Break-Up Fee; Expense Reimbursement. If this Agreement is terminated in accordance with Section 6.1(e), then the Company and each Seller Subsidiary shall, promptly (and in any event as of the closing of the corresponding transaction) jointly and severally pay Purchaser in immediately available funds, and Purchaser shall be deemed to have earned, both (i) the Expense Reimbursement and (ii) an amount equal to 1,650,000 (the “Break-Up Fee”). If this Agreement is terminated by Purchaser for any reason in accordance with Section 6.1 (other than Section 6.1(e)) and the Company subsequently consummates a sale of all or a substantial portion of the Purchased Assets with a Person other than the Purchaser, including in connection with any Competing Transaction, then the Company and each Seller Subsidiary shall promptly (and in any event within five (5) Business Days after such event) jointly and severally pay Purchaser in immediately available funds, and Purchaser shall be deemed to have earned, the Expense Reimbursement. The Expense Reimbursement and the Break-Up Fee shall constitute administrative expenses of the Company with priority over any and all administrative expenses of the kind specified in Section 503(b) of the Bankruptcy Code until paid and shall be payable from the proceeds of the sale with a Third Party within two (2) Business Days, notwithstanding Section 507(a) of the Bankruptcy Code. The Parties hereby acknowledge that the amounts payable pursuant to this Section 6.3 are commercially reasonable and necessary to induce Purchaser to enter into this Agreement and consummate the Contemplated Transactions. For the avoidance of doubt, the covenants set forth in this Section 6.3 are continuing obligations, separate and independent from the other obligations of the Parties (and shall not limit Purchaser’s other rights and remedies under or in respect of this Agreement), and survive termination of this Agreement.
Break-Up Fee; Expense Reimbursement. (a) If (i) on or before June 30, 1998 (the "Termination Date"), a third party or group of related third parties become the beneficial owners of 50% or more of the outstanding voting securities of the Company (by a tender offer, exchange offer, stock issuance or otherwise), including any such transaction in which any of Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx or Xxxxxxx X. Xxxxx (each, a "Controlling Shareholder") or their affiliates participate, or (ii) the Merger is not consummated for any of the following reasons: (A) the Company's Board of Directors authorizes or recommends, or the Company enters into an agreement or agreement in principle or closes, an Acquisition Transaction (other than the Merger) or the Company's Board of Directors fails to recommend, or adversely modifies or withdraws its recommendation, to the Company's shareholders that they vote to approve the Merger as a result of Section 7.01(d), or takes any action to abandon or terminate this Agreement in accordance with Section 7.01(d), (B) a Controlling Shareholder or the Company fails to call a Shareholders' Meeting, or (C) the shareholders of the Company approve an Acquisition Transaction (other than the Merger), then the Company will promptly, but in no event later than three business days after the first of such events to occur, pay $2,000,000 to the Parent, plus an amount not to exceed $500,000 for the transaction expenses incurred by the Merger Sub and the Parent.
Break-Up Fee; Expense Reimbursement. (a) If one or more Sellers sell, transfer, lease or otherwise dispose of, directly or indirectly, including through an asset sale, stock sale, merger or other similar transaction, all or substantially all of the Business or the Purchased Assets in a transaction or a series of transactions with one or more Persons other than Purchaser in any circumstance, including in accordance with the Bidding Procedures (such event being an “Alternative Transaction”), Sellers shall pay to Purchaser, within two Business Days after the consummation of the Alternative Transaction, an amount in cash equal to $2,000,000 (the “Break-Up Fee”).
Break-Up Fee; Expense Reimbursement. (a) In the event that this Agreement is terminated under Section 8.1(e), and provided that (i) the Purchaser is not in material breach of any provision of this Agreement prior to such termination and (ii) a Competing Transaction has been consummated, the Seller shall pay to the Purchaser, in cash, the sum of $450,000.00 (the “Break-Up Fee”) not later than ten (10) Business Days after the consummation of the Competing Transaction.
Break-Up Fee; Expense Reimbursement. From and after the entry of the Bidding Procedures Order, if this Agreement is terminated for any reason other than pursuant to Section 12.1(e), Sellers shall reimburse Purchaser (and the direct and indirect owners of the equity of Purchaser) for documented reasonable out-of-pocket costs and expenses (including legal, accounting, engineering and other consultant fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby (the "Expense Reimbursement Amount") in an amount up to (i) One Million U.S. Dollars ($1,000,000.00) or (ii) Two Million U.S. Dollars ($2,000,000.00) in the event this Agreement is terminated pursuant to Section 12.1(b) or as a result of Seller accepting a Competing Bid. From and after (i) the date on which Purchaser has waived its rights to terminate this Agreement pursuant to Section 12.1(f) and (g) or both such rights have lapsed due to the passage of time, and (ii) the receipt by Purchaser of a firm commitment from the Bank Lenders with respect to the New Credit Facility, if this Agreement is terminated for any reason other than pursuant to Section 12.1(e), Sellers shall pay Purchaser (x) the Expense Reimbursement Amount in an amount up to Two Million U.S. Dollars ($2,000,000.00) plus (y) Three Million U.S. Dollars ($3,000,000.00) (the "Break-Up Fee") in the event this Agreement is terminated pursuant to Section 12.1(b) or as a result of Seller accepting a Competing Bid. The payment of the Expense Reimbursement Amount and the Break-Up Fee shall be made by wire transfer of immediately available funds promptly following the termination of this Agreement and, in the event this Agreement is terminated pursuant to Section 12.1(d) or as a result of Seller accepting a Competing Bid, no later than the date that any definitive agreement is executed with respect thereto and shall be paid first from any deposits by a third party purchasers of a material portion of the Purchased Assets. The claim of Purchaser against Sellers with respect to the Break-Up Fee and the Expense Reimbursement Amount pursuant to this Section 12.3 shall constitute an administrative expense claim in the Chapter 11 Cases that will rank pari passu with all other administrative expense claims, including claims under Section 507(b) of the Bankruptcy Code.
Break-Up Fee; Expense Reimbursement. (a) Sellers acknowledge (i) that Buyer has made a substantial investment in time and incurred substantial out-of-pocket expenses in connection with the negotiation and execution of this Agreement, its due diligence with respect to the Purchased Assets, and its efforts to consummate the transactions contemplated hereby, and (ii) that Buyer’s efforts have substantially benefited Sellers and will benefit Sellers and will benefit the bankruptcy estate of Sellers through the submission of the offer reflected in this Agreement which will serve as a minimum bid on which other potentially interested bidders can rely. Therefore, as compensation for entering into this Agreement, taking action to attempt to consummate the transactions contemplated hereby and incurring the costs and expenses related thereto and other losses and damages, including foregoing other opportunities, subject to limitations set forth in the Bidding Procedures, Sellers agree, jointly and severally, to pay to Buyer the Expense Reimbursement, plus an amount equal to six million seven hundred sixty thousand dollars ($6,760,000.00) (the “Break-Up Fee”) promptly following (a) this Agreement being validly terminated by Buyer or Sellers pursuant to Section 7.1(j) and (b) Sellers receiving the cash consideration in connection with the closing of the Alternative Transaction.
Break-Up Fee; Expense Reimbursement. (a) If (i) this Agreement is terminated by (A) Buyer pursuant to and in accordance with Section 9.01(d)(i), or (B) Sellers pursuant to and in accordance with Section 9.01(e)(i), (ii) Buyer shall not have breached any of its representations or warranties or failed to perform or comply with any of its covenants or agreements contained in this Agreement such that the conditions set forth in Section 8.03(a) (excluding conditions that, by their terms, cannot be satisfied until the Closing) shall not be satisfied and (iii) any Seller or Sellers consummate an Alternative Transaction prior to the date that is six (6) calendar months after the Execution Date, Sellers shall, subject to entry of the Bid Procedures Order, pay to Buyer a termination fee in the amount of (A) $500,000 (the “Break-Up Fee”) plus (B) the reasonable and documented costs and expenses incurred by Buyer in connection with the Transactions, up to a maximum of $500,000 (the “Expense Reimbursement”), which Break-Up Fee and Expense Reimbursement will constitute, pursuant to sections 364 and 503 of the Bankruptcy Code, a superpriority administrative expense claim in each of Seller’s bankruptcy estates with priority over any and all administrative expense claims and shall be payable upon consummation of such Alternative Transaction from the proceeds of such sale.
Break-Up Fee; Expense Reimbursement. If Buyer is not the successful bidder following the Auction, Buyer is not then in material breach of any provision of this Agreement, Buyer has not terminated this Agreement and the Bankruptcy Court enters an order approving the sale of all or a material part of the Purchased Assets to a Competing Bidder (a "Third-Party Sale"), then Buyer will be entitled to receive, as a "break-up fee", an amount equal to $200,000 (the "Break-Up Fee"), plus Buyer's reasonable out of pocket expenses, including the reasonable fees and expenses of Buyer's attorneys and other professionals and advisors (but excluding Buyer's internal costs such as wages and salaries of employees and overhead) incurred since September 20, 2004 in connection with the negotiation, execution and consummation of this Agreement (which expenses shall not exceed $200,000) (the "Expense Reimbursement"). Payment of the Break-Up Fee shall be made by wire transfer of immediately available U.S. funds to an account designated by Buyer from the proceeds of a Third-Party Sale, with such payment to be made immediately upon the consummation of such Third-Party Sale. The Expense Reimbursement shall be earned by Buyer immediately upon the entry of the Interim Order and payable to Buyer immediately upon the earliest to occur of (i) the closing of a sale pursuant to an order approving the sale of all or a material part of the Purchased Assets to a Competing Bidder or (ii) the effective date of a confirmed chapter 11 plan of reorganization that does not involve a sale of the Purchased Assets to Buyer. If the events described in clauses (i) and (ii) above occur on the same date, the Expense Reimbursement shall be payable to Buyer on such date. The Break-up Fee and Expense Reimbursement will not be payable in any event if (i) Buyer acquires the Purchased Assets from Seller as contemplated by this Agreement or (ii) the Closing does not occur due in whole or in part to any material breach of any representation, warranty or covenant by Buyer. The Break-Up Fee and Expense Reimbursement shall be allowed as an administrative expense pursuant to section 503(b)(1)(A) of the Bankruptcy Code entitled to the priority set forth in section 507(a)(1) of the Bankruptcy Code. Buyer submits to the jurisdiction of the Bankruptcy Court all issues relating to the determination of the Expense Reimbursement.
Break-Up Fee; Expense Reimbursement. (a) If the Break-Up Fee has not already been paid pursuant to the terms of this Agreement, and this Agreement is terminated (i) by Parent pursuant to Section 8.01(f) or by the Company pursuant to Section 8.01(h) or (ii) by (A) Parent pursuant to Section 8.01(d), (B) Parent or the Company pursuant to Section 8.01(c) at a time when this Agreement was terminable by Parent pursuant to Section 8.01(d) or (C) Parent pursuant to Section 8.01(g) and, in the case of this clause (ii), within twelve months following such termination, the Company either (1) consummates any of the transactions described in the definition of “Acquisition Proposal” with another Person or (2) enters into a letter of intent, memorandum of understanding or Contract with another Person with respect to any of the transactions described in the definition of “Acquisition Proposal”, which transaction is ultimately consummated (whether or not such consummation occurs within twelve months following such termination), then, in the case of each of clauses (i) and (ii), the Company shall pay to Parent the Break-Up Fee; provided, that for purposes of this Section 8.05(a), references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”.
Break-Up Fee; Expense Reimbursement. 9.2.1 Solely in the event that this Agreement is terminated pursuant to Sections 9.1.2.B, 9.1.3.C, 9.1.3.D, or 9.1.3.F, Delphi shall pay to Buyer Parent in immediately available funds a cash fee of $6,000,000 (the “Break-Up Fee”), such fee to be paid upon the consummation of an Alternative Transaction.
