Common use of Company Termination Fees Clause in Contracts

Company Termination Fees. If this Agreement is terminated (i) by the Company pursuant to Section 7.1(d), (ii) by Parent pursuant to Section 7.1(e) or (iii) by Parent or the Company pursuant to Section 7.1(c), Section 7.1(f) or Section 7.1(g), the Company shall promptly, and in any event within two (2) Business Days after the date of such termination, pay Parent the Company Termination Fee by wire transfer of immediately available funds; provided, however, that in the case of a termination pursuant to clause (iii) above: (A) such payment shall be made only if following the date hereof and prior to termination of this Agreement, there has been publicly announced a Competing Transaction (or, in the alternative, but solely with respect to termination pursuant to Section 7.1(f) or Section 7.1(g), there has been made to the Company or the Company Board of Directors a proposal regarding a Competing Transaction, whether or not publicly announced) and (1) within twelve (12) months following the termination of this Agreement a Company Acquisition is consummated or (2) within twelve (12) months following the termination of this Agreement the Company enters into an Acquisition Agreement with respect to a Company Acquisition, and (B) such payment shall be made promptly, but in no event later than two (2) Business Days, after the consummation of such Company Acquisition or the entering into of such Acquisition Agreement. The Company acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Parent would not have entered into this Agreement. The Company acknowledges that its obligation to pay to Parent any amounts due pursuant to this Section 7.2 is not subject to the Company Required Vote or any other shareholder vote being obtained.

Company Termination Fees. If (a) In the event that: (i) (A) this Agreement is terminated by (ix) the Company or Parent pursuant to Section 8.1(b)(i), (y) the Company or Parent pursuant to Section 8.1(b)(iii), or (z) Parent pursuant to Section 8.1(d)(i), (B) a Competing Proposal had been publicly announced, had been publicly disclosed or otherwise had become known, disclosed or communicated to the Company, the Company Board or the stockholders of the Company following the date of this Agreement and prior to such termination, and (C) within twelve (12) months of such termination of this Agreement, the Company either consummates a transaction involving a Competing Proposal or enters into a definitive agreement providing for a Competing Proposal; provided, however, that for purposes of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Competing Proposal shall be deemed to be references to “fifty percent (50%)”; (ii) this Agreement is terminated by the Company pursuant to Section 7.1(d8.1(c)(ii), ; or (iiiii) this Agreement is terminated by Parent pursuant to Section 7.1(e) or (iii) by Parent or the Company pursuant to Section 7.1(c8.1(d)(ii), Section 7.1(f) or Section 7.1(g), then the Company shall promptly(A) in the case of clause (i) above, no later than two (2) Business Days following the date of the earlier of the entry into the definitive agreement or consummation of such transaction involving a Competing Proposal, (B) in the case of clause (ii) above, prior to or substantially concurrently with such termination, and (C) in any event within the case of this clause (iii), no later than two (2) Business Days after the date of such termination, pay, or cause to be paid, at the direction of Parent, the Company Termination Fee; it being understood that in no event shall the Company be required to pay Parent the Company Termination Fee on more than one occasion. (b) In the event that this Agreement is terminated by wire transfer of immediately available funds; provided, however, that in the case of a termination pursuant to clause (iii) above: (A) such payment shall be made only if following the date hereof and prior to termination of this Agreement, there has been publicly announced a Competing Transaction (or, in the alternative, but solely with respect to termination Company or Parent pursuant to Section 7.1(f) or Section 7.1(g8.1(b)(iii), there has been made to then the Company or the Company Board of Directors a proposal regarding a Competing Transaction, whether or not publicly announced) and (1) within twelve (12) months following the termination of this Agreement a Company Acquisition is consummated or (2) within twelve (12) months following the termination of this Agreement the Company enters into an Acquisition Agreement with respect to a Company Acquisition, and (B) such payment shall be made promptly, but in no event later more than two (2) Business DaysDays after receipt of an invoice thereof, after pay, or cause to be paid, at the consummation direction of such Company Parent, all costs and Expenses incurred by or on behalf of Parent, Acquisition or the entering into of such Acquisition Agreement. The Company acknowledges that the agreements contained Sub and their respective Affiliates in connection with this Section 7.2 are an integral part of Agreement and the transactions contemplated by this Agreement, and thatup to an aggregate maximum amount of eighteen million dollars ($18,000,000), without these agreements, Parent would not have entered into which amount shall be credited against any Company Termination Fee (if any) that subsequently becomes payable to Parent. (c) Notwithstanding anything to the contrary set forth in this Agreement. The , but subject to Section 9.9, Parent’s right to receive payment from the Company acknowledges that its obligation to pay to Parent any amounts due of the Company Termination Fee pursuant to this Section 7.2 is not subject 8.3(a), together with any costs and Expenses and interest payable pursuant to Section 8.3(b) and Section 8.3(d), in circumstances where the Company Required Vote Termination Fee is payable pursuant to Section 8.3(a)(i), Section 8.3(a)(ii) or Section 8.3(a)(iii), shall constitute the sole and exclusive remedy (in circumstances where the Company Termination Fee is payable) of Parent and Acquisition Sub against the Company and its Subsidiaries and any other shareholder vote being obtainedof their respective former, current or future general or limited partners, stockholders, members, managers, directors, officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”) for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or for any breach or failure to perform hereunder, and upon payment of such amount (in circumstances where the Company Termination Fee is payable), none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement (except that the Company shall also be obligated with respect to Section 8.7). While Parent may pursue both a grant of specific performance in accordance with Section 9.9 and the payment of the Company Termination Fee, under no circumstances shall Parent be permitted or entitled to receive both a grant of specific performance that results in the Closing occurring and the Company Termination Fee.

Company Termination Fees. (i) If this Agreement is terminated (iA) by Parent pursuant to Section 10.01(c)(i) or Section 10.01(c)(iii) or (B) by the Company pursuant to Section 7.1(d10.01(d)(i), then the Company shall pay to Parent or, if designated by Parent, a direct or indirect wholly owned Subsidiary of Parent (the “Parent Fee Designee”), by way of compensation, $78,600,000 (the “Company Termination Fee”) within two Business Days after the date of the termination of the Agreement (in the case of any such termination by Parent) or prior to, and as a condition precedent to, the termination of the Agreement (in the case of any such termination by the Company). (ii) by Parent pursuant to Section 7.1(e) or (iii) If this Agreement is terminated by Parent or the Company pursuant to Section 7.1(c10.01(b)(iii) at a time when Parent had the right to terminate pursuant to Section 10.01(c)(i), Section 7.1(f) then the Company shall pay to Parent or Section 7.1(g)the Parent Fee Designee, as applicable, by way of compensation, the Company shall promptly, and in any event Termination Fee within two (2) Business Days after the date of such termination, pay Parent termination of the Company Termination Fee by wire transfer of immediately available funds; provided, however, that Agreement (in the case of any such termination by Parent) or prior to, and as a condition precedent to, the termination of the Agreement (in the case of any such termination by the Company). (iii) If this Agreement is terminated by Parent or the Company pursuant to Section 10.01(b)(iii), other than in the circumstances referred to in Section 10.03(a)(ii), and in addition, if (A) prior to the Company Shareholder Meeting but after the date of this Agreement, a bona fide Company Acquisition Proposal shall have been publicly made (provided that for purposes of this clause (iii) above: (A) such payment and the term “Qualifying Company Acquisition Proposal”, each reference to “15% or more” in the definition of Company Acquisition Proposal shall be made only if following the date hereof and prior deemed to termination of this Agreement, there has been publicly announced be a Competing Transaction reference to “more than 50%”) (or, in the alternative, but solely with respect to termination pursuant to Section 7.1(f) or Section 7.1(g), there has been made to the Company or the Company Board of Directors a proposal regarding a Competing Transaction, whether or not publicly announced) and (1) within twelve (12) months following the termination of this Agreement a “Qualifying Company Acquisition is consummated or (2) within twelve (12) months following the termination of this Agreement the Company enters into an Acquisition Agreement with respect to a Company AcquisitionProposal”), and (B) within 12 months following the date of such payment termination, the Company shall be made promptlyhave entered into a definitive agreement with respect to, but in no event later than or consummated a transaction relating to, a Qualifying Company Acquisition Proposal, then the Company shall pay to Parent or the Parent Fee Designee, as applicable, by way of compensation, an amount equal to the Company Termination Fee within two (2) Business Days, Days after the consummation first date on which the Company enters into such definitive agreement or consummates such transaction. (iv) If this Agreement is terminated by Parent or the Company pursuant to Section 10.01(b)(i) and (A) prior to the date of such Company Acquisition or termination but after the entering into date of such Acquisition Agreement. The Company acknowledges that the agreements contained in this Section 7.2 are an integral part of the transactions contemplated by this Agreement, a Qualifying Company Acquisition Proposal shall have been publicly made, and that(B) within 12 months following the date of such termination, without these agreements, Parent would not the Company shall have entered into this Agreement. The a definitive agreement with respect to or consummated a Qualifying Company acknowledges that its obligation to Acquisition Proposal, then the Company shall pay to Parent any amounts due or the Parent Fee Designee, by way of compensation, the Company Termination Fee within two Business Days after the first date on which the Company enters into such definitive agreement or consummates such transaction; provided that the Company shall not be required to pay the Company Termination Fee under this Section 10.03(a)(iv) if, at the time this Agreement is terminated pursuant to this Section 7.2 10.01(b)(i), (x) the condition set forth in Section 9.01(a) is satisfied and (y) the conditions set forth in Section 9.01(f) or Section 9.01(g) are not subject to satisfied (and the Company Required Vote or any other shareholder vote being obtainedhas complied with its obligations under Section 8.01 in all material respects). (v) In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.