having repudiated this Agreement.

                        6.6       Notwithstanding Clause 6.5, this Agreement may be terminated:

                        6.6.1    by the Purchaser, by written notice to the other Parties, if: (A) provided the Purchaser is not then in material breach of any of the Purchaser Warranties, or any of its undertakings, covenants or agreements contained in this Agreement, there has been a breach of any of the Fundamental Seller Warranties, and which breach if capable of being cured has not been cured within *** of discovery of the breach; (B) the Seller is declared insolvent, or has filed any petition to initiate bankruptcy Proceedings, winding up Proceedings, suspension of payments, a creditor’s arrangement or any other similar insolvency Proceedings; or (C) a Material Adverse Effect has occurred which is incapable of remedy or, if reasonably capable of remedy, has not been remedied *** of the occurrence of the Material Adverse Effect.

                        6.6.2    by the Seller, by written notice to the other Parties, if: (A) provided the Seller is not then in material breach of any of the Seller Warranties, or any of its undertakings, covenants or agreements contained in this Agreement, there has been a breach of any of the Purchaser Warranties, and which breach if capable of being cured has not been cured or cannot be cured prior to the Longstop Date; or (B) the Purchaser is declared insolvent, or has filed any petition to initiate bankruptcy Proceedings, winding up Proceedings, suspension of payments, a creditor’s arrangement or any other similar insolvency Proceedings.

                        6.6.3    if, subject to Clause 4.11, one or more of the Conditions becomes incapable of satisfaction on or before the Longstop Date or, if it is a Condition which can be waived by a Party who has the benefit of such Condition (and for this purpose, the Parties acknowledge that the Seller has the benefit of the Conditions in paragraphs 1, 2.7 and 3 of Schedule 2 and the Purchaser has the benefit of the Conditions in paragraphs 1, 2 and 3 of Schedule 2), has not been waived by written notice to the other Parties within ten (10) Business Days of such Condition becoming incapable of satisfaction, and the provisions of Clause 15 (Surviving Provisions) shall apply.


National CineMedia/Screenvision (DOJ 2014-2015)

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 8.01(a)-(d): Termination. This Agreement may be terminated at any time prior to the Closing:

                        (a) by the mutual written consent of Company Member and Parent;

                        (b) by Parent by written notice to Company Member if: . . . (ii) the conditions set forth in Section 7.01(a) shall not have been fulfilled by May 5, 2015 or 90 days thereafter if extended pursuant to written notice provided by the Company Member to Parent or Parent to the Company Member prior to May 5, 2015 (the “Termination Date”), unless such failure shall be due to the failure of Parent to provide all of the information required pursuant to the HSR Act in the initial filing or upon additional requests from the appropriate regulators or to fulfill any obligation of Parent under this Agreement; or (iii) any of the conditions set forth in Section 7.02 shall not have been fulfilled by the Termination Date, unless such failure shall be due to the failure of Parent to fulfill any of its obligations under this Agreement or otherwise perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;

                        (c) by Company Member by written notice to Parent if: . . . (ii) the conditions set forth in Section 7.01(a) shall not have been fulfilled by the Termination Date, unless such failure shall be due to the failure of Company Member to provide all of the information required pursuant to the HSR Act in the initial filing or upon additional requests from the appropriate regulators or to fulfill any obligation of Company Member under this Agreement; (iii) any of the conditions set forth in Section 7.03 shall not have been fulfilled by the Termination Date, unless such failure shall be due to the failure of Company Member to fulfill any of its obligations under this Agreement or perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or

                        (d) by Parent or Company Member in the event that (i) there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited or (ii) any Governmental Authority shall have issued a Governmental Order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable.

Nielsen Holdings/Arbitron (FTC 2012-13)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 8.01(b): 8.01 Termination. This Agreement may be terminated at any time prior to the Effective Time, whether before or after receipt of the Company Stockholder Approval (except as otherwise provided below):

                        (b) by either Parent or the Company: (i) if the Merger shall not have been consummated on or before October 1, 2013 (as it may be extended, the “Outside Date”), unless the failure to consummate the Merger is the result of a material breach of this Agreement by the party seeking to terminate this Agreement (which, in the case of Parent, includes any breach by Merger Sub); provided, that if on the Outside Date (i) either of the conditions set forth in Section 7.01(b) or Section 7.01(c) has not been satisfied, or (ii) litigation with any Governmental Entity that is challenging the consummation of the Merger or the other Transactions contemplated hereby under the HSR Act or any other antitrust laws has been commenced or threatened, then, upon the request of Parent or the Company and with the written consent of the other party (such consent not to be unreasonably withheld) (provided, that the requesting party reasonably believes, after consultation with outside legal counsel, that approvals necessary to satisfy the conditions set forth in Sections 7.01(b) and 7.01(c) are reasonably likely to be obtained during such extension period or a subsequent permitted extension period and, in the event of a request by Parent, that the Parent Extension Conditions (as defined below) have been satisfied), the Outside Date then in effect shall be extended by no more than two (2) times in the aggregate, each time by a period of thirty-eight (38) calendar days (and in the case of such extension, any reference to the Outside Date in this or any other provision of this Agreement shall be a reference to the Outside Date, as extended); (ii) if there shall be any Law or Judgment permanently enjoining, restraining or prohibiting the consummation of the Merger that shall have become final and nonappealable; provided, however, that the right to terminate under this Section 8.01(b)(ii) shall not be available to any party whose material breach of this Agreement has been the principal cause of such action . . .

Office Depot/OfficeMax (FTC 2013)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 8.1Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Closing: . . .

                        (b) by either Office Depot or OfficeMax if there shall be any law or regulation that makes consummation of the Transactions illegal or otherwise prohibited, or if any judgment, injunction, order or decree of a competent United States federal or state Governmental Authority enjoining Office Depot or OfficeMax from consummating the Transactions shall have been entered and such judgment, injunction, order or decree shall have become final and nonappealable; provided that the party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall have used its reasonable best efforts to render inapplicable such law or regulation or remove such judgment, injunction, order or decree as required by Section 5.3;

                        (c) by either Office Depot or OfficeMax if the Transactions shall not have been consummated on or before December 31, 2013 (the “End Date”); provided, however, that if on December 31, 2013 any of the conditions to Closing set forth in Section 7.1(b) or 7.1(c) shall not have been satisfied or duly waived by the party or parties entitled to the benefit of such condition but all other conditions to Closing set forth in Article VII shall have been satisfied (other than those conditions that by their nature cannot be satisfied until the Closing Date, but which would be capable of being satisfied if the Closing Date occurred on the End Date) or waived, then the End Date shall be automatically extended without further action of the parties to (including) April 30, 2014; provided, further, that the right to terminate this Agreement under this Section 8.1(c) shall not be available to any party whose failure to perform any covenant or obligation under this Agreement has been the cause of or resulted in the failure of the Transactions to occur on or before the End Date (as extended);

Pinnacle Entertainment/Ameristar Casinos (FTC 2013)

(h)          Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §7.1 

Termination. (a)               This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after the Company Stockholder Approval has been obtained (with any termination by Parent also being an effective termination by HoldCo and Merger Sub):

                        . . . .

                        (b) by either Parent or the Company: (i) if the Merger shall not have been consummated before September 21, 2013, or, if the Marketing Period has started and is in effect at such date, then the second Business Day following the expiration of the Marketing Period (the “Termination Date”); provided, that neither party shall have the right to terminate this Agreement pursuant to this Section 7.1(b)(i) if any action of such party or failure of such party to perform or comply with the covenants and agreements of such party set forth in this Agreement shall have been the primary cause of, or resulted primarily in, the failure of the Merger to be consummated by the Termination Date and such action or failure to perform constitutes a breach of this Agreement; provided further, that if as of the Termination Date, all of the conditions precedent to Closing other than the condition set forth in Section 6.1(d) (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are reasonably capable of being satisfied) shall have been satisfied as of the Termination Date, then either Parent or the Company may unilaterally extend the Termination Date for 90 days upon written notice to the other by the Termination Date, in which case the Termination Date shall be deemed for all purposes to be so extended; provided further, however, that with respect to any such unilateral extension by the Company or Parent, the Termination Date shall only be extended for the duration (not to exceed 90 days) during which the Debt Financing Commitment (or any alternative debt financing commitment meeting the requirements of Section 5.16), in each case, after giving effect to the extension, if any, of the same, remains in full force and effect; provided further, however, that if the Merger is not consummated by the Termination Date as a result of a Financing Failure, then, notwithstanding the first proviso of this Section 7.1(b)(i), Parent may terminate this Agreement pursuant to Section 7.1(b)(v). For the avoidance of doubt, nothing in this Agreement shall be construed to obligate Parent to seek or obtain any extension of the Debt Financing Commitment (or, after September 21, 2013, to seek any alternative debt financing commitment meeting the requirements of Section 5.16). (ii) if the Company or any Parent Entity receives a definitive oral or written notice or determination from any Gaming Authority or the staff of any Gaming Authority that a Parent Entity will not be granted any Gaming Approval by such Gaming Authority that is required in order for the condition set forth in Section 6.1(d) to be satisfied; provided, that neither party shall have the right to terminate this Agreement pursuant to this Section 7.1(b)(ii) if any action of such party or failure of such party to perform or comply with the covenants and agreements of such party set forth in this Agreement shall have been the primary cause of, or resulted primarily in, any such Gaming Authority’s refusal to grant any such Gaming Approval; (iii) if any court of competent jurisdiction or other Governmental Entity shall have issued a judgment, order, injunction, rule or decree, or taken any other action restraining, enjoining or otherwise prohibiting any of the transactions contemplated by this Agreement and such judgment, order, injunction, rule, decree or other action shall have become final and nonappealable; provided, that the party seeking to terminate this Agreement pursuant to this Section 7.1(b)(iii) shall have used its reasonable best efforts to contest, appeal and remove such judgment, order, injunction, rule or decree, ruling or other action in accordance with Section 5.7;

Sysco/US Foods (FTC 2014)

(h)            Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § 8.1. Termination. (a)               This Agreement may be terminated at any time on or prior to the Closing Date, whether before or after the Company Stockholder Approval has been received:

                        (a) With the mutual written consent of each of the Company, Parent and the Merger Subs;

                        (b) By either the Company or Parent, if the Closing of the Mergers shall not have occurred on or before March 8, 2015 (the “Termination Date”); provided, however, that if all of the conditions to Closing, other than the conditions set forth in Section 6.3 or Section 7.3, shall have been satisfied or shall be capable of being satisfied at such time, the Termination Date may be extended by either the Company or Parent from time to time by written notice to the other party, in each case for sixty days, up to a date not beyond September 8, 2015, the latest of any of which dates shall thereafter be deemed to be the Termination Date;

Tyson Foods/Hillshire Brands (DOJ 2014)

(h)          Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  §8.1(p)(i)

This Agreement may be terminated and the Offer and the Merger may be abandoned at any time prior to the Effective Time, whether before or after the Company Stockholder Approval, if required by applicable Law, has been obtained (except as otherwise stated below) … (p) By either of Parent or the Company:

(i) if any Governmental Entity of competent jurisdiction shall have issued an Order permanently restraining, enjoining or otherwise prohibiting the consummation of the Offer or the Merger and such Order shall have become final and non-appealable; or

(ii) if the Acceptance Time shall not have occurred by the earlier to occur of (i) June 6, 2015 and (ii) five months after the execution and delivery of this Agreement by the Company (the “ Outside Date ”); provided , that if, on such date, all Offer Conditions other than (x) the condition set forth in clause (b) of Annex A have been satisfied or waived (to the extent permitted by applicable Law) by Merger Sub and (y) those conditions that by their nature can only be satisfied at the Acceptance Time, then the Outside Date shall be extended until the date that is four months after such date, and such extended date shall be deemed the “Outside Date” for all purposes hereunder; provided , further , that the right to terminate this Agreement pursuant to this Section 8.1(b)(ii) shall not be available to any Party that has breached its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Acceptance Time to have occurred by the Outside Date;


Verso Paper/Newpage Holdings (DOJ 2014-2015)

(h)               Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 7.1(a)-(c): Termination or Abandonment. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after any approval of the Merger by the stockholders of the Company:

                        (a) by the mutual written consent of the Company and Parent;

                        (b) by either the Company or Parent if (i) the Effective Time shall not have occurred on or before 5:00 p.m. (New York City time) on December 31, 2014 (the “End Date”) and (ii) the party seeking to terminate this Agreement pursuant to this Section 7.1(b) shall not have breached in any material respect its obligations under this Agreement in a manner that shall have been a principal cause of the failure to consummate the Merger on or before such date; provided, however, that the End Date may be extended by either party for up to two additional thirty (30) calendar day periods (all such extensions not to exceed sixty (60) calendar days in the aggregate), if the only condition set forth in Article VI that has not been satisfied or waived (other than those conditions that by their nature are satisfied at the Closing) is the condition set forth in Section 6.1(c);

                        (c) by either the Company or Parent if any court of competent jurisdiction (including, for the avoidance of doubt, the jurisdictions set forth on Schedule 6.1(b)) shall have issued or entered a permanent injunction or a similar order shall have been entered permanently enjoining or otherwise prohibiting the consummation of the Merger and such injunction shall have become final and non-appealable, provided that the party seeking to terminate this Agreement pursuant to this Section 7.1(c) shall have used such reasonable best efforts as may be required by Section 5.6 to prevent, oppose and remove such injunction;

Western Digital/Hitachi (FTC 2012)

(h)                      Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement.  § Section 10.1 Methods of Termination(a) This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Closing:

                        (a) by mutual consent of the Parties;

                        (b) by any of the Parties at any time after the date that is twelve (12) months following the date of execution of this Agreement (the “Termination Date”), if the Closing shall not have occurred and the Party seeking termination is not in material violation or breach of its respective representations, warranties, covenants or obligations contained in this Agreement; 


Zillow/Trulia (FTC 2014-2015)

(h)                   Time Period and Other Conditions Under Which the Parties May Walk Away from the Agreement. § 8.01: Termination. This Agreement may be terminated and the Mergers and the other transactions contemplated hereby may be abandoned at any time prior to the Initial Effective Time, notwithstanding receipt of Trulia Stockholder Approval, as follows:

                        (a) by mutual written consent of Zillow and Trulia duly authorized by the Zillow Board and Trulia Board; or

                        (b) by either Zillow or Trulia if the Initial Effective Time shall not have occurred on or before January 28, 2016 (the “Outside Date”), provided, however, that the right to terminate this Agreement under this Section 8.01(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement has been the cause of, or resulted in, the failure of the Initial Effective Time to occur on or before the Outside Date; or

                        (c) by either Zillow or Trulia if any Governmental Authority in the United States shall have enacted, issued, promulgated, enforced or entered any injunction, order, decree or ruling (whether temporary, preliminary or permanent) which has become final and nonappealable and has the effect of making consummation of the Mergers illegal or otherwise prohibiting consummation of the Mergers; . . .