Agreement as to Damages. If at any time after the execution of this Agreement:
(i) the board of directors of one Party has withdrawn, modified, qualified or changed any of its recommendations or determinations referred to in Section 2.2(a) or Section 2.3(a), as applicable, in a manner adverse to the other Party or shall have resolved to do so prior to the Effective Date, has recommended a Superior Proposal or has failed to publicly reconfirm its recommendation in Section 2.2(a) or Section 2.3(a), as applicable, upon the request of the other Party prior to the earlier of ten days following such request or 72 hours prior to the applicable shareholders’ meeting (unless the Party requesting such reconfirmation is then in material breach of its obligations hereunder and such withdrawal, modification, qualification, change or failure relates to such breach), or (ii) a Party has accepted, approved or entered into a Permitted Acquisition Agreement;
(b) (i) an Acquisition Proposal in respect of Agrium is publicly announced, proposed, disclosed, offered or made or any Person shall have publicly announced an intention to make an Acquisition Proposal in respect of Agrium, (ii) after such Acquisition Proposal shall have been publicly announced, proposed, disclosed, offered or made, this Agreement is terminated (A) by either Party pursuant to Section 8.1(c) [No Agrium Securityholder Approval] or Section 8.1(d) [Outside Date], or (B) by PCS pursuant to Section 8.1(e) [Failure to Satisfy Reps, Warranties, Covenants Conditions] as a result of the failure to satisfy the condition in Section 6.3(b) [Compliance by Agrium with Covenants], and (iii) such Acquisition Proposal, or an amended version thereof, or any other Acquisition Proposal relating to Agrium is consummated, agreed to or entered into, as applicable, within 12 months of the date this Agreement is terminated (and, as applicable, subsequently consummated, closed or effected, at any time);
(i) an Acquisition Proposal in respect of PCS is publicly announced, proposed, disclosed, offered or made or any Person shall have publicly announced an intention to make an Acquisition Proposal in respect of PCS, (ii) after such Acquisition Proposal shall have been publicly announced, proposed, disclosed, offered or made, this Agreement is terminated (A) by either Party pursuant to Section 8.1(b) [No PCS Shareholder Approval] or Section 8.1(d) [Outside Date], or (B) by Agrium pursuant to Section 8.1(e) [Failure to Satisfy Reps, Warranties, Covenants Cond...
Agreement as to Damages. 5.8.1. Notwithstanding any other provision hereof relating to the payment of fees or expenses (including Section 5.16), including the payment of brokerage fees, if:
(a) the Agreement is terminated either by IESI-BFC or by WSI pursuant to Section 7.4.1(a) in circumstances where the Agreement and Merger did not receive the requisite approval at the WSI Stockholders Meeting (as contemplated in Section 6.1.5), but only if prior to the WSI Stockholders Meeting an Acquisition Proposal shall have been made to the holders of WSI Common Stock or any Person shall have publicly announced an intention to make an Acquisition Proposal, and within twelve months of termination of this Agreement, any Person or company either (a) acquires, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock or consolidated assets of WSI or (b) enters into a definitive agreement to acquire, directly or indirectly, more than 50% of the issued and outstanding WSI Common Stock or consolidated assets of WSI; or
(b) IESI-BFC shall have terminated this Agreement pursuant to Section 7.4.1(b) on the basis of any intentional breach of this Agreement by WSI; or
(c) IESI-BFC shall have terminated this Agreement pursuant to Section 7.4.1(d); or
(d) WSI shall have terminated this Agreement pursuant to Section 7.4.1(e); then WSI shall pay, or cause to be paid, to IESI-BFC (or as IESI-BFC may direct by notice in writing), within two (2) Business Days of the first to occur of the foregoing, the amount of $11,000,000 plus an amount equal to the aggregate of all out-of-pocket costs up to a maximum of $3,500,000 for professional and advisory services and other expenses reasonably incurred by IESI-BFC in connection with the Transactions and the preparations therefor to the date of termination (the amount of such expenses to be confirmed by IESI-BFC in writing in reasonable detail) (collectively, the “IESI-BFC Termination Fee” and the aggregate of all such out-of-pocket costs, the “IESI-BFC Expense Reimbursement Amount”) less any amounts actually paid by WSI to IESI-BFC pursuant to Section 5.8.2, if any, in immediately available funds to an account designated by IESI-BFC. Notwithstanding any other provision hereof relating to the payment of fees or expenses (including Section 5.16), including the payment of brokerage fees, if WSI shall have terminated this Agreement pursuant to Section 7.4.1(c) on the basis of any intentional breach of this Agreement by IESI-BFC, then IESI-BFC sh...
Agreement as to Damages. 7.3.1 If at any time after the execution of this Agreement:
(a) Comamtech Board withdraws, amends, changes or qualifies, or proposes publicly to withdraw, amend, change or qualify, in any manner adverse to the Corporation, any of its recommendations or determinations referred to in Section 4.1.1;
(b) Comamtech Board shall have failed to publicly reaffirm any of its recommendations or determinations referred to in Section 4.1.1 in accordance with Section 7.1.5 (or, in the event that the Meeting to approve the Arrangement is scheduled to occur within such five Business Day period, prior to the scheduled date of the Meeting);
(c) a bona fide Acquisition Proposal is publicly announced, proposed, offered or made to the Shareholders or to Comamtech and has not expired or been withdrawn at the time of the Meeting or the Arrangement is not submitted for their approval;
(d) Comamtech Board or any committees of the Comamtech Board accepts, recommends, approves or enters into an agreement, understanding or letter of intent to implement a Superior Proposal; or
(e) subject to Section 6.4, if the Corporation is not in material breach of its obligations under this Agreement and Comamtech breaches any of its covenants contained in this Agreement, including the covenant contained in Section 7.1, which breach would give rise to the failure of a condition set forth in Section 6.3.1; (each of the above being a “Corporation Damages Event”) then, in the event of the termination of this Agreement pursuant to Article 8, Comamtech shall pay by wire transfer to Corporation (or to whom Corporation may direct in writing) $500,000 (the “Termination Fee”) in immediately available funds to an account designated by Corporation within two Business Days after the first to occur of the events described above. Following the occurrence of a Comamtech Damages Event, but prior to payment of the Termination Fee, Comamtech shall be deemed to hold such applicable payment in trust for the Corporation. The Corporation shall only be obligated to make one payment pursuant to this Section 7.3.1.
7.3.2 If, at any time after the execution of this Agreement:
(a) the Corporation Board withdraws, amends, changes or qualifies, or proposes publicly to withdraw, amend, change or qualify, in any manner adverse to the Corporation, any of its recommendations or determinations referred to in Section 3.1.1;
(b) the Corporation Board shall have failed to publicly reaffirm any of its recommendations or determinations...
Agreement as to Damages. (1) Notwithstanding any other provision relating to the payment of fees or expenses, including the payment of brokerage fees, Fairmont shall pay, or cause to be paid, to Purchaser by wire transfer of immediately available funds an amount equal to $115 million (the “Termination Fee”) less any amounts actually paid by Fairmont to Purchaser pursuant to Section 7.4(2), if any:
(a) if Purchaser shall have terminated this Agreement pursuant to Section 8.2(3)(a) or Section 8.2(3)(c), in which case payment shall be made within two business days of such termination;
(b) if Fairmont shall have terminated this Agreement pursuant to Section 8.2(4)(a), in which case payment shall be made before or concurrently with such termination and shall be a condition to the effectiveness of such termination;
(c) if (A) after the date hereof, a bona fide Acquisition Proposal shall have been made or proposed to Fairmont or otherwise publicly announced, or a person has publicly announced an intention to do so (which has not been withdrawn), it being agreed that any amendment to the Offer to Purchase for Cash, dated as of December 9, 2005, by Icahn Partners LP and Icahn Partners Master Fund LP, changing the offer price or the number of Fairmont Shares sought for purchase shall constitute a new Acquisition Proposal for purposes of this clause (A), (B) this Agreement is terminated by either Purchaser or Fairmont pursuant to Section 8.2(2)(a) or Section 8.2(2)(b) or by Purchaser pursuant to Section 8.2(3)(b), (C) within 12 months following the date of such termination, Fairmont enters into a Contract providing for the implementation of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (A) above), and (D) Fairmont shall consummate such Acquisition Proposal, whether or not amended prior to its consummation, in which case payment shall be made within two business days of the date on which Fairmont consummates such Acquisition Proposal. For purposes of the foregoing clause (C) only, references in the definition of the term “Acquisition Proposal” to the phrase “20% or more” shall be deemed to be replaced by the phrase “more than 50%”
(d) if (A) after the date hereof, any person or group of persons acting in concert (other than Purchaser and its affiliates) shall have become the beneficial owner of 20% or more of the outstanding Fairmont Shares, (B) this Agreement is terminated by either Purchaser or Fairmont pursuant to S...
Agreement as to Damages. Notwithstanding any other provision relating to the payment of fees, including the payment of brokerage fees, if after the execution of this Arrangement Agreement the Arrangement is not consummated because:
(1) Parent shall have terminated this Arrangement Agreement pursuant to Section 8.2(1)(d);
(2) (i) a bona fide Acquisition Proposal shall have been made or proposed to Maple or to the Maple Shareholders after the date hereof and prior to the Special Meeting; (ii) this Arrangement Agreement is terminated pursuant to Section 8.2(1)(a)(iii); and (iii) within nine months of the date of this Arrangement Agreement an Acquisition Proposal is completed (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (i) above); provided, however, that for purposes of clause 7.3(2)(iii), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.1, except that references to “material sale” shall be deemed to be references to “sale of 50% or more” and reference to “securities” shall be deemed to be reference to “outstanding securities”;
(3) Parent shall have terminated this Arrangement Agreement pursuant to Section 8.2(1)(b) in the event of any wilful or intentional breach by Maple of any of its obligations under this Arrangement Agreement; or
(4) Maple shall have terminated this Arrangement Agreement pursuant to Section 8.2(1)(e), then Maple shall pay to Parent, within two Business Days of the first to occur of (1), (2) or (3) above (or, in the case of (4) above, contemporaneously or prior to such termination), the amount of $10,200,000 (the “Termination Fee”) as liquidated damages in immediately available funds to an account designated by Parent. For greater certainty, the Parties acknowledge that Maple shall not be obligated to make more than one payment pursuant to this Section 7.3. Each Party acknowledges that the payment amount set out in this Section 7.3 is a payment of liquidated damages which is a genuine pre-estimate of the aggregate damages which Parent and Acquisition Sub will suffer or incur as a result of the event giving rise to such damages and the resultant termination of this Arrangement Agreement and is not a penalty. Maple irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. For greater certainty, the Parties agree that, subject to Article 8, payment of the amount determined pursuant to this Section 7.3 in the ma...
Agreement as to Damages. (a) Notwithstanding any other provision relating to the payment of fees or expenses, in the event of termination of this Agreement and the Plan of Arrangement under the various circumstances set forth below, either Peak or Parent shall owe the other Party a termination fee and/or reimbursement of expenses, if any, as follows:
(i) if Parent terminates this Agreement pursuant to
(A) Section 8.2(c)(i) [Board fails to recommend, etc.], or
(B) Section 8.2(c)(ii) [breach by Peak], Peak will pay to Parent a termination fee of $5.3 million (the “Peak Termination Fee”) within two Business Days of such termination, plus Parent’s Expense Reimbursement Costs not to exceed $2.0 million as provided in Section 7.4(c) below; provided, however, that if Parent terminates this Agreement pursuant to Section 8.2(c)(ii) based upon a failure of one or more of Peak’s representations and warranties contained in Section 3.1 to be true and correct as of the Closing Date and such failure was not the result of a willful breach of this Agreement by Peak, Peak will be obligated to pay Parent’s Expense Reimbursement but will not be obligated to pay the Peak Termination Fee;
(ii) if
(A) after the date hereof and prior to the termination of this Agreement, a bona fide Acquisition Proposal will have been made or proposed to Peak or otherwise publicly announced (which has not been withdrawn), or a Person has publicly announced an intention to do so (which has not been withdrawn),
(B) this Agreement is terminated by either Parent or Peak pursuant to Section 8.2(b)(ii) [Required Vote not obtained], and
(C) such Acquisition Proposal is consummated within six months of the date the Acquisition Proposal is made or proposed, Peak will pay to Parent, within two Business Days of the consummation of such Acquisition Proposal, Parent’s Expense Reimbursement Costs not to exceed $2.0 million as provided in Section 7.4(c) below; or
(iii) if Peak terminates this Agreement pursuant to Section 8.2(d)(i) [Board approves agreement for Superior Proposal], Peak will pay to Parent the Peak Termination Fee before or concurrently with such termination (and payment of the Peak Termination Fee will be a condition to the effectiveness of such termination), plus Parent’s Expense Reimbursement Costs not to exceed $2.0 million as provided in Section 7.4(c) below.
(b) If Peak terminates this Agreement pursuant to Section 8.2(d)(ii) [Parent’s breach], Parent will pay to Peak a termination fee of $3.0 million within two Bu...
Agreement as to Damages. Notwithstanding the provisions of SECTION 7.2, if, after the execution of this Agreement, the Arrangement is not consummated and:
(a) Xxxxxx shall have terminated this Agreement pursuant to SECTION 8.1(c);
(b) a bona fide Acquisition Proposal is publicly announced, proposed, offered or made to the Shareholders or to Xxxxxx prior to the Meeting and after such Acquisition Proposal shall have been made known, made or announced the Arrangement Resolution does not receive the required approval of the Shareholders or the Arrangement Resolution is not submitted for approval of the Shareholders and, in either event, that Acquisition Proposal (the "FIRST ACQUISITION PROPOSAL") or any other Acquisition Proposal publicly announced, proposed, offered or made to the Shareholders or to Xxxxxx while the First Acquisition Proposal is outstanding (a "SUBSEQUENT ACQUISITION PROPOSAL") or while any Subsequent Acquisition Proposal is outstanding is completed substantially in accordance with its terms on or prior to the first anniversary of the Meeting Date; or
(c) Xxxxxx shall have terminated this Agreement pursuant to SECTION 8.1(e); then, Xxxxxx shall pay to Xxxxxx, within two Business Days of the first to occur of the foregoing, a fee in the amount of $14,800,000 (the "TERMINATION FEE") as liquidated damages in cash or immediately available funds to an account designated by Xxxxxx.
Agreement as to Damages. (a) Despite any other provision in this Agreement relating to the payment of fees and expenses, if a Termination Fee Event occurs and Purchaser or Parent is not then in breach of this Agreement so as to directly or indirectly cause any condition in Section 9.3(a) [Purchaser/Parent Performance of Covenants] or Section 9.3(b) [Purchaser/Parent Representatives and Warranties] not to be satisfied prior to or concurrent with such termination, the Company shall pay Purchaser the Termination Fee in accordance with Section 10.4(b). For the purposes of this Agreement, “Termination Fee” means $8,900,000 and “Termination Fee Event” means the termination of this Agreement:
Agreement as to Damages. If at any time after the execution of this Agreement:
(a) (i) the board of directors of one Party has withdrawn, modified, qualified or changed any of its recommendations or determinations referred to in Section 2.2(a) or Section 2.3(a), as applicable, in a manner adverse to the other Party or shall have resolved to do so prior to the Effective Date, or has failed to publicly reconfirm its recommendation in Section 2.2(a) or Section 2.3(a), as applicable, upon the request of the other Party prior to the earlier of three business days following such request or 72 hours prior to the applicable shareholders' meeting (unless the Party requesting such reconfirmation is then in material breach of its obligations hereunder and such withdrawal, modification, qualification, change or failure relates to such breach), or (ii) a Party has accepted, approved or entered into an agreement to implement a Superior Proposal;
(b) (i) an Acquisition Proposal in respect of Trican is publicly announced, proposed, disclosed, offered or made or any Person shall have publicly announced an intention to make an Acquisition Proposal in respect of Trican, (ii) after such Acquisition Proposal shall have been publicly announced, proposed, disclosed, offered or made, this Agreement is terminated (A) by either Party pursuant to Section 8.1(c) [No Trican Shareholder Approval] or Section 8.1(d) [Outside Date], or (B) by Canyon pursuant to Section 8.1(e) [Failure to Satisfy Reps, Warranties, Covenants Conditions] as a result of the failure to satisfy the condition in Section 6.3(b) [Compliance by Trican with Covenants], and (iii) such Acquisition Proposal, or an amended version thereof, is consummated within nine months of the date this Agreement is terminated;
(c) (i) an Acquisition Proposal in respect of Canyon is publicly announced, proposed, disclosed, offered or made or any Person shall have publicly announced an intention to make an Acquisition Proposal in respect of Canyon, (ii) after such Acquisition Proposal shall have been publicly announced, proposed, disclosed, offered or made, this Agreement is terminated (A) by either Party pursuant to Section 8.1(b) [No Canyon Securityholder Approval] or Section 8.1(d) [Outside Date], or (B) by Trican pursuant to Section 8.1(e) [Failure to Satisfy Reps, Warranties, Covenants Conditions] as a result of the failure to satisfy the condition in Section 6.2(b) [Compliance by Canyon with Covenants], and (iii) such Acquisition Proposal, or an amended...
Agreement as to Damages. (a) Notwithstanding any other provision relating to the payment of fees or expenses, including the payment of brokerage fees, the Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds an amount equal to $5,800,000 (the “Termination Fee”):
(i) if the Company shall have terminated this Agreement pursuant to Section 8.2(e)(i), in which case payment shall be made before or concurrently with such termination and shall be a condition to the effectiveness of such termination; or
(ii) if Parent shall have terminated this Agreement pursuant to Section 8.2(d)(i)(C), in which case payment shall be made within two Business Days of such termination.
(b) Notwithstanding any other provision relating to the payment of fees or expenses, including the payment of brokerage fees, the Company shall pay, or cause to be paid, to Parent by wire transfer of immediately available funds an amount equal to Parent’s Transaction Expenses not to exceed $3,000,000 (the “Termination Expenses”), if (i) the Board of Directors of the Company shall have withdrawn, amended or modified in a manner adverse to Parent (including as a result of any public announcements referenced in Section 8.2(d)(i)(D)) its approval or recommendation of the Arrangement (provided that the Company has not terminated this Agreement pursuant to Section 8.2(e)(i) or as otherwise permitted by this Agreement and Parent has not terminated this Agreement pursuant to Section 8.2(d)(i)(C) or as otherwise permitted by this Agreement) and (ii) thereafter the Company Required Vote is not obtained at the Company Meeting or any adjournment or postponement thereof.
(c) For the avoidance of doubt, in no event shall both the Termination Fee and the Termination Expenses be payable under this Agreement and in no event shall more than one Termination Fee or one reimbursement of Termination Expenses be payable under this Agreement.
