Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement. (i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following: (1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal; (2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or (3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d). (ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal. (iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c). (c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement (First Community Bancorp /Ca/), Merger Agreement (Community Bancorp Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful or intentional breach of this Agreement.
(ib) The Company shall agrees to pay Parent a termination fee, representing liquidated damages, fee in immediately available funds (in recognition of the fees and expenses incurred to date by Parent in connection with the matters contemplated hereby) of $9,100,000 26,000,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the followingif this Agreement is terminated:
(1i) in the event that (A) an by Parent or the Company as permitted by Section 8.2(b), (B) after the date of this Agreement and prior to the Company Stockholders Meeting, a third party has made a bona fide written Acquisition Proposal shall have that has been made publicly disclosed and not publicly withdrawn prior to the Company Stockholders Meeting and (C) within nine months of such termination the Company or any of its stockholders or any Person Subsidiaries shall have publicly announced an intention (whether entered into any acquisition agreement or not conditional) to make an consummated any Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure purposes of the Merger foregoing clause the term “Acquisition Proposal” has the meaning assigned to such term in Section 6.2(d) except that the references to “20%” in the definition are deemed to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposalreferences to “50%”);
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
(3iii) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d8.4(a).
(ii) Any . The Termination Fee required by this Section 8.05(b) shall be paid promptlypromptly by the Company, but in no event later than than: (x) two Business Days business days after the first to occur of the execution of an acquisition agreement or the consummation of the Acquisition Proposal, in the case of clause (i) above; (y) on the date of terminationtermination of this Agreement in the case of clause (ii) above; provided that and (z) two business days after termination of this Agreement in the case of clause (iii) above. The Company’s payment shall be the sole and exclusive remedy of Parent and Merger Sub against the Company and any of its Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) . The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 2 contracts
Samples: Merger Agreement (Usf Corp), Merger Agreement (Yellow Roadway Corp)
Effect of Termination and Abandonment. (a) In Except as provided in Section 9.5(b) and Section 9.5(c), in the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto Party (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in this Agreement to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from fraud or any willful breach Willful and Material Breach of this Agreement and (ii) the provisions set forth in Section 7.11, this Section 9.5, Article X and the Confidentiality Agreement shall survive the termination of this Agreement.
(b) In the event that:
(i) The (A) this Agreement is terminated (I) by either the Company or Parent pursuant to Section 9.2(a), (II) by either the Company or Parent pursuant to Section 9.2(b) or (III) by Parent pursuant to Section 9.4(b) due to a breach by the Company of Section 7.2; and (B) (I) a bona fide Company Acquisition Proposal shall have been (1) made known to the Special Committee or publicly made or disclosed and (2) not withdrawn (which withdrawal shall be public if such Company Acquisition Proposal has been publicly made or disclosed) prior to the earlier of the date of the Stockholders Meeting (including any adjournment, recess or postponement thereof) and the time of termination of this Agreement and (II) concurrently with or within twelve (12) months of such termination, the Company shall have consummated a Company Acquisition Proposal or entered into an Alternative Company Acquisition Agreement relating to a Company Acquisition Proposal (whether or not, in each case, such Company Acquisition Proposal is the same one as the Company Acquisition Proposal referred to in clause (B)(I)); provided that, for purposes of clause (B) of this Section 9.5(b)(i), references to “fifteen percent (15%)” in the definition of “Company Acquisition Proposal” shall be deemed to be references to “fifty percent (50%)”; or
(ii) this Agreement is terminated by Parent pursuant to Section 9.4(a); then the Company shall pay to Parent (or its designee(s)), by wire transfer of same-day funds, a termination fee, representing liquidated damages, fee of $9,100,000 35,000,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent (x) in the event case of any Section 9.5(b)(ii), no later than two (2) Business Days after the date of such termination or (y) in the case of Section 9.5(b)(i), immediately prior to or substantially concurrent with the last to occur of the followingevents set forth in Section 9.5(b)(i). It is understood and agreed that in no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) In the event that:
(1i) in the event that (A) an this Agreement is terminated (I) by either the Company or Parent pursuant to Section 9.2(a), (II) by either the Company or Parent pursuant to Section 9.2(c) or (III) by the Company pursuant to Section 9.3(b) due to a breach by Parent of Section 7.3; and (B) (I) a bona fide Parent Acquisition Proposal shall have been (1) made known to Parent or publicly made or disclosed and (2) not withdrawn (which withdrawal shall be public if such Parent Acquisition Proposal has been publicly made or disclosed) prior to the Company earlier of the date of the Parent Stockholders Meeting (including any adjournment, recess or any postponement thereof) and the time of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company termination of this Agreement and (BII) thereafter this Agreement is terminated by either Parent concurrently with or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of such termination, Parent shall have consummated a Parent Acquisition Proposal or entered into an Alternative Parent Acquisition Agreement relating to a Parent Acquisition Proposal (whether or not, in each case, such Parent Acquisition Proposal is the termination same one as the Parent Acquisition Proposal referred to in clause (B)(I)); provided that, for purposes of clause (B) of this AgreementSection 9.5(c)(i), references to “fifteen percent (15%)” in the Company consummates an definition of “Parent Acquisition Proposal;” shall be deemed to be references to “fifty percent (50%)”; or
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a9.3(a); or
then Parent shall pay to the Company (3or its designee(s)), by wire transfer of same-day funds, a termination fee of $100,000,000 (the “Parent Termination Fee”) this Agreement is terminated by Parent pursuant to (x) in the case of Section 8.04(b) or Section 8.04(d9.5(c)(ii).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two (2) Business Days after the date of termination; provided such termination or (y) in the case of Section 9.5(c)(i), immediately prior to or substantially concurrent with the last to occur of the events set forth in Section 9.5(c)(i). It is understood and agreed that with respect in no event shall Parent be required to clause (2) above, pay the Parent Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposalon more than one occasion.
(iiid) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be Each of the sole remedy for Company and Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (bSection 9.5(b) above and Section 9.5(c) are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, the Parties would not have entered enter into this Agreement and the damages resulting from termination of this Agreement under circumstances where a Termination Fee or a Parent Termination Fee is payable are uncertain and incapable of accurate calculation and, therefore, each of the Termination Fee payable pursuant to Section 9.5(b) and the Parent Termination Fee payable pursuant to Section 9.5(c) is not a penalty but rather constitutes an amount akin to liquidated damages in a reasonable amount that will compensate Parent or the Company, as applicable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Mergers and the other transactions contemplated by this Agreement. Accordingly, and that such amounts do not constitute a penalty. If if (i) the Company fails to promptly pay the Termination Fee due by it pursuant to Section 9.5(b) or (ii) Parent any amounts fails to promptly pay the Parent Termination Fee due under paragraph (bby it pursuant to Section 9.5(c) above within and, in order to obtain such payment Parent or the time period specified thereinCompany, as applicable, commences a Proceeding that results in a judgment against the Company or Parent, as applicable, for the Termination Fee set forth in Section 9.5(b) or the Parent Termination Fee set forth in Section 9.5(c), the Company or Parent, as applicable, shall pay all to Parent or the Company, as applicable, their costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountsProceeding, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed set forth in The Wall Street Journal Journal, Eastern Edition, in effect on the date such payment was required to be mademade from the date such payment was required to be made through the date of payment.
(e) In the event that the Termination Fee is paid to Parent in circumstances in which such fee is payable pursuant to Section 9.5(b), payment of the Termination Fee, together with any costs and expenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of Parent and its Related Persons against the Company and its Related Persons (the “Company Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Mergers or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of the Company or any Company Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. The provisions of this Section 9.5(e) are intended to be for the benefit of, and shall be enforceable by, each of the Company Related Persons.
(f) In the event that the Parent Termination Fee is paid to the Company in circumstances in which such fee is payable pursuant to Section 9.5(c), payment of the Parent Termination Fee, together with any costs and expenses and interest payable pursuant to Section 9.5(d), shall be the sole and exclusive remedy of the Company and its Related Persons against Parent and its Related Persons (the “Parent Related Persons”) for any cost, expense, loss, damage, liability or obligation suffered as a result of the failure of the Mergers or the other transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of such amount none of Parent or any Parent Related Persons shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement. The provisions of this Section 9.5(f) are intended to be for the benefit of, and shall be enforceable by, each of the Parent Related Persons.
Appears in 2 contracts
Samples: Merger Agreement (BridgeBio Pharma, Inc.), Merger Agreement (BridgeBio Pharma, Inc.)
Effect of Termination and Abandonment. (a) In Except as provided in Section 8.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or affiliates); provided, officershowever, employeesand notwithstanding anything herein to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful and intentional material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (A) thirty (30) business days prior to, with respect to any termination pursuant to Section 8.2(a), the date of termination, and (B) at least ten (10) business days prior to, with respect to termination pursuant to Section 8.2(c), the date of the termination or expiration of the Offer) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.(2)(a) [Drop Dead] or 8.2
(xc) [No Stockholder Approval], (ii) this Agreement is terminated either (A) by Parent pursuant to Section 8.02(a8.4, or (B) for failure of the Merger to be consummated by the Company pursuant to Sections 8.2(a) or 8.2(c) and, on or prior to the date specified therein and of such failure is the result of the knowing action or inaction of the Company termination, any event giving rise to Parent’s right to terminate under Section 8.4 shall have occurred or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2iii) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(38.3(b) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) [Fiduciary Out], then the Company shall be paid promptly, but in no event later than two Business Days ten (10) days after the date of such termination, pay to Parent a termination fee of $900,000 (the “Termination Fee”); provided that and the Company shall, promptly, but in no event later than ten (10) business days after being notified of such by Parent, pay all of the documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent or Merger Sub in connection with respect to clause (2) abovethis Agreement, the Ancillary Agreements and the Transactions up to a maximum amount of $225,000; provided, however, that no Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect Parent pursuant to clause (i) of this paragraph (b) unless and until within 12 months of such termination (1) above, the Termination Fee Company or any of its Subsidiaries shall be paid prior to the Company’s entering have entered into an Alternative Acquisition Agreement with respect to, or consummatingshall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company (2) there shall have failed to oppose such been consummated an Acquisition Proposal (substituting in both instances “50%” for “15%” in the definition of “Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy ”); provided that for Parent with respect to any breach purposes of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such agreements Parent would not termination, the Company or any of its Subsidiaries shall have entered into this Agreementan Alternative Acquisition Agreement (other than a confidentiality or standstill agreement) with respect to, and that such amounts do or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified thereinopposed, the Company shall pay all costs and expenses (including attorneys’ fees) incurred an Acquisition Proposal made by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment or on behalf of such amounts, together with interest on the amount Person or any of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madeits affiliates.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conmed Corp), Merger Agreement (Viking Systems Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than this Section 8.5 and Sections 5.3(c), 6.13 and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) that however, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of any representation, warranty, covenant or agreement contained in this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) this Agreement is terminated by the Company pursuant to Section 8.3(b) or (ii) an Acquisition Proposal shall have been made to the Company or any of its subsidiaries or any of its stockholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its subsidiaries and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xSection 8.2(a), 8.2(b), 8.4(a), 8.4(b)(i) Section 8.02(a) for failure or, in the case of the Merger to be consummated a willful breach of covenant or agreement by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(iiCompany, 8.4(b)(ii) and (C) within twelve (12) 12 months of the such termination of this Agreement, any Acquisition Proposal by a third party is consummated by the Company, then, in the case of (i) or (ii), the Company consummates an Acquisition Proposal;
(shall pay Parent a termination fee of $25,000,000 in same-day funds, together with interest accrued thereon at a rate equal to the prime rate, as announced by Citibank, N.A. from time to time, plus 2) this Agreement % during the period commencing on the date the termination fee is terminated by the Company first payable hereunder. The termination fee required to be paid pursuant to Section 8.03(a); or
subsection (3b)(i) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to Parent no later than (and as a condition to the effectiveness of) such termination of this Agreement; and provided further that with respect or such later date to clause which Parent elects to defer payment hereunder. The termination fee required to be paid pursuant to subsection (1b)(ii) above, the Termination Fee shall be paid prior by the Company to Parent not later than concurrently with such consummation of such Acquisition Proposal and such consummation shall be preceded by at least three business days advance notice by the Company to Parent. Notwithstanding the foregoing, (A) Parent may elect, by notice to the Company’s entering into , to defer the payment of the termination fee from time to time for a period or periods of up to an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days aggregate of twelve months after the date such fee would otherwise be payable and (B) the termination fee shall cease to be payable immediately following notice from any exercise by Parent if of the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be Option under the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)Option Agreement.
(c) The Company acknowledges that the agreements contained in paragraph (bSection 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to Section 8.5(b) and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within commences a suit which results in a judgment against the time period specified thereinCompany for the fee set forth in this Section 8.5, the Company shall pay all to Parent its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madesuit.
Appears in 2 contracts
Samples: Merger Agreement (Interpublic Group of Companies Inc), Merger Agreement (Nfo Worldwide Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII8, this Agreement (other 50 than as set forth in this Section 8.05 or Sections 5.02(c), 6.10, 9.04, 9.08 and 9.09) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) as the result of a failure of performance or Section 8.04(d)breach of the Company, then the Company shall pay Parent an amount, not to exceed $5,000,000, equal to the documented Expenses incurred by Parent in connection with this Agreement.
(ii) Any Termination Fee required In the event that this Agreement is terminated pursuant to the provisions hereof by either Parent or the Company for any reason, other than a termination pursuant to (x) Section 8.01, (y) Section 8.02 where the termination did not result from a failure of performance or breach by the Company or (z) Section 8.03(b) or 8.04(b) where the termination did not result from a failure to satisfy the conditions specified in paragraphs (a) through (g) of Annex A (unless, in the case of paragraphs (a) and (b) of Annex A, such termination resulted from the actions of any antitrust regulatory authority or, in the case of paragraph (d), such termination resulted from the occurrence of an event specified in clause (iv) thereof), the Company shall pay Parent, prior to such termination if termination is by the Company and within two business days after such termination if termination is by Parent, by wire transfer of immediately available funds, an amount equal to $25,000,000 in order to reimburse Parent for the payment of the Funded Break-up Fee.
(iii) In the event that this Agreement is terminated by (A) the Company pursuant to Section 8.05(b8.03(a), (B) shall be paid promptly, but in no event later than two Business Days after Parent pursuant to Section 8.04(a) or (C)(1) Parent pursuant to Section 8.04(b) as a result of a willful failure or breach by the date of termination; provided that with respect to clause Company and (2) aboveat the time of such willful failure or breach there shall have been an Acquisition Proposal involving the Company (which proposal shall not have been withdrawn prior to the time of such termination) and (3) within 6 months of such termination, an Acquisition Proposal by a third party, or within 9 months of such termination, an Acquisition Proposal by the Termination Fee shall party that made the Acquisition Proposal referred to in clause (C)(2) of this Section 8.05(b)(iii) is entered into, agreed to or consummated by the Company, in addition to any amount to be paid by the Company to Parent pursuant to Section 8.05(b)(ii), the Company shall pay to Parent a termination fee of $25,000,000 by wire transfer of immediately available funds; such 51 termination fee to be paid to Parent (x) prior to termination of this Agreement; and provided further that Agreement by the Company in the case of clause (A) of this Section 8.05(b)(iii), (y) within two business days after termination by Parent in the case of clause (B) of this Section 8.05(b)(iii) or (z) on the earlier of the date an agreement is entered into with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or an Acquisition Proposal is agreed and consummated in the case of clause (C) of this Section 8.05(b)(iii).
(iv) In the event that (A) this Agreement is terminated by Parent or the Company pursuant to Section 8.02(ii) or by Parent pursuant to Section 8.04(b) as a result of the failure to satisfy the Minimum Condition, (B) at the time of such termination there shall have been an Acquisition Proposal involving the Company (which proposal shall not have been withdrawn prior to the time of such termination) and (C) within two Business Days following notice from 6 months of such termination, an Acquisition Proposal by a third party, or within 9 months of such termination, any Acquisition Proposal by the party that made the Acquisition Proposal referred to above in clause (B) of this Section 8.05(b)(iv) is entered into, agreed to or consummated by the Company, in addition to any amount to be paid by the Company to Parent if pursuant to Section 8.05(b)(ii), the Company shall have failed pay to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be Parent a termination fee of $25,000,000 by wire transfer of immediately available funds on the sole remedy for Parent earlier of the date an agreement is entered into with respect to any breach of any covenant an Acquisition Proposal or agreement giving rise to such payment, subject to Section 8.05(c)an Acquisition Proposal is agreed and consummated.
(c) The (i) In the event that this Agreement is terminated by the Company acknowledges that pursuant to Section 8.03(b) as the agreements contained in paragraph (b) above are an integral part result of the transactions contemplated by this Agreementfailure of performance or breach of Parent, and that without such agreements then Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If shall pay the Company fails an amount not to promptly pay Parent any amounts due under paragraph (b) above within exceed $5,000,000 equal to the time period specified therein, documented Expenses incurred by the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madethis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Georgia Pacific Corp), Merger Agreement (Unisource Worldwide Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.5 and in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Representatives), except (i) as ; provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of (1) from any liability or for damages to any other party resulting from fraud or any willful prior breach by such party in any material respect of its covenants or agreements set forth in this Agreement that shall have proximately contributed to the failure of the Mergers to be consummated, and the aggrieved party shall be entitled to all rights and remedies available at law or in equity or (2) from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 8.5(b) or the Parent Reimbursement Amount pursuant to Section 8.5(c).
(b) If this Agreement is terminated (i) by Parent pursuant to Section 8.4(a) (Change in Recommendation) or (ii) by the Company pursuant to either (x) Section 8.2(b) (Stockholder Vote) at a time when Parent had the right to terminate pursuant to Section 8.4(a) (Change in Recommendation) or (y) Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two business days after such termination in the case of clause (i) or concurrently with such termination in the case of clause (ii), pay Parent a fee equal to $1,725,000,000 (the “Company Termination Fee”). In addition, if (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.2(a) (Termination Date) or 8.2(b) (Stockholder Vote) or (B) by Parent pursuant to Section 8.4(b) (Company Breach), (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement.
(i) The Company shall pay , a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an bona fide Acquisition Proposal shall have been publicly made to the Company or any of its Subsidiaries or shall have been made directly to the Company’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with respect to the Company (a “Company Acquisition Proposal”) or, in the case of termination by Parent pursuant to Section 8.4(b) (Company Breach), a Company Acquisition Proposal shall have been made publicly or privately to the Company, (iii) in the case of a termination pursuant to Section 8.2(a) (Termination Date), the conditions set forth in Sections 7.1(c) (Governmental Consents), 7.1(d) (Law; Order) and 7.2(c) (Government Approvals) shall have been satisfied, and (Biv) thereafter this Agreement is terminated by within 12 months after the date of a termination in either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger cases referred to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or in clauses (y) Section 8.02(b)(iii)(A) and (Ci)(B) within twelve (12) months of the termination of this Agreementsentence of Section 8.5(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal;, then the Company shall pay the Company Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 8.5(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), except that the references to “15% or more” shall be deemed to be references to “50% or more”. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(2c) If this Agreement is terminated by the Company or Parent (i) pursuant to Section 8.03(a)8.2(c) (Law; or
Final and Non-Appealable Order) as the result of any applicable Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or an Order imposed by a Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Laws, Communications Laws, Utilities Laws or Foreign Regulatory Laws (3each, a “Governmental Regulatory Entity”) this Agreement is terminated by Parent with respect to an Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or (ii) pursuant to Section 8.04(b8.2(a) (Termination Date) and, at the time of such termination, one or more of the conditions set forth in Section 7.1(c) or Section 8.04(d7.1(d) (as the result of any applicable Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or an Order imposed by a Governmental Regulatory Entity with respect to an Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law) or Section 7.2(c) was not satisfied and, in the case of each of (i) or (ii).
, at the time of such termination (A) all of the other conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, provided that such conditions were then capable of being satisfied if the Closing had taken place) and (B) the Company is not in breach in any material respect of its obligations under this Agreement in any manner that shall have proximately contributed to the imposition of the Order referred to in clause (i) or the failure of the conditions referred to in clause (ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptlyabove, but as applicable, then Parent shall, within two business days after such termination, pay the Company in respect of its time and expenses an amount equal to $500,000,000 (the “Parent Reimbursement Amount”). In no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall Parent be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including pay the filing of any lawsuit, taken to collect payment of such amounts, together with interest Parent Reimbursement Amount on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be mademore than one occasion.
Appears in 2 contracts
Samples: Merger Agreement (Time Warner Inc.), Merger Agreement (At&t Inc.)
Effect of Termination and Abandonment. (a) If this Agreement is terminated by the Company or Parent pursuant to Section 8.2(b), 8.3(a) or 8.4(a), and (x) prior to such termination, a proposal with respect to a Transaction shall have been made, and (y) within two (2) years after such termination, either the Company enters into any agreement with respect to a Transaction whereby any third party shall acquire beneficial ownership of more than 50% of the Company's (i) outstanding shares of voting stock or (ii) assets (measured by fair market value), then the Company shall pay Parent, by wire transfer of immediately available funds, a fee (the "Termination Fee") of Five Million Dollars ($5,000,000) within fifteen (15) business days after the execution of such agreement or the consummation of such acquisition (whichever shall first occur).
(b) The Company acknowledges that the agreements contained in this Section 8.5 are an integral part of the transactions contemplated in this Agreement and that the Termination Fee constitutes liquidated damages and is not a penalty. If the Company fails to promptly pay the Termination Fee when due and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company, the Company shall reimburse Parent for its costs and expenses (including attorneys' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee at the prime rate, as then quoted in The Wall Street Journal, from the date the Termination Fee was required to be paid.
(c) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII8, this Agreement all obligations of the parties hereto shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)terminate, except (i) as provided the obligations of the parties set forth in this Section 9.01 8.5 and Section 6.9, (ii) that no the provisions of Sections 9.3, 9.6, 9.9, 9.12 and 9.13, and (iii) the Confidentiality Agreement previously executed between the Company and Parent (the "Confidentiality Agreement"). Moreover, in the event of termination of this Agreement pursuant to Section 8.3 or 8.4, nothing herein shall prejudice the ability of the nonbreaching party from seeking damages, after taking into account payment of the Termination Fee, if such termination shall relieve fee has been paid, from any other party hereto of any liability or damages resulting from for any willful breach of this Agreement.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including without limitation, attorneys' fees and the filing of right to pursue any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts remedy at the publicly announced prime rate of interest printed law or in The Wall Street Journal on the date such payment was required to be madeequity.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Advanced Energy Industries Inc), Agreement and Plan of Reorganization (Engineering Measurements Co)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 8.5(b) and Section 9.1 below, in the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto Party (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in this Agreement to the contrary, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto Party of any liability or damages to any other Party resulting from any willful breach Willful Breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat this Agreement is terminated:
(1i) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a8.2(b) (Superior Proposal); or, then immediately prior to, or concurrent with, such termination,
(3ii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.2(b) or Section 8.04(d(Requisite Company Vote).;
(iiiii) Any Termination Fee required by this Parent pursuant to Section 8.05(b8.3(e) shall be paid (Company Material Breach) (as a result of a breach of Section 6.2 (Acquisition Proposals; Change of Recommendation)) and within twelve months of such termination, the Company enters into a definitive agreement to consummate such Acquisition Proposal and subsequently consummates the transactions contemplated by such Acquisition Proposal, then promptly, and in no event later than two Business Days, after the consummation of such transactions;
(iv) by Parent pursuant to 8.3(a) (Company Change of Recommendation), or (v) by Parent, pursuant to Section 8.3(d) (Company Written Consent), then promptly, but in no event later than two Business Days after the date of any such termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed pay the termination fee of $55,000,000 (the “Company Termination Fee”), to oppose such Acquisition Proposal.
Parent in each case by wire transfer of immediately available cash funds and shall also pay all of the reasonable and documented out-of-pocket expenses, including those of the Exchange Agent, incurred by Parent or Merger Sub in connection with this Agreement and the Transactions (iii) Notwithstanding any the “Parent Expense Reimbursement”). In no event shall the Company be required to pay the or the Parent Expense Reimbursement or the Company Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)on more than one occasion.
(c) The Company acknowledges Parties hereby acknowledge and agree that the agreements contained in paragraph (b) above this Section 8.5 are an integral part of the transactions contemplated by this AgreementTransactions, and that that, without such agreements Parent these agreements, the Parties would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay Parent the amount due pursuant to this Section 8.5, and, in order to obtain such payment, any amounts due under paragraph (b) above within of Parent, Holdco or the time period specified thereinMerger Subs commences a suit that results in a judgment against the Company for the fees set forth in this Section 8.5 or any portion of such fees, the Company shall pay all to Parent, Holdco or the applicable Merger Sub its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed in published from time to time by The Wall Street Journal Journal, Eastern Edition, as the “prime rate” at large U.S. money center banks in effect on the date such payment was required to be mademade from the date such payment was required to be made through the date of payment. Notwithstanding anything in this Agreement to the contrary, the Parties hereby acknowledge and agree that in the event that any termination fee becomes payable by, and is paid by, the Company and accepted by Parent, such fee shall be Parent’s sole and exclusive remedy for monetary damages pursuant to this Agreement, provided, however, no such payment shall relieve or limit the Company of any liability or damages to Parent resulting from any Willful Breach of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Golden Nugget Online Gaming, Inc.), Merger Agreement (DraftKings Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE VIII , this Agreement shall become void and of no effect (except for Section 6.7(b), this Section 8.6 and ARTICLE IX) with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsstockholders, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates), except (i) as provided in that, subject to the Reverse Termination Fee being paid pursuant to Section 9.01 and (ii) that no such termination 8.6(g), nothing herein shall relieve the Company, Parent or Merger Sub from liability for any party hereto of any liability intentional breach hereof or damages resulting from any willful breach of this Agreementfraud prior to such termination.
(ib) The If this Agreement is terminated by Parent pursuant to Section 8.4(a) or Section 8.4(b), then the Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable (by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) funds), within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
two (2) business days after such termination, a non-refundable fee in an amount equal to $250,000,000 (“Termination Fee”).
(c) If this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or, then the Company shall pay to Parent (by wire transfer of immediately available funds), at or prior to such termination, the Termination Fee.
(3d) If this Agreement is terminated (i) by Parent pursuant to Section 8.04(b8.4(c) or (ii) by the Company or Parent pursuant to Section 8.2(a) (and the conditions set forth in Section 7.1(b) and Section 7.1(c) shall have been satisfied as of the End Date) or Section 8.04(d).
8.2(c) hereof and, in the case of clauses (i) and (ii) Any Termination Fee required by this immediately above, (A) prior to such termination (in the case of termination pursuant to Section 8.05(b8.2(a) or 8.4(c)) or the Stockholders Meeting (in the case of termination pursuant to Section 8.2(c)), a Takeover Proposal shall be paid promptlyhave been publicly disclosed and not withdrawn (in the case of Section 8.2(c)) or communicated to the Company, but the Company Board or been publicly disclosed and not withdrawn (in no event later than two Business Days after the case of Sections 8.2(a) or 8.4(c)), and (B) within twelve (12) months following the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to such termination of this Agreement; and provided further that Agreement the Company shall have (x) entered into a definitive agreement with respect to clause to, (1y) above, the Termination Fee shall be paid prior approved or recommended to the Company’s entering into an Alternative Acquisition Agreement stockholders, or consummating(z) consummated, approving a Takeover Proposal (in each case, whether or recommending an Acquisition not such Takeover Proposal is the same as the original Takeover Proposal made, communicated or within two Business Days following notice from Parent if publicly announced), then the Company shall have failed pay to oppose Parent (by wire transfer of immediately available funds), upon the earlier of the Company entering into the agreement with respect to such Acquisition ProposalTakeover Proposal or the consummation of such transaction, the Termination Fee. For purposes of this Section 8.6(d), all references in the definition of Takeover Proposal to 20% shall be deemed to be references to “a majority.” The parties acknowledge and agree that in no event shall the Company be obligated to pay the Termination Fee on more than one occasion. The provisions of this Section 8.6(d) shall not apply if the provisions of Section 8.6(g) are applicable.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(ce) The Company acknowledges and hereby agrees that the agreements contained in paragraph (b) above provisions of this Section 8.6 are an integral part of the transactions contemplated by this AgreementAgreement (including the Merger), and that that, without such agreements provisions, Parent and Merger Sub would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails shall fail to promptly pay Parent any in a timely manner the amounts due under paragraph (b) above within pursuant to this Section 8.6, and, in order to obtain such payment, Parent makes a claim against the time period specified thereinCompany that results in a judgment against the Company, the Company shall pay all to Parent the reasonable and documented out-of-pocket costs and expenses of Parent (including its reasonable attorneys’ feesfees and expenses) incurred by Parent in connection with such suit, together with interest on the amounts set forth in this Section 8.6 at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made plus 1% per annum. Any interest payable hereunder shall be calculated on a daily basis from the date such amounts were required to be paid until (but excluding) the date of actual payment, and on the basis of a 360-day year.
(f) If this Agreement is terminated and the Termination Fee is payable to Parent as a result thereof, in addition to the payment of the Termination Fee, the Company shall reimburse Parent and Merger Sub for all expenses in connection with this Agreement and the transactions contemplated hereby, up to a maximum of $10,000,000 incurred by Parent and Merger Sub (the “Expense Fee”) which Expense Fee shall be payable at the same time as the Termination Fee. For purposes of the preceding sentence, expenses means all reasonable and documented out-of-pocket expenses (including all reasonable fees and expenses of outside counsel, accountants, financing sources, investment bankers, experts and consultants) incurred in connection with or related to the due diligence, authorization, preparation, negotiation, execution and performance of this Agreement, the obtaining of the financing for the Merger, and all other matters related to the consummation of the Merger.
(g) In the event that (i) this Agreement is terminated by Parent or (ii) the Merger has not been consummated by the End Date, except in either case under circumstances where the Board of Directors of Parent has determined in accordance with its good faith business judgment that Parent is permitted under this Agreement to terminate this Agreement or is not required to consummate the Merger prior to the End Date, then Parent shall promptly following receipt of written notice from the Company requesting such payment, pay the Company a non-refundable fee equal to $200,000,000 (the "Reverse Termination Fee"), payable by wire transfer of same day funds to an account designated in writing to Parent by the Company. The Reverse Termination Fee shall be the Company's exclusive remedy for damages in circumstances where it is applicable (unless in any actionsuch circumstance it is requested in accordance with the preceding sentence but not paid, in which event the Company shall be entitled to elect to seek either the Reverse Termination Fee or, subject to the last sentence of Section 9.8, damages (but not both)); and, once paid, the Company shall have no right to specific performance under Section 9.9, it being understood that if the Merger is not consummated because Parent has not obtained the Requisite Transaction Funds or under circumstances where the Board of Directors of Parent has not made the foregoing determination, the Company may elect to seek specific performance under Section 9.9 in lieu of requesting payment of the Reverse Termination Fee or seeking damages if the Reverse Termination Fee is requested but not paid. For the avoidance of doubt, (i) the Reverse Termination Fee will not be payable if the Merger is not consummated as a result of antitrust related matters, including Parent's breach of its obligations under Section 6.5 with respect to using its reasonable best efforts to obtain antitrust clearance for the filing of any lawsuitMerger, taken to collect payment but, in the event of such amountsbreach, the Company shall be entitled to seek damages or specific performance under Section 9.9, and (ii) if a determination by the Board of Directors of Parent referred to in the first sentence of this paragraph is shown by final judicial determination to not have been a good faith business judgment (including, for example, if made under circumstances where the Merger is not consummated because Parent has not obtained the Requisite Transaction Funds), the Company shall be entitled to elect to be paid the Reverse Termination Fee in accordance with the first sentence of this paragraph.
(h) Parent and Merger Sub acknowledge and hereby agree that the provisions of this Section 8.6 are an integral part of the transactions contemplated by this Agreement (including the Merger), and that, without such provisions, the Company would not have entered into this Agreement. If Parent shall fail to pay in a timely manner the amounts due pursuant to this Section 8.6, and, in order to obtain such payment, the Company makes a claim against Parent that results in a judgment against Parent, Parent shall pay to the Company the reasonable and documented out-of-pocket costs and expenses of the Company (including its reasonable attorneys' fees and expenses) incurred in connection with such suit, together with interest on the amount of any such unpaid amounts set forth in this Section 8.6 at the publicly announced prime rate of interest printed Citibank, N.A. in The Wall Street Journal effect on the date such payment was required to be mademade plus 1% per annum. Any interest payable hereunder shall be calculated on a daily basis from the date such amounts were required to be paid until (but excluding) the date of actual payment, and on the basis of a 360-day year.
(i) If this Agreement is terminated and the Reverse Termination Fee is payable to the Company as a result thereof, in addition to the payment of the Termination Fee, the Parent shall reimburse the Company for all expenses in connection with this Agreement and the transactions contemplated hereby, up to a maximum of $10,000,000 incurred by the Company (the “Company Expense Fee”) which Company Expense Fee shall be payable at the same time as the Reverse Termination Fee. For purposes of the preceding sentence, expenses means all reasonable and documented out-of-pocket expenses (including all reasonable fees and expenses of outside counsel, accountants, financing sources, investment bankers, experts and consultants) incurred in connection with or related to the due diligence, authorization, preparation, negotiation, execution and performance of this Agreement, the preparation, printing, filing and mailing of the Proxy Statement, the solicitation of the Requisite Company Vote, and all other matters related to the consummation of the Merger.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event that this Agreement is terminated by the Company pursuant to Sections 7.3(a) or 7.3(b) or by Watson pursuant to Section 7.4(a) and the Company enters into an agreement or an understanding with respect to an Alternative Proposal within nine (9) months of the date of such termination and thereafter, consummates such transaction, then the Company shall promptly pay Watson a fee in an amount equal to $3,000,000. If (x) the Company terminates this Agreement pursuant to Section 7.3(a) or Watson terminates this Agreement pursuant to Section 7.4(a)(i); and (y) the Company does not enter into an agreement or an understanding with respect to an Alternative Proposal within nine (9) months after the termination of this Agreement or does not consummate such transaction within eighteen (18) months after the termination of this Agreement, the Company shall reimburse Watson for all actual out-of-pocket costs and expenses incurred by Watson in connection with this Agreement and the consummation and negotiation of the transactions contemplated hereby, including, without limitation, legal, professional and service fees and expenses, which amount shall be payable by wire transfer of same day funds within twelve months from the date of termination of this Agreement. The Company acknowledges that the agreements contained in this Section 7.5(a) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Watson and Watson Sub would not enter into this Agreement. Accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 7.5(a), and, in order to obtain such payment, Watson or Watson Sub commences a suit which results in a final, non-appealable judgment against the Company for the fee set forth in this Section 7.5(a), the Company shall pay to Watson its costs and expenses (including attorneys' fees) incurred by Watson in connection with such suit, together with interest on the amount of the fee at the rate of 12% per annum.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, this Agreement all obligations of the parties hereto shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)terminate, except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any obligations of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company parties pursuant to (x) this Section 8.02(a) for failure 7.5 and the provisions of the Merger to be consummated by the date specified therein Sections 5.6 and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of 5.10, which obligations shall survive the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall become void and of no effect with no have any liability or further obligation of to any kind on the part of any other party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), hereunder except (i) as provided set forth in this Section 8.02 and Section 9.01 and (ii) that no such termination shall will not relieve any a breaching party hereto of any from liability or damages resulting from for any willful breach of any covenant, agreement, representation or warranty of this AgreementAgreement giving rise to such termination.
(b) In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Merger, the parties hereto agree that the Company shall pay to Parent a termination fee of $28.0 million (the "Termination Fee") in the manner set forth below if:
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g);
(ii) this Agreement is terminated by (A) Parent pursuant to Section 8.01(b), (B) by either Parent or the Company pursuant to Section 8.01(c), or (xC) by either Parent or the Company pursuant to Section 8.02(a8.01(e) for failure (other than by reason of any breach by Parent or the Merger Company, respectively), and in the case of any termination pursuant to be consummated by clause (A), (B) or (C) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the date specified therein and such failure is the result of the knowing action or inaction senior management of the Company or the Company Board (yor any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) Section 8.02(b)(ii) at any time after the date of this Agreement and prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of clause (C) within twelve (12) months ), or the date of the termination of this Agreement, in the Company consummates an Acquisition Proposal;case of clause (A) or (B); or
(2iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.01(h); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no . In the event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by become payable pursuant to Section 8.02(b)(i) or (ii), (x) the Company prior shall pay to Parent an amount equal to $5.0 million on the first Business Day following termination of this Agreement; , and provided further that (y) if within 18 months after such termination the Company or a Subsidiary of the Company enters into any agreement with respect to, or consummates, any Acquisition Transaction, the Company shall pay to Parent the Termination Fee (net of any payment made pursuant to clause (1x) above, ) on the date of execution of such agreement or consummation of the Acquisition Transaction. In the event the Termination Fee shall be paid prior become payable pursuant to Section 8.02(b)(iii), the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or Company shall pay to Parent the entire Termination Fee within two Business Days following notice from Parent if the Company date of termination of this Agreement. Any amount that becomes payable pursuant to this Section 8.02(b) shall have failed be paid by wire transfer of immediately available funds to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to an account designated by Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges and Parent agree that the agreements agreement contained in paragraph (b) above are of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, and that without such agreements agreement Parent would not have entered into this Agreement, Agreement and that such amounts do not constitute a penaltypenalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay Parent any the amounts due under paragraph (b) above within the time period periods specified therein, the Company shall pay all the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any actionaction in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime lending rate of interest printed prevailing during such period as published in The Wall Street Journal Journal, calculated on a daily basis from the date such payment was amounts were required to be made.paid until the date of actual payment. ARTICLE IX
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability Buyer, the Company, any of their respective Subsidiaries or further obligation any of any kind on the part of any party hereto (officers or directors of any of its directorsthem shall have any liability of any nature whatsoever hereunder, officersor in connection with the transactions contemplated hereby, employees, agents, legal and financial advisors or other representativesexcept that Section 6.3 (Press Releases), except 6.13 (iConfidentiality Agreement) as provided in and 9.5 (Expenses) and this Section 9.01 8.2 and (ii) that no such all other obligations of the parties specifically intended to be performed after the termination of this Agreement shall relieve survive any party hereto of any liability or damages resulting from any willful breach termination of this Agreement; provided, however, that, notwithstanding anything to the contrary herein, neither Buyer nor the Company shall be relieved or released from any liabilities or damages arising out of its willful and material breach of any provision of this Agreement or fraud.
(ib) The In the event this Agreement is terminated by Buyer pursuant to Section 8.1(f), the Company shall pay a termination fee, representing liquidated damages, of to Buyer an amount equal to $9,100,000 12,000,000 (the “Termination Fee”).
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Parent payable Section 8.1(e) or Section 8.1(b) due to the failure to obtain the approval of the Company’s stockholders required for the consummation of the Merger, and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to the Company Meeting (including any adjournment or postponement thereof) or prior to the date specified in Section 8.1(b), as applicable, and (ii) within 12 months of such termination, the Company shall have (x) consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(c), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%.”
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(c) as a result of an intentional breach by the Company and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Buyer or during the cure period therefor provided in Section 8.2(c) and (ii) within 12 months of such termination, the Company shall have (x) consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(d), all references in the definition of Acquisition Transaction to “20%” shall instead refer to “50%.”
(e) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be made not more than two Business Days after the date of the event giving rise to the obligation to make such payment. Any payments under this Section 8.2 shall be made by wire transfer of immediately available funds to an account specified designated by Parent Buyer. Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall constitute liquidated damages and not a penalty and shall be the sole remedy of Buyer in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the a termination of this AgreementAgreement pursuant to this Section 8.2; provided, however, that, notwithstanding anything to the contrary herein, the Company consummates an Acquisition Proposal;
(2) shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of any provision of this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d)fraud.
(iif) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by Buyer and the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges acknowledge that the agreements contained in paragraph (b) above this Section 8.2 are an integral part of the transactions contemplated by this AgreementAgreement and that, and that without such agreements Parent these agreements, Buyer would not have entered into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If if the Company fails promptly to promptly pay Parent any amounts amount due under paragraph (b) above within pursuant to this Section 8.2 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the time period specified thereinCompany for the amount set forth in this Section 8.2, the Company shall pay all Buyer its costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed (as reported in The Wall Street Journal or, if not reported therein, in another authoritative source) on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement (nor any of their respective officers, directors or agents) shall become void and of no effect with no have any liability or further obligation of to any kind on the part of any other party hereto hereunder except as set forth in subsections (or of any of its directors, officers, employees, agents, legal b) and financial advisors or other representatives), except (ic) as provided below and in Section 9.01 9.01, and (ii) except that no such termination shall not relieve any a party hereto of any from liability or damages resulting from for any willful breach of this Agreement. In the event of termination of this Agreement by either Parent or Company pursuant to Section 8.01 hereof, the terminating party shall give prompt written notice thereof to the non-terminating party.
(ib) The Parent and the Company agree that the Company shall pay a termination fee, representing liquidated damages, to Parent the sum of $9,100,000 10,000,000 (the “"TERMINATION FEE") solely if the Company or Parent terminates this Agreement pursuant to: (i) Section 8.01(d)(iv) or (ii) Section 8.01(e).
(c) The Termination Fee”Fee required to be paid pursuant to Section 8.02(b) shall be payable by the Company to Parent on the same day as the termination referred to therein and payment of such Termination Fee shall be a condition precedent to the effectiveness of any termination by the Company. Notwithstanding the foregoing, (i) in no event shall more than one Termination Fee be payable and (ii) Parent may elect, by notice to the Company, to defer the payment of the Termination Fee from time to time for a period or periods of up to an aggregate of twelve months after the date such fee would otherwise be payable. In the event that the Company shall fail to pay any Termination Fee when due in accordance with this Article VIII, the amount of any such Termination Fee shall be increased to include the costs and expenses actually incurred (including, without limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 8.02. All payments under this Section 8.02 shall be made by wire transfer of immediately available funds to an account specified designated by Parent in the event of any of the following:Parent.
(1d) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the Upon termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated except for any amounts payable by the Company pursuant to this Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required 8.02 and except as otherwise contemplated by this Section 8.05(b) 8.02, this Agreement shall be paid promptlybecome void and have no effect, but in no event later than two Business Days after without any liability on the date part of terminationany party hereto or its Affiliates, directors, officers or stockholders; provided that with respect to clause (2) abovethat, notwithstanding the Termination Fee foregoing, this shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into not relieve a breaching Party from liability for an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any uncured willful breach of any a representation, warranty or covenant or agreement giving rise to such payment, subject to termination. In the event a claim is made against a party under this Section 8.05(c8.02(d).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company non-prevailing party shall pay all reimburse the prevailing party for its reasonable costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including a claim made against the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madeother party under this Section 8.02(d).
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement (other than as set forth in Section 10.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, Affiliates, agents, legal and financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful material and intentional breach of this Agreement, or any fraud, by such party.
(b) In the event that this Agreement is terminated (i) The by Parent or the Company pursuant to Section 9.2(a), provided that at the time of such termination (A) the Company Requisite Vote had not been obtained and (B) an Acquisition Proposal or other public announcement of any intention with respect to an Acquisition Proposal shall have been made (and such Acquisition Proposal has not been withdrawn), (ii) by Parent or the Company pursuant to Section 9.2(b) or by Parent pursuant to Section 9.4(f), provided that, in each case, at the time of such termination an Acquisition Proposal or other public announcement of any intention with respect to an Acquisition Proposal shall have been made (and such Acquisition Proposal has not been withdrawn), (iii) by the Company pursuant to Section 9.3(a), or (iv) by Parent pursuant to Section 9.4(a), (b), (c), (d) or (e), then the Company shall pay to Parent a termination fee, representing fee (as liquidated damages, ) in the amount of $9,100,000 200,000,000 as follows: (x) in the “Termination Fee”case of any termination described in clauses (i) or (ii) above, if within twelve (12) months after the date of such termination the Company enters into a definitive agreement with respect to, or consummates, a transaction contemplated by an Acquisition Proposal, promptly, but in no event later than two (2) Business Days after the date of the earlier of such entering into a definitive agreement or such consummation, as applicable; (y) in the case of any termination described in clause (iii) above, at or prior to Parent payable the time of such termination; and (z) in the case of any termination described in clause (iv) above, promptly, but in no event later than two (2) Business Days after the date of such termination. Any such payment shall be made by wire transfer of immediately available funds to an account specified designated in writing by Parent to the Company. For purposes of this Section 9.5(b) "Acquisition Proposal" shall be defined by replacing all references to "20%" in the event definition of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d)"35%".
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Teva Pharmaceutical Industries LTD)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability Buyer, the Company, any of their respective Subsidiaries or further obligation any of the officers or directors of any kind on of them shall have any liability of any nature whatsoever hereunder, or in connection with the part transactions contemplated hereby, except that Sections 6.11 and 9.4 and this Section 8.2; provided, however, that, notwithstanding anything to the contrary herein (including Section 8.2(e)), neither Buyer nor the Company shall be relieved or released from any liabilities or damages arising out of its willful and material breach of any provision of this Agreement; provided, that in no event shall any party hereto be liable for punitive damages. For purposes of this Agreement, “willful and material breach” shall mean a material breach that is a consequence of an act undertaken by the breaching party with the knowledge (actual or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (iiconstructive) that no the taking of such termination shall relieve any party hereto of any liability act would, or damages resulting from any willful would reasonably be expected to, cause a breach of this Agreement.
(ib) The In the event this Agreement is terminated by Buyer pursuant to Section 8.1(f) or by the Company pursuant to Section 8.1(g), the Company shall pay a termination fee, representing liquidated damages, of to Buyer an amount equal to $9,100,000 3,500,000 (the “Termination Fee”).
(c) In the event (i) this Agreement is terminated by the Company or Buyer pursuant to Parent Section 8.1(e) or 8.1(c) or Buyer pursuant to Section 8.1(b), and (ii) on or before the date of any such termination, (x) an Acquisition Proposal with respect to the Company shall have been publicly disclosed or announced and not withdrawn (x) in the case of a termination pursuant to clause (x) of Section 8.1(e), prior to the Company Meeting, (y) in the case of a termination pursuant to Section 8.1(b), before the applicable breach by the Company, or (z) in the case of a termination pursuant to Section 8.1(c) or clause (y) of Section 8.1(e), before the date specified therein, then the Company shall pay to Buyer (A) an amount equal to 15% of the Termination Fee on the second Business Day following such termination and (B) if within eighteen (18) months of such termination, the Company shall consummate a transaction or have entered into a definitive agreement for a transaction with any third party that involves the consummation of a transaction described in the definition of Acquisition Transaction (but replacing references to “15% or more” with “50% or more”), then the Company shall pay to Buyer, upon consummation of such transaction, the remaining 85% of the Termination Fee less the Expense Amount if previously paid.
(d) If this Agreement is terminated pursuant to Section 8.1(e) or by Buyer pursuant to Section 8.1(b), but the Termination Fee (or any portion thereof) has not been paid and is not then payable, the Company shall pay at the direction of Buyer as promptly as practicable (but in any event within two (2) Business Days after receipt of Buyer’s request therefor), $250,000 (the “Expense Amount”) on account of the expenses and opportunity costs incurred by Buyer and its Subsidiaries in connection with this Agreement and the transactions contemplated by this Agreement.
(e) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be made not more than two (2) Business Days after the date of the event giving rise to the obligation to make such payment, unless the Termination Fee is payable as a result of the termination of this Agreement by the Company pursuant to Section 8.1(g), in which case, the Termination Fee shall be payable concurrently with such termination. All payments under this Section 8.2 shall be made by wire transfer of immediately available funds to an account specified designated by Parent in the event of any Buyer. The payment of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated Termination Fee and/or Expense Amount by the Company pursuant to Section 8.03(aSections 8.2(b); or
(3, 8.2(c) or 8.2(d) shall be the sole and exclusive remedy of Buyer, Buyer Bank and Merger Sub in connection with the termination of this Agreement is terminated by Parent pursuant under the circumstances described thereunder, except as otherwise provided in the proviso to Section 8.04(b) or Section 8.04(d8.2(a).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(cf) The Company acknowledges and Company Bank acknowledge that the agreements contained in paragraph (b) above this Section 8.2 are an integral part of the transactions contemplated by this AgreementAgreement and that, without these agreements, Buyer, Buyer Bank and that without such agreements Parent Merger Sub would not have entered enter into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If if the Company fails promptly to promptly pay Parent any amounts amount due under paragraph (b) above within pursuant to this Section 8.2 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the time period specified thereinCompany for all or a portion of the amount set forth in this Section 8.2, the Company shall pay all to Buyer its costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts44 suit, together with interest on all amounts due pursuant to this Section 8.2 at an interest rate equal to the amount of any such unpaid amounts at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be mademade plus 200 basis points.
Appears in 1 contract
Samples: Merger Agreement (LSB Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall become void and of no effect with no have any liability or further obligation of to any kind on the part of any other party hereto hereunder except as set forth in this Section 8.02 and Section 9.01.
(b) If this Agreement is terminated by either Parent or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful Target due to a breach of a representation, warranty, covenant or undertaking, the party committing such breach shall be liable for $250,000 to the other party, without prejudice to any other rights or remedies as may be available to Parent under Section 8.02(c) below.
(c) In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Merger, the parties hereto agree that Target shall pay Parent the sum of $1.5 million (the "Termination Fee") if this Agreement.Agreement is terminated as follows:
(i) The Company if this Agreement is terminated by Parent pursuant to Section 8.01(f) or (g) or by Target pursuant to Section 8.01(h), in either of which case payment shall be made to Parent concurrently with the termination of this Agreement; or
(ii) if (x) this Agreement is terminated by (A) Parent pursuant to Section 8.01(b), (B) by either Parent or Target pursuant to Section 8.01(c) or (C) by either Parent or Target pursuant to Section 8.01(e), and in the case of any termination pursuant to clause (A), (B) or (C), an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of Target or the Target Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the stockholders of Target contemplated by this Agreement at the Target Meeting, in the case of clause (C), or the date of termination, in the case of clause (A) or (B), and (y) within 18 months after such termination Target enters into an agreement with respect to an Acquisition Proposal or consummates a transaction which is the subject of an Acquisition Proposal, then Target shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent the Termination Fee on the date of execution of such agreement or consummation of a transaction which is the subject of an Acquisition Proposal, provided that if the date of execution of such agreement is after 12 months but within 18 months after such termination of this Agreement, the Termination Fee shall be payable by Target to Parent only upon consummation of a transaction which is the subject of an Acquisition Proposal, regardless whether such consummation occurs within 18 months after termination of this Agreement. Any amount that becomes payable pursuant to this Section 8.02(c) shall be paid by wire transfer of immediately available funds to an account specified designated by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d)Parent.
(iid) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; Target and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges agree that the agreements agreement contained in paragraph (bc) above are of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, and that without such agreements agreement Parent would not have entered into this Agreement, Agreement and that such amounts do not constitute a penaltypenalty or liquidated damages in the event of a breach of this Agreement by Target. If the Company Target fails to promptly pay Parent any the amounts due under paragraph (bc) above within the time period periods specified therein, the Company Target shall pay all the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any actionaction in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime lending rate of interest printed prevailing during such period as published in The Wall Street Journal Journal, calculated on a daily basis from the date such payment was amounts were required to be madepaid until the date of actual payment.
Appears in 1 contract
Samples: Merger Agreement (PCB Bancorp Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employees, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from (A) any willful or intentional breach of this Agreement, or (B) the failure of Parent to obtain the requisite financing to consummate the Merger, and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification (A) prior to, with respect to any termination pursuant to Section 8.2(a), the date of termination, and (B) at least five (5) Business Days prior to, with respect to termination pursuant to Section 8.2(b), the date of the Shareholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b), or (xii) this Agreement is terminated (A) by Parent pursuant to Section 8.02(a8.4(a) for failure or 8.4(c) or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Shareholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a) or 8.4(c) shall have occurred, or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(a), then the Company shall pay Parent a termination fee of $5,000,000 (the “Termination Fee”) pursuant to this Section 8.5(b) and shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $1,000,000, in each case payable by wire transfer of same day funds. The Termination Fee to be consummated by the date specified therein and such failure is the result paid pursuant to clause (iii) of the knowing action previous sentence shall be paid as set forth in Section 8.3(a). No Termination Fee shall be payable to Parent pursuant to clause (i) or inaction (ii) of the Company or (yfirst sentence of this Section 8.5(b) Section 8.02(b)(ii) unless and (C) until within twelve (12) months of the termination of this Agreement, Agreement the Company consummates or any of its Subsidiaries shall have entered into an Alternate Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) aboveto, the Termination Fee or shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee have consummated or shall be paid prior have approved or recommended to the Company’s entering stockholders or otherwise not opposed, an Acquisition Proposal. For all purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or consummatingshall have consummated or shall have approved, approving adopted or recommending recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or within two Business Days following notice from Parent if the Company shall have failed to oppose on behalf of such Acquisition Proposal.
(iii) Notwithstanding Person or any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) its Affiliates. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay any amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under or Merger Sub commences a suit which results in a judgment against the Company for the fee, charges or expenses to which reference is made in this paragraph (b) above within the time period specified therein), the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank, N.A. in The Wall Street Journal effect on the date such payment was required to be made. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company and accepted by Parent pursuant to this Section 8.5(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability (other than as set forth in Section 8.5(b) or further obligation (c), or in the proviso at the end of any kind this sentence) on the part of any party hereto (to this Agreement or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); PROVIDED, except (i) as provided in Section 9.01 and (ii) that HOWEVER, no such termination shall relieve any party hereto of to this Agreement from any liability or for damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the following:
that: (1) in the event that (Ai) an Acquisition Proposal shall have been made to the Company Arch or any of its have been made directly to Arch' stockholders or noteholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter: (A) Arch' stockholders do not adopt this Agreement or the other transactions contemplated hereby at the Arch Stockholders Meeting or Arch' noteholders do not satisfy the Arch Minimum Condition with respect to the Company and Arch Notes; (B) thereafter this Agreement is terminated by either Parent Arch or the Company PageNet pursuant to (x) Section 8.02(a) for failure the terms of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) this Agreement and (C) Arch enters into an agreement with a third party with respect to an Acquisition Proposal within twelve (12) 12 months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
; (2ii) this Agreement is terminated by the Company PageNet pursuant to Section 8.03(a8.3(a) or (b) provided that, with respect to Section 8.3(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to Arch' obligation in accordance with such Section to duly convene and complete the Arch Stockholders Meeting regarding the adoption of this Agreement and the matters set forth in Section 6.5(b) of this Agreement); or
or (3iii) this Agreement is terminated by Parent Arch pursuant to Section 8.04(b8.4(f), then Arch and its Subsidiaries (jointly and severally) shall pay PageNet a fee equal to $40.0 million (the "PAGENET TERMINATION FEE"), which amount shall be in addition to any expenses to be paid pursuant to Section 6.12, payable by wire transfer of same day funds. A PageNet Termination Fee payable pursuant to Section 8.5(b)(i), or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days days after the date of termination; provided that with respect to clause (2) above, the termination and a PageNet Termination Fee payable pursuant to Section 8.5(b)(iii) shall be paid by the Company prior to termination of this Agreement; simultaneously with (and provided further that with respect to clause (1) above, the Termination Fee such payment shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iiia condition of) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject termination pursuant to Section 8.05(c8.4(f).
(c) The Company . Arch acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, PageNet would not have entered enter into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If the Company if Arch fails to pay promptly pay Parent any amounts the amount due under pursuant to this Section 8.5(b), and, in order to obtain such payment, PageNet commences a suit which results in a judgment against Arch for the fee set forth in this paragraph (b) above within the time period specified therein), the Company Arch shall pay all to PageNet its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be made.
(c) In the event that: (i) an Acquisition Proposal shall have been made to PageNet or have been made directly to PageNet's stockholders or noteholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter: (A) PageNet's stockholders do not adopt this Agreement or the other transactions contemplated hereby at the PageNet Stockholders Meeting or PageNet's noteholders do not satisfy the PageNet Minimum Condition with respect to the PageNet Notes, and the Bankruptcy Court fails to enter the Final Confirmation Order which would otherwise enable the transactions set forth in this Agreement to occur without approval by the holders of PageNet Shares; (B) this 69 Agreement is terminated by either Arch or PageNet pursuant to the terms of this Agreement and (C) either (x) PageNet executes and delivers an agreement with respect to an Acquisition Proposal or (y) an Acquisition Proposal with respect to PageNet is consummated, in either case, within 12 months of the date this Agreement is terminated; (ii) this Agreement is terminated by Arch pursuant to Section 8.4(a) or (b) provided that, with respect to Section 8.4(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to PageNet's obligation in accordance with such Section to duly convene and complete the PageNet Stockholders Meeting (unless the Bankruptcy Case has commenced or PageNet has stipulated to bankruptcy relief after the occurrence of an Involuntary Insolvency Event pursuant to Section 6.19(a)(iv) hereof) regarding the adoption of this Agreement and the approval of the matters set forth in Section 6.5(a) of this Agreement); (iii) the Prepackaged Plan is withdrawn without the prior written consent of Arch, or PageNet files any other plan of reorganization or amends, modifies or adds to any material provision of the Prepackaged Plan in each case without the prior written consent of Arch; (iv) any other plan of reorganization filed by a person other than PageNet is confirmed by the Bankruptcy Court; (v) PageNet files a motion to sell or otherwise transfer all or a substantial portion of its assets as part of a sale pursuant to Section 363 of the Bankruptcy Code without the prior written consent of Arch; or (vi) this Agreement is terminated by PageNet pursuant to Section 8.3(c) or (d), then PageNet and its Subsidiaries (jointly and severally) shall pay Arch a fee equal to $40.0 million (the "ARCH TERMINATION FEE"), which amount shall be in addition to any expenses to be paid pursuant to Section 6.12, payable by wire transfer of same day funds. A Arch Termination Fee payable pursuant to Section 8.5(c)(i), (ii), (iii), (iv) or (v) shall be paid no later than two days after the date of termination and a Arch Termination Fee payable pursuant to Section 8.5(c)(vi) shall be paid simultaneously with (and such payment shall be a condition of) termination pursuant to Section 8.3(c) or (d). PageNet acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Arch and Merger Sub would not enter into this Agreement. Accordingly, if PageNet fails to pay promptly the amount due pursuant to this Section 8.5(c) (and in any case in which the Bankruptcy Case has been commenced, the Initial Merger Order approves this provision), and, in order to obtain such payment, Arch commences a suit which results in a judgment against PageNet for the fee set forth in this paragraph (c), PageNet shall pay to Arch its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made. 70 ARTICLE IX.
Appears in 1 contract
Samples: Merger Agreement (Arch Communications Group Inc /De/)
Effect of Termination and Abandonment. (a) In the event that (i) Parent shall have terminated this Agreement pursuant to Section 10.3(a) or (ii) the Company shall have terminated this Agreement pursuant to Section 10.3(b), then, in either such case, the Company shall, concurrently with such termination, pay Parent a fee of $7,000,000 (a "Termination Fee"), which amount shall be payable by wire transfer of same day funds, and shall promptly reimburse Parent for all substantiated out-of-pocket costs and expenses incurred by Parent in connection with this Agreement and the transactions contemplated hereby, including, without limitation, costs and expenses of accountants, attorneys and financial advisors (collectively, "Expenses"), up to an aggregate of $2,000,000. The Company acknowledges that the agreements contained in this Section 10.4(a) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, Parent and Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 10.4(a), and, in order to obtain such payment, Parent or Sub commences a suit which results in a judgment against the Company for the fee and expenses set forth in this Section 10.4(a), the Company shall pay to Parent its costs and expenses (including attorneys' fees) in connection with such suit.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, this Agreement all obligations of the parties hereto shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)terminate, except (i) as provided in the obligations of the parties pursuant to this Section 9.01 10.4 and (ii) that no such termination shall relieve any party hereto Section 11.3 and except for the provisions of any liability or damages resulting from any willful breach of this Agreement.
(i) The Company shall pay a termination feeSections 11.5, representing liquidated damages11.6, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent 11.7, 11.8, 11.9, 11.10, 11.11, 11.12, 11.13 and 11.14. Moreover, in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly10.2, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.nothing herein
Appears in 1 contract
Samples: Merger Agreement (Suiza Foods Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this AgreementAgreement prior to termination.
(ib) The In the event that this Agreement is terminated by the Company pursuant to Section 8.3(a) or by Parent pursuant to Section 8.4(a), (b) or (c), then the Company shall pay promptly, but in no event later than two days after the date of such termination (except in the case of a termination feepursuant to Section 8.3(a), representing in which case the payment referred to below shall be made at or prior to the time of such termination), pay Parent a termination fee (as liquidated damages, ) of $9,100,000 200,000,000 (the “"Termination Fee”") to Parent payable by wire transfer of immediately available same day funds to an account specified previously designated in writing by Parent in to the event of any of the following:
(1) in Company. In the event that (Ai) an Acquisition Proposal shall have been made to the Company after the date hereof or any Person (other than Parent or any of its stockholders or any Person Affiliates) shall have publicly announced after the date hereof an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(b) and (ii) (x) Section 8.02(a) for failure the Person making the Acquisition Proposal which was outstanding at the time of the Merger to be consummated Shareholders Meeting (the "Acquiring Party") acquires, by the date specified therein and such failure is the result purchase, merger, consolidation, sale, assignment, lease, transfer or otherwise, in one transaction or any related series of transactions within twelve months after a termination of this Agreement, a majority of the knowing action or inaction voting power of the outstanding securities of the Company or all or substantially all of the assets of the Company and its Subsidiaries taken as a whole or (y) Section 8.02(b)(ii) there is consummated a merger, consolidation or similar business combination between the Company or one of its Subsidiaries and the Acquiring Party or one of its Subsidiaries within twelve months after the relevant termination of this Agreement, or (Cz) within twelve (12) months of the after termination of this Agreement, the Company consummates or one of its Subsidiaries enters into a binding agreement with the Acquiring Party for such an Acquisition Proposal;
(2) acquisition, merger, consolidation or similar business combination then the Company shall promptly, but in no event later than two days after the earlier of consummation of the transaction or transactions with the Acquiring Party or one of its Subsidiaries or the execution of a binding agreement between the Company and the Acquiring Party, pay Parent the Termination Fee in same day funds to an account previously designated by Parent to the Company in writing. In the event that this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(38.3(b)(y) this Agreement is terminated or by Parent or the Company pursuant to 8.2(a) as a result of the failure to meet the condition set forth in Section 8.04(b7.1(e) or Section 8.04(d).
(ii8.2(c) Any Termination Fee required by this Section 8.05(b) hereof, then Parent shall, or shall be paid cause Holdco to, promptly, but in no event later than two Business Days days after the date of such termination; provided that with respect , pay to clause (2) above, the Termination Fee shall be paid by the Company prior to a termination fee (as liquidated damages) of this Agreement; and provided further that with respect to clause $50,000,000 (1) above, the "Regulatory Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(cFee").
(c) . The Company acknowledges and Parent acknowledge that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such these agreements neither Parent nor the Company would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company or Parent fails to promptly pay Parent any amounts due under paragraph (b) above within pursuant to this Section 8.5(b), and in order to obtain such payment Parent or the time period specified thereinCompany as the case may be commences a suit which results in a judgment against the Company for payment of all or a portion of the Termination Fee, or against Parent for payment of all or a portion of the Regulatory Termination Fee, the Company shall pay all to Parent or Parent shall pay the Company, as the case may be, its costs and expenses (including its reasonable attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the publicly announced prime rate of interest printed The Chase Manhattan Bank in effect from time to time during such period. The Wall Street Journal on Company's payment of the date such payment was required to Termination Fee shall be madethe sole and exclusive remedy of Parent against the Company and any of its Subsidiaries and their respective directors, officers, employees, agents, advisors or other representatives in the event this Agreement is terminated and the Termination Fee is payable whether or not there has been a breach of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Nisource Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement no party hereto (or any of its directors or officers) shall become void and of no effect with no have any liability or further obligation of to any kind on the part of any other party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)to this Agreement, except (i) as provided in this Section 9.01 9.05 and (ii) except that no such termination nothing herein shall relieve any party hereto of from liability for any liability or damages resulting from any willful breach of this Agreement.
(b) If (i) The Parent shall have terminated this Agreement pursuant to clause (a) or (b) of Section 9.02 hereof or (ii) the Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter terminated this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(39.03(b) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) hereof, then in any such case the Company shall be paid promptly, but in no event later than two Business Days days after the date of termination; provided that with respect such termination or event, pay Parent in the manner set forth in the last sentence of this paragraph a termination fee of $9,000,000. If Parent shall have terminated this Agreement pursuant to clause (2c) aboveof Section 9.02 hereof and, within one year after such termination, the Termination Fee Company shall have entered into a definitive agreement providing for an Acquisition Transaction, the Company shall promptly, but in no event later than two days after the date of such definitive agreement, pay Parent in the manner set forth in the last sentence of this paragraph a termination fee of $9,000,000. Any termination fee payable under this paragraph shall be paid by the Company prior issuance to termination Parent of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if shares of preferred stock of the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be having the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)terms set forth in Annex III.
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part Upon termination of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If will return to the Company fails all copies in Parent's possession of all non-public information supplied to promptly pay Parent any amounts due under paragraph (b) above within by the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madeCompany.
Appears in 1 contract
Samples: Merger Agreement (Norand Corp /De/)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.2(b), 8.2(c), 8.2(d) and 8.2(e), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIin accordance with Section 8.1, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officers, employees, agents, legal and financial advisors or other representatives), except that (ix) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful and material breach of its obligations set forth in this Agreement and (y) the provisions set forth in this Section 8.2, Section 6.16(d) and the second and third sentences of Section 9.1 shall survive the termination of this Agreement. For purposes of this Agreement, “willful and material breach” means a material breach of this Agreement that is a consequence of an act undertaken or a failure to take an act by the breaching party with the knowledge that the taking of such act or the failure to take such act would cause a material breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat this Agreement is terminated:
(1i) by (I) either the Company or Parent pursuant to Section 8.1(c) (Requisite Company Vote Not Obtained) or (II) Parent pursuant to Section 8.1(e) (Company Breach) as a result of a material breach by the Company of the covenants or agreements set forth in this Agreement and, at the event that time of such termination, the Requisite Company Vote shall not have been obtained; and
(A) an a bona fide Acquisition Proposal shall have been made publicly to the Company or any of its stockholders Subsidiaries or otherwise become publicly known, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect that has not been withdrawn without qualification prior to, in the case of clause (I), the earlier of (x) five days prior to the Company and Shareholders Meeting (as such meeting may have been adjourned or postponed in accordance with this Agreement) or (y) termination of this Agreement; and
(B) thereafter within 12 months after such termination, the Company or any of its Subsidiaries shall have entered into a definitive agreement providing for, or shall have consummated or, in the case of an Acquisition Proposal that is a tender offer, shall have approved or recommended to the Company’s shareholders, an Acquisition Proposal; provided, that, for purposes of this Agreement is terminated Section 8.2(b)(i), the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%” and, as to clause (i) of such definition, any such Acquisition Proposal shall result in a change in control of at least 50% of the stock or assets of the Company;
(ii) by either Parent or pursuant to Section 8.1(g) (Company Recommendation Matters); or
(iii) by the Company pursuant to Section 8.1(h) (xSuperior Proposal); then, (1) in the case of Section 8.02(a8.2(b)(i), within two Business Days after consummation of such Acquisition Proposal, (2) for failure in the case of the Merger to be consummated by the date specified therein and such failure is the result Section 8.2(b)(ii), within two Business Days after termination of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) this Agreement and (C3) within twelve (12) months in the case of the Section 8.2(b)(iii), concurrently with or prior to termination of this Agreement, the Company consummates shall pay a termination fee of $400,000,000 (the “Company Termination Fee”) (net of any Expense Reimbursement previously paid) to Parent by wire transfer of immediately available funds to an Acquisition Proposal;
(2) account designated in writing by Parent. In the event that this Agreement is terminated by either the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by or Parent pursuant to Section 8.04(b8.1(c) or Section 8.04(d(Requisite Company Vote Not Obtained).
(ii) Any Termination Fee required , the Company shall pay to Parent, by wire transfer of immediately available funds to an account designated in writing by Parent, all of the reasonable and documented out-of-pocket expenses, including those of the Paying Agent, incurred by Parent and Merger Sub in connection with this Agreement and the other transactions contemplated by this Section 8.05(b) shall be paid promptlyAgreement, but in no event later than an amount not to exceed $25,000,000 (the “Expense Reimbursement”), within two Business Days after the date following such termination. To the extent any portion of termination; provided that with respect to clause (2) above, the Termination Fee shall be Expense Reimbursement is paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such amount paid shall be deducted from the amount of any Company Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant owed or agreement giving rise to such payment, subject to Section 8.05(c)payable.
(c) The Company Each party acknowledges that the agreements contained in paragraph (b) above this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, no party would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly timely pay Parent any amounts amount due under paragraph pursuant to Section 8.2(b) (b) above within any such amount due, a “Termination Payment”), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the time period specified thereinCompany for the applicable Termination Payment, the Company shall pay all to Parent its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts thereon at the publicly announced prime rate of interest printed as published in The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by Parent) in effect on the date such payment Termination Payment was required to be madepaid from such date through the date of full payment thereof; provided, that if such suit does not result in a judgment against the Company, Parent shall pay to the Company its costs and expenses (including attorneys’ fees) in connection with such suit.
(d) Each of the parties acknowledges and agrees that the Company Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Company Termination Fee is due and payable and which do not involve fraud or willful and material breach, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary in this Agreement, (x) in no event shall more than one Company Termination Fee be payable under this Agreement and (y) the parties agree that the payment of the Company Termination Fee shall be the sole and exclusive remedy available to Parent and Merger Sub with respect to this Agreement in the event any such payment becomes due and payable and is paid, and, upon payment of the Company Termination Fee, the Company (and the Company’s Affiliates and its and their respective directors, officers, employees, stockholders and Representatives) shall have no further liability to Parent and Merger Sub under this Agreement; provided, that in the event that a Company Termination Fee becomes due and is paid pursuant to this Section 8.2, Parent shall have the right to refund the Company Termination Fee in its entirety within five Business Days after the payment of the Company Termination Fee by the Company, and if Parent does so refund the Company Termination Fee in its entirety to the Company within such five Business Day period, the Company shall not be relieved or released from any liabilities or damages arising out of its willful and material breach of this Agreement and Parent and Merger Sub shall be entitled to all remedies available as contemplated by Section 8.2(a). If Parent fails to exercise its right to refund the Company Termination Fee in accordance with the proviso set forth in the previous sentence, Parent and Merger Sub shall be deemed to have irrevocably waived any and all rights and remedies other than receipt of the Company Termination Fee and the Company and its Representatives shall have no further liability to Parent and Merger Sub under this Agreement. Each of the parties acknowledges and agrees that the Company Termination Fee, if paid to Parent, shall be treated as liquidated damages that are capital in nature to which Section 1234A of the Code applies.
(e) Notwithstanding anything to the contrary in this Agreement, none of the Financing Sources shall have any liability to the Company or any Person that is an Affiliate of the Company relating to or arising out of this Agreement or the Debt Financing, whether at law,
Appears in 1 contract
Samples: Merger Agreement
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) through (e) directly below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto Party (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and subject to clause (iid) that directly below, no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any willful breach Willful Breach of this Agreement and (ii) this Section 9.5 and Article X shall survive the termination of this Agreement.
(b) In the event that
(i) The Company this Agreement is terminated (A)(I) by either Clover or Moon pursuant to (x) Section 9.2(a) or (y) Section 9.2(b) or (II) by Moon pursuant to Section 9.4(b); and (B)(I) before receipt of the Clover Stockholder Approval a Competing Proposal has been publicly made or disclosed with respect to Clover and, except where the Person who made such Competing Proposal or its Affiliates is a party to the Competing Proposal contemplated in clause (B)(II) has not been withdrawn (1) prior to the Outside Date in the case of clause (A)(I)(x), (2) at least two (2) Business Days prior to the Clover Stockholder Meeting in the case of clause (A)(I)(y) or (3) at least two (2) Business Days prior to the date of termination in the case of clause (A)(II) and (II) within twelve months of such termination, Clover shall have entered into an Alternative Acquisition Agreement with respect to or consummated any Competing Proposal, (substituting “50%” for each reference to “20%” in the definition of “Competing Proposal”);
(ii) this Agreement is terminated by Moon pursuant to Section 9.4(a); or
(iii) this Agreement is terminated by Clover pursuant to Section 9.3(a); then Clover shall pay Moon (or its designee(s)) a termination fee, representing liquidated damages, fee of $9,100,000 176,000,000 (the “Termination Fee”) (less any amounts paid pursuant to Parent payable Section 9.5(e)) by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger same-day funds, such payment to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after made on the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering entry into an Alternative Acquisition Agreement or consummatingconsummation of a Competing Proposal (whichever is earlier) in the case of clause (i) above, approving or recommending an Acquisition Proposal or within two three Business Days following notice from Parent if after such termination in the Company shall have failed case of clause (ii) above, and prior to oppose such Acquisition Proposal.
or concurrently with termination in the case of clause (iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)above.
(c) The Company Each of the Parties acknowledges and agrees that the agreements covenants and obligations contained in paragraph (b) above this Section 9.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these covenants and obligations, the Parties would not have entered into this Agreement and that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Moon and SpinCo in the circumstances in which such Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement, the Separation and Distribution Agreement and the other Transaction Documents and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby and by the Transaction Documents, which amount would otherwise be impossible to calculate with precision. In the event that such amounts do not constitute a penalty. If the Company Clover fails to promptly pay Parent any amounts when due under paragraph (bthe Termination Fee pursuant to Section 9.5(b) above within and, in order to obtain such payment Moon commences a Proceeding that results in a judgment against Clover for payment of the time period specified thereinTermination Fee, the Company Clover shall pay all to Moon its costs and expenses (including reasonable attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountsProceeding, together with interest on the amount of any such unpaid amounts Termination Fee at the publicly announced prime rate of interest printed set forth in The the Wall Street Journal Journal, Eastern Edition, in effect on the date such payment was required to be mademade from the date such payment was required to be made through the date of payment.
(d) The Parties acknowledge and agree that in no event shall Clover be required to pay the Termination Fee on more than one occasion. Notwithstanding anything in this Agreement to the contrary, upon payment of the Termination Fee in accordance with Section 9.5(b), neither Clover nor Merger Sub shall have no further liability to Moon or SpinCo with respect to this Agreement, the Separation and Distribution Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby; provided, however, that payment by Clover of the Termination Fee shall not relieve Clover from any liability or damages resulting from any Willful Breach of this Agreement.
(e) If this Agreement is terminated pursuant to Section 9.2(b), Clover shall pay to Moon its Expenses in an amount not to exceed $35,000,000. Any Expenses of Moon due under this Section 9.5(e) shall be paid by wire transfer of immediately available funds no later than two (2) Business Days after receipt by Clover of an itemized statement identifying such Expenses.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIX, all obligations of the parties hereto shall terminate, except the obligations of the parties pursuant to this Section 10.5 and Section 7.12 and except for the provisions of Sections 11.2, 11.3, 11.5, 11.6, 11.7, 11.11, 11.12, and 11.13 and pursuant to any confidentiality agreement signed by the parties hereto. Notwithstanding the foregoing, in the event of termination of this Agreement pursuant to Section 10.3 or 10.4, nothing herein shall become void and prejudice the ability of no effect with no liability or further obligation of any kind on the part of any non-terminating party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or from seeking damages resulting from any willful breach other party for any termination of this Agreement.
, including without limitation, attorneys' fees and the right to pursue any remedy at law for damages or in equity. Notwithstanding anything to the contrary in this Agreement, if the Company terminates this Agreement pursuant to Section 10.3(a) hereof because of Parent's actions in withdrawing or modifying its recommendation of this Agreement or the Merger to Parent's stockholders, the Company shall be entitled to liquidated damages equal to $750,000 (i) the "Company Breakup Fee"). The Company Breakup Fee shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to be payable by Parent payable in cash by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
within twenty (120) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of business days following the termination of this Agreement pursuant to Section 10.3(b) hereof. Notwithstanding anything to the contrary in this Agreement, the Company consummates an Acquisition Proposal;
(2) if Parent terminates this Agreement is terminated pursuant to Section 10.4(b) hereof because of the Company's actions in recommending an Alternative Proposal to the Company's stockholders, Parent shall be entitled to a fee equal to $2,000,000 (the "Parent Breakup Fee"). The Breakup Fee shall be payable by the Company in cash by wire transfer of immediately available funds within twenty (20) business days following the termination of this Agreement pursuant to Section 8.03(a); or
(310.4(b) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d)hereof.
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, written notice thereof shall be given to the other Parties, specifying the provision or provisions hereof pursuant to which such termination shall have been made, and this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors Subsidiaries or other representativestheir respective Representatives), except (i) as provided with respect of this Section 8.5 and Sections 6.3(b) (Parent and Merger Sub’s Confidentiality Obligation), 6.6 (Public Announcement), 6.9 (Fees and Expenses) and Article IX (Miscellaneous) which shall remain in Section 9.01 full force and effect and (ii) that no such termination subject to Section 8.5(e), nothing in this Section 8.5(a) shall relieve any party hereto of Party from liability for any liability willful, or damages resulting from any willful intentional breach of of, or fraud in connection with this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.4(a) or Section 8.4(b), (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(b) or 8.3(c); or
, or (3iii) if (A) an Acquisition Proposal shall have been made, proposed or communicated (and not withdrawn) after the date hereof and prior to the Company Stockholders Meeting (or prior to the termination of this Agreement if there has been no Company Stockholders Meeting), (B) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.04(b8.2(a) or Section 8.04(d8.2(b).
, and (iiC) Any Termination Fee required by at any time prior to the date that is 12 months after the date of such termination, (x) the Company enters into any definitive acquisition agreement providing for an Acquisition Proposal, or (y) an Acquisition Proposal is consummated (in each case of the foregoing clauses (x) and (y), whether or not the Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)); provided, that for purposes of this Section 8.05(b) 8.5(b)(iii), all references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”, then the Company shall pay or cause to be paid promptlyto Parent or its designee a termination fee of US$1,250,000 (the “Company Termination Fee”), but in no event later than within two (2) Business Days after the date of termination; provided that with respect such termination in the case of a termination referred to in clause (2) abovei), or immediately prior to or substantially concurrently with such termination in the case of a termination referred to in clause (ii), or substantially concurrently with the first of such events shall have occurred in the case of clause (iii), in each case by wire transfer of same day funds to one or more accounts designated in writing by Parent. In the event that Parent or its designee shall receive full payment of the Company Termination Fee pursuant to this Section 8.5(b), the receipt of such Company Termination Fee shall be paid deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub or any other Person arising out of or in connection with this Agreement or the Financing Documents, any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub or any other Person shall be entitled to bring or maintain any Proceeding against any Company Related Party arising out of or in connection with this Agreement or the Financing Documents, any of transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matters forming the basis for such termination; provided, however, that nothing in this Section 8.5(b) shall limit the rights of Parent and Merger Sub under Section 9.8. In no event shall the Company prior be required to termination pay the Company Termination Fee on more than one occasion. For the avoidance of this Agreement; and provided further that with respect doubt, subject to clause (1) aboveSection 9.8, the right of Parent and its designees to receive payment from the Company of the Company Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement or consummatingthe Financing Documents, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreementhereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect upon payment of such amounts, together none of the Company Related Parties shall have any further liability or obligation arising out of or in connection with interest on this Agreement or the amount Financing Documents, any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such unpaid amounts at the publicly announced prime rate termination. The provisions of interest printed in The Wall Street Journal on the date such payment was required this Section 8.5(b) are intended to be madefor the benefit of, and shall be enforceable by, each Parent Related Party. For purposes of this Agreement, “Company Related Party” means the Company and its Subsidiaries and any of their respective former, current and future officers, employees, directors, partners, stockholders, management members or Affiliates; and “Parent Related Party” means Parent, Merger Sub, the equity providers and lenders that are parties to the Financing Documents, or any of their respective former, current and future general or limited partners, shareholders, financing sources, managers, members, agents, directors, officers, employees or Affiliates.
Appears in 1 contract
Samples: Merger Agreement (Trunkbow International Holdings LTD)
Effect of Termination and Abandonment. (a) If this Agreement is terminated by the Company or Parent pursuant to Section 7.2(b), 7.3(a) or 7.4(a), and (x) prior to such termination, a proposal with respect to a Transaction shall have been made, and (y) within six (6) months after such termination, either the Company enters into any agreement with respect to a Transaction, or any third party shall acquire beneficial ownership of 50.1% or more of the Company's outstanding shares of voting stock, then the Company shall pay Parent, by wire transfer of immediately available funds, a fee (the "Termination Fee") of Two Million Dollars ($2,000,000) within two (2) business days after the execution of such agreement or the consummation of such acquisition (whichever shall first occur).
(b) The Company acknowledges that the agreements contained in this Section 7.5 are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the Termination Fee when due and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company, the Company shall reimburse Parent for its costs and expenses (including reasonable attorneys' fees) incurred in connection with such suit, together with interest on the amount of the Termination Fee at the prime rate, as then quoted in The Wall Street Journal, from the date the Termination Fee was required to be paid.
(c) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, this Agreement all obligations of the parties hereto shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)terminate, except (i) as provided the obligations of the parties set forth in this Section 9.01 7.5 and Section 5.12, (ii) that no the provisions of Sections 8.3, 8.6, 8.9 and 8.13, and (iii) the Confidentiality Agreement previously executed between the Company and Parent (the "Confidentiality Agreement"). Moreover, in the event of termination of this Agreement pursuant to Section 7.3 or 7.4, nothing herein shall prejudice the ability of the nonbreaching party from seeking damages, after taking into account payment of the Termination Fee, if such termination shall relieve fee has been paid, from any other party hereto of any liability or damages resulting from for any willful breach of this Agreement.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including without limitation, attorneys' fees and the filing of right to pursue any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts remedy at the publicly announced prime rate of interest printed law or in The Wall Street Journal on the date such payment was required to be madeequity.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.5 and in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Related Parties), except (i) as ; provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of from any liability or (i) for damages resulting from the Willful Breach prior to such termination by any willful breach of party hereto or (ii) as provided in this AgreementSection 8.5 (including, from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 8.5(b) or Section 8.5(d)).
(b) If this Agreement is terminated (i) The by Parent pursuant to Section 8.4(b) (Change in Recommendation) or (ii) by the Company shall pursuant to Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two (2) Business Days after such termination in the case of clause (i) or concurrently with such termination in the case of clause (ii), pay a termination feeto Parent, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds funds, a fee equal to an account specified by Parent in $8,803,499 (the event of any of the following:“Company Termination Fee”).
(1c) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) If this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(c); or, Parent shall pay to the Company, by wire transfer of immediately available funds, an amount equal to that required to reimburse the Company and its Subsidiaries for all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby at or prior to the time of such termination, up to $2,000,000 in the aggregate.
(3d) If (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.2(a) (Termination Date) prior to the receipt of the Company Requisite Approval or Section 8.2(a) (Company Requisite Approval) or (B) by Parent pursuant to Section 8.04(b8.4(a) or (Company Breach) as a result of a material breach of Section 8.04(d6.2 (Acquisition Proposals).
, (ii) Any Termination Fee required by prior to such termination referred to in clause (i) of this Section 8.05(bsentence, a bona fide Acquisition Proposal shall have been publicly made or publicly announced to the Company or its board of directors (or any committee thereof, including the Special Committee), publicly announced or shall have been made directly to the Company’s stockholders generally and, in each case, not withdrawn (a “Company Acquisition Proposal”) shall be paid promptly, but in no event later than two Business Days and (iii) within twelve (12) months after the date of terminationa termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this Section 8.5(d), the Company consummates a transaction the proposal of which would have constituted an Acquisition Proposal if made prior to the termination of this Agreement or enters into a definitive agreement for any transaction the proposal of which would have constituted an Acquisition Proposal if made prior to the termination of this Agreement (which transaction is subsequently consummated), then the Company shall pay the Company Termination Fee to Parent concurrently upon the consummation of such transaction; provided that with respect solely for purposes of this Section 8.5(d), references to clause “fifteen percent (215%) above, or more” in the Termination Fee definition of Acquisition Proposal shall be paid by the Company prior deemed to termination of this Agreement; and provided further that with respect be references to clause “fifty percent (150%) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposalmore”.
(iiie) Notwithstanding any The parties acknowledge and hereby agree that the Company Termination Fee, if, as and when required pursuant to this Section 8.5, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the party receiving such amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. The parties acknowledge and hereby agree that in no event shall the Company be required to pay the Company Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)on more than one occasion.
(cf) The Company Each party acknowledges that the agreements contained in paragraph (b) above this Section 8.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, no party would not have entered into this Agreement; and accordingly, and that such amounts do not constitute a penalty. If if the Company or Parent fails to pay promptly pay any amount that may become due pursuant to Section 8.5(a), Section 8.5(b), or Section 8.5(d) (any such amount due, a “Payment”), and, in order to obtain such Payment, Parent or the Company commences a suit which results in a judgment against the Company or Parent, respectively, for the applicable Payment, or any amounts due under paragraph (b) above within the time period specified thereinportion thereof, the Company party with such judgment against them shall pay all to the other party its costs and expenses (including attorneys’ fees) actually incurred by Parent from the date such amounts were required to be paid in connection with such suit and any action, including the filing of any lawsuit, taken to collect payment of such amountsappeal relating thereto, together with interest on the amount of any such unpaid amounts the Payment, which shall accrue at the publicly announced prime rate of interest printed published in The the Wall Street Journal Journal, Eastern Edition, in effect on the date such payment Payment was first required to be madepaid from such date through the date of full payment thereof.
(g) Notwithstanding anything to the contrary in this Agreement, but subject to the proviso in Section 8.5(a) and Section 9.13, in any circumstance in which this Agreement is terminated and Parent has the right to receive payment of the Company Termination Fee in accordance herewith, the payment of the Company Termination Fee and, if applicable, the costs and expenses of Parent pursuant to Section 8.5(f) shall be the sole and exclusive remedy of Parent, its Subsidiaries and Affiliates and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, representatives, agents or any of their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, Affiliate, representative, agent, assignee or successor of any of the foregoing (the “Parent Related Parties”) against the Company, its Subsidiaries and Affiliates and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, representatives, agents or any of their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, Affiliate, representative, agent, assignee or successor of any of the foregoing (collectively, “Company Related Parties”) for any loss or damage suffered as a result of the failure of the Merger and the other transactions contemplated by this Agreement to be consummated or for a breach of, or failure to perform under, this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of any representation made or alleged to have been made in connection herewith or therewith, and upon payment of such amounts, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement (except that the Company shall remain obligated to pay to Parent any amount due and payable pursuant to Section 8.5(f)), whether in equity or at Law, in contract, in tort or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Agiliti, Inc. \De)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall become void and of no effect with no have any liability or further obligation to any other party hereunder except as set forth in subsections (b), (c) and (d) below and in Section 9.01.
(b) Nortel and the Company agree that the Company shall pay to Nortel the sums described below (the "Termination Fee") solely as follows:
(i) the sum of $15,000,000 either if (x) the Company shall terminate this Agreement pursuant to Section 8.01(c) (unless the failure to consummate the Merger by the relevant date results primarily from the action or inaction of Nortel or from Nortel's or Sub's inability to obtain consent or approval of, or make any kind on filing or registration with, any Governmental Authority), (y) at any time after the part date of this Agreement and at or before the time of the event giving rise to such termination there shall exist an Acquisition Proposal and (z) within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with any third party hereto with respect to an Acquisition Proposal or an Acquisition Proposal is consummated, or if (A) the Company or Nortel shall terminate this Agreement pursuant to Section 8.01(d)(iv) due to the failure of the Company's stockholders to approve and adopt this Agreement, (B) at any time after the date of this Agreement and at or before the time of the event giving rise to such termination there shall exist an Acquisition Proposal which has been publicly announced or the existence of which is a matter of public knowledge and (C) within 12 months of the termination of this Agreement, the Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated;
(ii) the sum of $4,000,000 if Nortel shall terminate this Agreement pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii) following a willful breach of any of its directorsthe representations, officerscovenants or agreements contained herein, employeesand an additional sum of $11,000,000 if (x) at any time after the date of this Agreement and at or before the time of the event giving rise to such termination there shall exist an Acquisition Proposal and (y) within 12 months of the termination of this Agreement, agentsthe Company enters into a definitive agreement with any third party with respect to an Acquisition Proposal or an Acquisition Proposal is consummated;
(iii) the sum of $15,000,000 if Nortel shall terminate this Agreement pursuant to Section 8.01(e)(i); or
(iv) the sum of $15,000,000 if the Company shall terminate this Agreement pursuant to Section 8.01(e)(ii).
(c) Any Termination Fee required to be paid pursuant to subsection (b)(i) above shall be payable by the Company to Nortel not later than two Business Days after the date the Company enters into a definitive agreement with respect to, legal or the date of consummation of, an Acquisition Proposal, whichever is earlier. The sum of $4,000,000 required to be paid upon termination pursuant to subsection (b)(ii) above shall be payable by the Company to Nortel not later than two Business Days after the termination referred to therein, and financial advisors any additional sum of $11,000,000 required to be paid thereafter pursuant to subsection (b)(ii) above shall be payable by the Company to Nortel not later than two Business Days after the date the Company enters into a definitive agreement with respect to, or other representativesthe date of consummation of, an Acquisition Proposal, whichever is earlier. Any Termination Fee required to be paid pursuant to subsection (b)(iii) above shall be payable by the Company to Nortel not later than two Business Days after the termination referred to therein. Any Termination Fee required to be paid pursuant to subsection (b)(iv) shall be payable as set forth in clause (z) of Section 8.01(e)(ii). In no event shall more than $15,000,000 be payable in respect of the Termination Fee. Notwithstanding the foregoing, except (i) as provided in Section 9.01 Nortel may elect, by notice to the Company, to defer the payment of the Termination Fee from time to time for a period or periods of up to an aggregate of twelve months after the date such fee would otherwise be payable and (ii) that no such termination the Termination Fee (including any portion thereof pursuant to Section 8.02(b)(ii)) shall relieve cease to be payable immediately following any party hereto exercise by Nortel of any liability or damages resulting from any willful breach of the Option under the Option Agreement. All payments under this Agreement.
(i) The Company Section 8.02 shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable be made by wire transfer of immediately available funds to an account specified designated by Parent in the event party entitled to receive payment.
(d) If the Company shall terminate this Agreement pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii) following a willful breach of any of the following:
(1) in the event that (A) an Acquisition Proposal representations, covenants or agreements contained herein, Nortel shall have been made pay to the Company or any the sum of its stockholders or any Person $4,000,000 (the "Company Termination Fee"). The Company Termination Fee shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect be payable by Nortel to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event not later than two Business Days after the date of terminationtermination by the Company pursuant to Section 8.01(b)(i) or Section 8.01(b)(ii); provided that with respect to clause (2) above, the in no event shall more than one Company Termination Fee be payable. All payments under this Section 8.02(d) shall be paid made by wire transfer of immediately available funds to an account designated by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Periphonics Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Transaction pursuant to this Article VIII8, this Agreement (other than Sections 6.07 (Fees and Expenses), 8.05 (Effect of Termination and Abandonment) and Article 9 (Miscellaneous)) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives), except (i) as ; provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto Party of any liability or for damages resulting from any willful and material breach of any representations, warranties, covenants or agreements contained in this Agreement.
(ib) The Company shall pay a termination feeNotwithstanding Section 6.07, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) if this Agreement is terminated by the Company pursuant to Section 8.03(a8.03 or by Parent pursuant to Section 8.04(b)(i) or (b)(ii); or, the Company shall pay to Parent the Company Termination Fee in cash by wire transfer in immediately available funds to an account designated by Parent, concurrently with and as a condition to such termination.
(3c) If this Agreement is terminated (i) by the Company or Parent pursuant to Section 8.02(b), or (ii) by Parent pursuant to Section 8.04(b)(iii), then (A) the Company shall reimburse Parent and its Affiliates for all Expenses incurred in connection with the execution of this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $350,000 and (B) if within twelve (12) months after such termination, the Company enters into or consummates a definitive agreement with respect to any Acquisition Proposal (with all percentages in the definition of Acquisition Proposal increased to fifty percent (50%)), then upon the earlier of the execution or consummation of such definitive agreement, the Company shall also make a payment to Parent of an amount that, when added to the amount paid by the Company pursuant to Section 8.05(c)(A), equals the Company Termination Fee.
(d) If this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d8.02(c).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be reimburse Parent and its Affiliates for all Expenses incurred in connection with the sole remedy for Parent with respect to any breach execution of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of this Agreement and the transactions contemplated by this AgreementAgreement up to a maximum amount of $350,000.
(e) Except as contemplated by Section 6.07, Parent agrees that, to the fullest extent permitted by Law, Parent’s right to payment of the amounts provided in Section 8.05(b), (c) or (d), as the case may be, shall be its sole and that without such agreements Parent would not have entered into exclusive remedy for any Losses or Liability arising out of or in connection with any termination of this AgreementAgreement as described in Section 8.05(b), (c) or (d), respectively, and that such amounts shall constitute liquidated damages for such Losses. The Parties agree that the liquidated damages provided for in this Section 8.05 are reasonable considering all the circumstances existing as of the date hereof and constitute the Parties’ good faith estimate of the actual Losses reasonably expected to result from the termination of this Agreement as described in this Section 8.05 and do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVIII (Termination; Amendment; Waiver), written notice thereof shall be given to the other Parties, specifying the provision or provisions hereof pursuant to which such termination shall have been made, and this Agreement (other than this Section 8.5 (Effect of Termination and Abandonment) and Sections 6.3(c) (Parent's and Merger Sub's Confidentiality Obligation), 6.6 (Public Announcement), 6.9 (Fees and Expenses) and Article IX (Miscellaneous)) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto Party (or of any of its directorsSubsidiaries or their respective Representatives); provided, officers, employees, agents, legal that nothing in this Section 8.5 (Effect of Termination and financial advisors or other representatives), except (iAbandonment) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto Party from liability for fraud committed prior to such termination or for any intentional breach prior to such termination of any liability of its representations, warranties, covenants or damages resulting from any willful breach of agreements set forth in this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xSection 8.4(a) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and b), (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(c); or
, or (3iii) this Agreement is terminated by Parent or the Company pursuant to Section 8.04(b8.2(a) without the Company Shareholder Approval having been obtained or Section 8.04(d).
(ii8.2(b) Any Termination Fee required by this Section 8.05(b) shall be paid promptlyand, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company hereof and prior to the termination of this Agreement; , a bona fide Acquisition Proposal shall have been publicly announced or publicly made known, and provided further not withdrawn, and within twelve (12) months after such termination the Company or any of the Subsidiaries consummates an Acquisition Proposal, whether or not it was the same Acquisition Proposal (provided, that with respect for purposes of this Section 8.5(b), all references to clause (1) above, "20%" in the Termination Fee definition of "Acquisition Proposal" shall be paid prior deemed to the Company’s entering into an Alternative Acquisition Agreement or consummatingbe references to "50%"), approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if then the Company shall have failed (x) pay or cause to oppose be paid to Parent or its designee a termination fee of US$3,000,000 (the "Company Termination Fee"), on the date of such Acquisition Proposal.
termination, and (iiiy) Notwithstanding reimburse Parent as promptly as possible (but in any event within five (5) Business Days) following the delivery by Parent of an invoice therefor, all Expenses, up to a maximum of US$1,000,000, incurred by Parent, Merger Sub and their Affiliates (other than the Company) in connection with the transactions contemplated hereby, in each case, by wire transfer of same day funds to one or more accounts designated in writing by Parent. In the event that Parent or its designee shall receive full payment of the Company Termination Fee paid and Expenses reimbursement pursuant to this Section 8.5(b), the receipt of such Company Termination Fee and Expenses shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent, Merger Sub or any other Person arising out of or in connection with this Agreement or the Financing Documents, any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such Termination Fee termination, and none of Parent, Merger Sub or any other Person shall upon payment thereof be entitled to bring or maintain any Proceeding against any Company Related Party arising out of or in connection with this Agreement or the sole remedy Financing Documents, any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matters forming the basis for such termination; provided, however, that nothing in this Section 8.5(b) shall limit the rights of Parent with respect to any breach and Merger Sub under Section 9.8 (Specific Performance). For the avoidance of any covenant or agreement giving rise to such paymentdoubt, subject to Section 8.05(c9.8 (Specific Performance).
(c, the right of Parent and its designees to receive payment from the Company of the Company Termination Fee and the Expenses referred to in this Section 8.5(b) The shall be the sole and exclusive remedy of the Parent Related Parties against the Company acknowledges that Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement or the agreements contained in paragraph (b) above are an integral part Financing Documents, any of the transactions contemplated by this Agreementhereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect upon payment of such amounts, together none of the Company Related Parties shall have any further liability or obligation arising out of or in connection with interest on this Agreement or the amount Financing Documents, any of the transactions contemplated hereby or thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such unpaid amounts at termination. For purposes of this Agreement, "Company Related Party" means the publicly announced prime rate Company and its Subsidiaries and any of interest printed in their respective former, current and future officers, employees, directors, partners, stockholders, management members or Affiliates; and "Parent Related Party" means Parent, Merger Sub, their Subsidiaries and any of their respective former, current and future officers, employees, directors, partners, stockholders, management members or Affiliates. The Wall Street Journal on the date such payment was required provisions of this Section 8.5(b) are intended to be madefor the benefit of, and shall be enforceable by, each Company Related Party.
Appears in 1 contract
Samples: Merger Agreement (3SBio Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representatives), affiliates) except (i) as provided in Section 9.01 8.5(b); provided, however, and notwithstanding anything in the foregoing to the contrary, that (iii) that except as otherwise provided herein (including, for the avoidance of doubt, Section 9.5(d)), no such termination shall relieve any party hereto of any liability or for damages to the other party hereto resulting from any knowing and willful material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement.
(b) In the event that:
(i) The (w) before the Acceptance Time, this Agreement is terminated pursuant to Section 8.2(c) (Offer expires in accordance with its terms), (x) the Minimum Tender Condition shall not have been satisfied on the Expiration Date, (y) any Person shall have made a bona fide Acquisition Proposal after the date of this Agreement but prior to the Expiration Date and such Acquisition Proposal shall not have been publicly withdrawn prior to the Expiration Date and (z) within 12 months of such termination the Company shall have entered into a definitive agreement with respect to an Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (z) the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(ii) this Agreement is terminated by Parent pursuant to clause (a) of Section 8.4 (Change of Recommendation) or clause (c) of Section 8.4; or
(iii) [Reserved]
(iv) this Agreement is terminated by the Company pursuant to Section 8.3(a) (Alternative Acquisition Agreement); then the Company shall (A) in the case of clause (i) above, within five (5) business days after the date on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, (B) in the case of clause (ii) above, no later than 3 (three) business days after the date of such termination and (C) in the case of clause (iv) above, immediately prior to or substantially concurrently with such termination, pay Parent (or an affiliate of Parent designated in writing by Parent) the Termination Fee (as defined below) (it being understood that in no event shall the Company be required to pay the Termination Fee on more than one occasion) and shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the documented, reasonable out-of-pocket expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a termination fee, representing liquidated damages, maximum aggregate amount of $9,100,000 1,000,000 (inclusive of any payments previously made pursuant to the “Termination Fee”Expense Reimbursement, as defined in Section 8.5(c) to Parent below) in each case payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated designated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but Parent. As used in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.this
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided that the provisions set forth in this Section 8.5, officers, employees, agents, legal and financial advisors or other representativesSection 6.9 (Public Announcements), except Section 6.12(c) (iwith respect to Parent’s and Merger Sub’s reimbursement and indemnification obligations), Section 6.17 (Expenses), Section 9.4 (Notices), Section 9.6 (Entire Agreement; Assignment), Section 9.7 (Parties in Interest), and Section 9.8 (Governing Law and Arbitration), the Confidentiality Agreement and the Guaranty (to the extent set forth therein) as provided in Section 9.01 and (ii) that no such shall survive the termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this AgreementAgreement and abandonment of the Merger pursuant to this ARTICLE VIII.
(b) In the event that:
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xSection 8.2(a) or Section 8.02(a8.2(b) for failure of the Merger to be consummated or by the date specified therein Parent pursuant to Section 8.4(b)(i), (B) an Acquisition Proposal, whether or not conditional, shall have been made public and such failure is not withdrawn prior to the result termination of this Agreement pursuant to Section 8.2(a) or Section 8.4(b)(i) or, with respect to termination pursuant to Section 8.2(b), prior to the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) Shareholders’ Meeting, and (C) within after the date of this Agreement and prior to the date that is twelve (12) months of following the termination of this Agreement, the Company enters into, agrees to or consummates an Acquisition ProposalProposal (whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in the preceding clause (A)) (provided that for purposes of this Section 8.5(b)(i), the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) or Section 8.4(b)(ii); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.;
Appears in 1 contract
Samples: Merger Agreement (ShangPharma Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful deliberate breach of this Agreement occurring prior to such termination. The parties further agree that if the Company is or becomes obligated to pay a termination fee pursuant to Section 8.5(b), the right of Parent to receive such termination fee shall be the sole remedy for damages of Parent with respect to the facts and circumstances giving rise to such payment obligation except for any deliberate breach of this Agreement. No party may assert a claim for damages for any inaccuracy of any representation or warranty contained in this Agreement (whether by direct claim or counterclaim) except in connection with the termination of this Agreement.
(b) In the event that (i) The this Agreement is terminated by Parent pursuant to Section 8.4(a), or (ii) this Agreement is terminated by the Company shall pursuant to Section 8.3(b), then the Company shall, promptly, but in no event later than one business day after the date of such termination, pay Parent a termination fee, representing liquidated damages, fee of one hundred and forty million dollars ($9,100,000 140,000,000) (the “"Termination Fee”") and shall promptly, but in no event later than one business day after being notified of the amount of all documented out-of-pocket charges and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum of five million dollars ($5,000,000) ("Out-of-Pocket Expenses"), pay to Parent an amount equal to the Out-of-Pocket Expenses, in each case payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in same day funds. In the event that (i) this Agreement is terminated by Parent or EXECUTION COPY the Company pursuant to Section 8.2(b) or (ii) this Agreement is terminated by Parent pursuant to Section 8.4(b), then (A) the Company shall promptly, but in no event later than one business day after being notified of the Out-of-Pocket Expenses by Parent, pay to Parent an amount equal to the Out-of-Pocket Expenses, payable by wire transfer of same day funds and (B) if, in the case of clause (i), a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders become public or any Person shall have publicly announced an intention (whether or not conditional) to make a proposal or offer relating to an Acquisition Proposal with respect prior to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure date of the Merger to be consummated by Shareholders Meeting or if, in the date specified therein and such failure is the result case of the knowing action or inaction of the Company or clause (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreementii), the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(b) as a result of a deliberate breach by the Company and a bona fide Acquisition Proposal shall have been made to the Company or Section 8.04(d).
become public or any Person shall have announced to the Company or publicly announced an intention (whether or not conditional) to make a proposal or offer relating to an Acquisition Proposal prior to the date of termination, and in the case of each of clause (i) and clause (ii), within fifteen (15) Any Termination Fee required months from the date of termination, the Company executes and delivers a definitive agreement with respect to any Acquisition Proposal or an Acquisition Proposal is consummated (it being understood that in the event the board of directors of the Company recommends the acceptance by this Section 8.05(b) the shareholders of the Company of a third-party tender offer or exchange offer for at least a majority of the outstanding Shares, such recommendation shall be paid treated as though an agreement with respect to an Acquisition Proposal had been executed), the Company shall promptly, but in no event later than two Business Days one business day after the date of termination; provided that with respect to clause (2) abovesuch execution and delivery, or consummation, as the case may be, pay Parent the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) Fee. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under or Merger Sub commences a suit which results in a judgment against the Company for the fee set forth in this paragraph (b) above within the time period specified therein), the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Ing Groep Nv)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors officers or Affiliates) shall have any liability or further obligation to any other representatives)party to this Agreement, except (i) as provided in Sections 3.22 and 4.6, the last sentence of Section 9.01 5.2, Article VII, Article VIII, and (ii) except to the extent that no such termination shall relieve any results from the willful and material breach by a party hereto of any liability of its representations, warranties, covenants or damages resulting from any willful breach of agreements set forth in this Agreement.
(b) In the event of termination of this Agreement pursuant to Section 7.1(c), or by Parent pursuant to (i) The 7.2(a) as a result of a failure to satisfy the conditions in Sections 6.2(a) (to the extent such failure results from a breach by the Company shall of its representations and warranties hereunder), 6.2(b) or 6.2(d)(ii); (ii) Section 7.2(b); or (iii) Section 7.2(c), then the Company shall, within five (5) business days thereafter, pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent an amount equal to all documented out of pocket reasonable fees and expenses incurred by Parent and Merger Sub since January 1, 1999 (including the reasonable fees and expenses of counsel, accountants, consultants and advisors, and any commitment fees and other expenses paid to prospective lenders) in connection with this Agreement and the Transactions contemplated hereby (the "Parent Documented Expenses"); provided, however, the Parent Documented Expenses which the Company shall pay in the event of termination of this Agreement pursuant to Section 7.1(c) shall 36 not exceed $650,000 and the Parent Documented Expenses which the Company shall pay in the event of termination of this Agreement pursuant to Section 7.2 shall not exceed $500,000; and provided, further, that the Company shall not be obligated to pay any Parent Documented Expenses if (i) Parent or the Merger Sub shall have failed to comply in any material respect with any of the following:covenants or agreements contained in this Agreement such that the Closing condition set forth in Section 6.3(b) would not be satisfied; or (ii) there exists a breach of any one or more representations or warranties of Parent or the Merger Sub contained in this Agreement in any material respect such that the closing condition set forth in Section 6.3(a) would not be satisfied.
(1c) in In the event of termination of this Agreement pursuant to Section 7.1(d), the Company shall, within five (5) business days thereafter, pay Parent by wire transfer of immediately available funds to an account specified in writing by Parent a fee equal to the amount, if any, by which $3.25 million exceeds the fee payable in such event by Textron Inc. to Parent under the Voting Agreement to which Textron Inc. is a party (the "Termination Fee").
(d) To the extent that the Termination Fee has for any reason other than a material breach by Parent not already been paid and within twelve (A12) an Acquisition Proposal shall have been made to months after the termination of this Agreement the Company or any of its stockholders Subsidiaries, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal Company Affiliate enters into a definitive agreement with a Third Party with respect to a Takeover Proposal or a Takeover Proposal is effected, then the Company and shall, within five (B5) thereafter this Agreement is terminated business days after the consummation of such Takeover Proposal, pay Parent by either Parent or the Company pursuant wire transfer of immediately available funds to (x) Section 8.02(a) for failure of the Merger to be consummated by the date an account specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated in writing by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be less any Parent Documented Expenses previously paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) and (c) below, in the event of termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from fraud or any willful breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(1i) in the event that (A) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders Subsidiaries or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and (Bsuch Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to the date of termination) and thereafter this Agreement is terminated by Parent pursuant to Section 8.4(b) or by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal8.2(a);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) then the Company shall be paid promptly, but in no event later than two Business Days (2) days after the date of such termination, pay Parent a termination fee of $115,600,000 (the “Termination Fee” ); provided provided, however, that with respect (A) the Termination Fee to be paid pursuant to clause (2iii) above, the shall be paid as set forth in Section 8.3(a) payable by wire transfer of immediately available funds; (B) no Termination Fee shall be paid by the Company prior payable to termination of this Agreement; and provided further that with respect Parent pursuant to clause (1i) aboveof this paragraph (b) unless and until, within twelve (12) months of such termination, the Termination Fee Company or any of its Subsidiaries shall be paid prior to the Company’s entering have entered into an Alternative Acquisition Agreement or consummating, approving or recommending with respect to an Acquisition Proposal and such Acquisition Proposal is consummated (substituting “50%” for “15%” in the definition thereof; and for the avoidance of doubt, such Acquisition Proposal shall include any license (whether exclusive or within two Business Days non-exclusive) pertaining to commercialization rights for the Key Product, IDX-21459 or Samatasvir and such Termination Fee payable to Parent pursuant to clause (i) of this paragraph (b) shall be payable promptly after the consummation of such Acquisition Proposal (but in no event later than five (5) days after such consummation) and (C) such Termination Fee payable to Parent pursuant to clause (i) of this paragraph (b) shall be net of any Parent Expenses paid by the Company to Parent pursuant to the immediately following notice from sentence. In the event that this Agreement is terminated pursuant to Sections 8.2(a) by Parent if or the Company and at the time of such termination the only Tender Offer Conditions that have not been satisfied or waived are the Minimum Condition and the delivery of the certificates referenced in clause (5) of Exhibit A, then the Company shall have failed reimburse Parent promptly upon demand, but in no event later than two (2) business days after the date of such demand, by wire transfer of immediately available funds, all reasonable, documented out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, financing sources, hedging counterparties, experts and consultants) (“Parent Expenses”) incurred by Parent, Merger Sub or their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement; provided that the Company shall not be obligated to oppose such Acquisition Proposal.
(iii) Notwithstanding reimburse Parent for Parent Expenses in excess of $5,000,000. The reimbursement of Parent Expenses pursuant to the immediately preceding sentence shall not relieve the Company of any subsequent obligation to pay any applicable Termination Fee paid pursuant to Parent, such Termination Fee shall upon payment thereof be this Section 8.5(b) (less the sole remedy for amount of Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(cExpenses previously reimbursed by the Company).
(c) The Company acknowledges parties acknowledge that the agreements contained in paragraph (b) above this Section 8.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, the parties would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to Section 8.5(b) and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the amount set forth in Section 8.5(b) or any amounts due under paragraph (b) above within the time period specified thereinportion thereof, the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the such amount of any such unpaid amounts or portion thereof at the publicly announced prime rate of interest printed Citibank, N.A. in The Wall Street Journal effect on the date such payment was required to be mademade through the date of payment. Parent’s right to receive the Termination Fee and/or Parent Expenses from the Company pursuant to this Section 8.5 and Parent’s right to specific performance pursuant to Section 9.4(c) shall be the sole and exclusive remedies of Parent, Merger Sub and their respective Affiliates against the Company, its Subsidiaries and any of their respective former, current, or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Offer, the Merger or the other transactions contemplated by this Agreement to be consummated, and upon payment of such amount, none of the Company, its Subsidiaries or any of their respective former, current, or future general or limited partners, stockholders, directors, officers, managers, members, Affiliates, agents or other Representatives shall have any further liability or obligation relating to or arising out of this Agreement or the Offer, the Merger or the other transactions contemplated by this Agreement; provided, however, that in no event will the Parent or Merger Sub be entitled to both the payment of the Termination Fee and specific performance of this Agreement. The parties hereto expressly acknowledge and agree that: (i) upon any such termination of this Agreement, the payment of the Termination Fee pursuant to Section 8.5(b) shall be in full and complete satisfaction of any and all monetary damages of Parent and Merger Sub arising out of or related to this Agreement, the Offer, the Merger or the other transactions contemplated by this Agreement (including any breach by the Company), the termination of this Agreement, the failure to consummate the Offer, the Merger or the other transactions contemplated by this Agreement, and any claims or actions under applicable Law arising out of any such breach, termination or failure; and (ii) in no event shall Parent or Merger Sub be entitled to seek or obtain any recovery or judgment in excess of the Termination Fee (plus, in the case the Termination Fee is not timely paid, the amounts described in the first sentence of this Section 8.5(c)) against the Company, its Subsidiaries or any of their respective former, current, or future general or limited partners, stockholders, directors, officers, employees, managers, members, Affiliates, agents or other Representatives or any of their respective assets, and in no event shall Parent or Merger Sub be entitled to seek or obtain any other damages of any kind, including consequential, special, indirect or punitive damages for, or with respect to, this Agreement or the transactions contemplated hereby (including any breach by the Company), the termination of this Agreement, the failure to consummate the Offer, the Merger or the other transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure; provided, however, that this Section 8.5(c) shall not limit the right of the parties hereto to specific performance of this Agreement pursuant to Section 9.4(c) prior to the termination of this Agreement in accordance with its terms.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in this Section 8.5, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything herein to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any fraud or willful and intentional material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and Section 9.1 shall survive the termination of this Agreement.
(ib) The In the event that this Agreement is terminated by Parent pursuant to Section 8.4(b), then the Company shall promptly, but in no event later than two (2) business days after the date of such termination, pay to Parent a termination fee, representing liquidated damages, fee of $9,100,000 52,700,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in ). In the event of any of that this Agreement is terminated by the following:Company pursuant to Section 8.3(b), then the Company shall pay Parent the Termination fee as set forth in Section 8.3(b).
(1c) in In the event that (Ai) an a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of the stockholders of the Company or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (x) thirty (30) business days prior to, with respect to any termination pursuant to Section 8.2(a), the Company date of termination, and (By) at least ten (10) business days prior to, with respect to termination pursuant to Section 8.2(b), the date of the Stockholders Meeting), (ii) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or Section 8.2(b) and (xiii) Section 8.02(awithin twelve (12) for failure of the Merger to be consummated by the date specified therein and months after such failure is the result of the knowing action or inaction of termination, (1) the Company or any of its Subsidiaries shall have entered into a Definitive Agreement with respect to, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal or (y2) Section 8.02(b)(ii) and (C) there shall have been consummated an Acquisition Proposal, then the Company shall pay the Termination Fee to Parent upon the earliest to occur of such events, by wire transfer of immediately available funds. For purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of the date of termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this or any of its Subsidiaries shall have entered into a Definitive Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) aboveto, the Termination Fee or shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee have consummated or shall be paid prior have approved or recommended to the Company’s entering into an Alternative Acquisition Agreement stockholders or consummatingotherwise not opposed, approving or recommending an Acquisition Proposal made by or within two Business Days following notice from Parent if on behalf of such Person or any of its Affiliates. For purposes of this Section 8.5(c), (1) the Company references to “15% or more” in the definition of Acquisition Proposal shall have failed be deemed to oppose be references to “more than 50%” and (2) the term “Definitive Agreement” shall mean a definitive and binding merger agreement, stock purchase agreement or similar definitive and binding agreement, in any such case, to consummate an Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Priceline Com Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than this Section 8.5, Sections 5.3(c) and 6.13, and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors advisors, or other representatives); provided, however, that except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with in respect to of the Company or any of its subsidiaries and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xSection 8.2(b) or by the Parent pursuant to Section 8.02(a8.4(b) for failure as a result of a material breach by the Company of any of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or covenants set forth in Section 6.5 hereof (y) Section 8.02(b)(ii) and (C) provided that within twelve (12) 9 months of the termination of this AgreementAgreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by the Company consummates an Acquisition Proposal;
Company) or (2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
, or (3iii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(a)(i), or (iv) this Agreement is terminated by Parent pursuant to Section 8.4(a)(ii) and, within 9 months of such termination, any Acquisition Proposal by any third party is entered into, agreed to or Section 8.04(d).
consummated by the Company, then the Company shall pay Parent a termination fee of $1,500,000 in same-day funds, on the date of such termination, in the case of clause (ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptlyor (iii), but in no event later than two Business Days after or on the earlier of the date an agreement is entered into in respect of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if an Acquisition Proposal is consummated in the Company shall have failed to oppose such Acquisition Proposal.
case of clause (iiii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c(iv).
(c) The Company acknowledges that the agreements contained in paragraph (bSection 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within commences a suit which results in a judgment against the time period specified thereinCompany for the fee set forth in this Section 8.5, the Company shall pay all to Parent its costs and expenses (including including, attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the publicly announced prime rate of interest printed Bank of America, N.A., in The Wall Street Journal on the date effect from time to time during such payment was required to be madeperiod.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of the valid termination of this Agreement and the abandonment of the Offer and Merger pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.5 and in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directorsrespective Representatives); provided, officers, employees, agents, legal and financial advisors or other representatives), except (i) as provided in subject to Section 9.01 and (ii9.8(b) that no such termination shall relieve any party hereto of (i) the Company from any liability or for damages resulting from any willful breach of this AgreementWillful Breach by such party prior to such termination, (ii) the Company from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 8.5(b) or Section 8.5(c), or (iii) Parent from any obligation to pay, if applicable, the Parent Termination Fee pursuant to Section 8.5(d).
(b) If this Agreement is validly terminated (i) The by Parent pursuant to Section 8.4(a) (Change in Recommendation), (ii) by the Company shall pursuant to Section 8.3(b) (Termination for Superior Proposal) or (iii) by a Party pursuant to Section 8.2 at such time as this Agreement was terminable by Parent pursuant to Section 8.4(a), then the Company shall, within two (2) Business Days after such termination in the case of clause (i) or clause (iii) or concurrently with such termination in the case of clause (ii), pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable or its designee, by wire transfer of immediately available funds funds, a fee equal to an account specified by Parent in $14,700,000 (the event of any of the following:“Company Termination Fee”).
(1c) in the event that If (i) this Agreement is validly terminated (A) by Parent or the Company pursuant to Section 8.2(a) (Termination Date) prior to the Offer Acceptance Time or (B) by Parent pursuant to Section 8.4(b) (Company Breach), (ii) prior to such termination but after the date of this Agreement, an Acquisition Proposal shall have been publicly made to the Company Company’s stockholders generally or any of its stockholders or any Person shall have otherwise been publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company become publicly known and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (Ciii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement providing for any Acquisition Proposal (that is subsequently consummated) or consummates any Acquisition Proposal, then the Company shall pay the Company Termination Fee to Parent; provided that for purposes of this Section 8.5(c), references to “twenty (20%) or more” in the definition of “Acquisition Proposal” shall be deemed to be references to “fifty percent (50%) or more”.
(d) In the event of the valid termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
8.3(a) (3) this Agreement is terminated by Parent pursuant to Section 8.04(bBreach) or Section 8.04(d8.3(c) (Failure to Close).
(ii) Any Termination Fee required by this Section 8.05(b) , Parent shall be paid promptly, but in no event later than two (2) Business Days after the date of such termination; provided that with respect , pay or cause to clause (2) above, the Termination Fee shall be paid by to the Company prior by wire transfer of immediately available funds an amount equal to termination of this Agreement; and provided further that with respect to clause $29,400,000 (1) above, the “Parent Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(cFee”).
(ce) The parties acknowledge and hereby agree that each of the Company Termination Fee and the Parent Termination Fee, as applicable, if, as and when required to be paid pursuant to this Section 8.5, shall not constitute a penalty but will be liquidated damages, and that the amount thereof is a reasonable amount that will compensate the party receiving such funds in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Offer and Merger, which amount would otherwise be impossible to calculate with precision. The parties acknowledge and hereby agree that in no event shall either the Company be required to pay the Company Termination Fee or Parent be required to pay the Parent Termination Fee or any portion thereof, as the case may be, on more than one occasion.
(f) Each party acknowledges that the agreements contained in paragraph (b) above this Section 8.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, no party would not have entered into this Agreement.
(g) Notwithstanding anything to the contrary in this Agreement, but subject to the proviso in Section 8.5(a) and Section 9.13, in any circumstance in which this Agreement is terminated and Parent has the right to receive payment of the Company Termination Fee, the payment of the Company Termination Fee shall be the sole and exclusive remedy of Parent and its Subsidiaries and Affiliates and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, the Financing Sources, the Guarantors, representatives, agents or any their respective heirs, assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, Affiliate, representative, agent, assignee or successor of any of the foregoing (the “Parent Related Parties”) against the Company, its Subsidiaries and Affiliates and any of their respective former, current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, representatives, agents or any their respective heirs, assignees or successors or any former, current or future general or limited partner, stockholder, controlling Person, manager, member, director, officer, employee, Affiliate, representative, agent, assignee or successor of any of the foregoing (collectively, “Company Related Parties”) for any loss or damage suffered as a result of the failure of the Offer, the Merger and the other transactions contemplated by this Agreement to be consummated or for a breach of, or failure to perform under, this Agreement or any certificate or other document delivered in connection herewith or otherwise or in respect of any representation (oral or otherwise) made or alleged to have been made in connection herewith or therewith, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect upon payment of such amounts, together none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, whether in equity or at law, in contract, in tort or otherwise.
(h) Notwithstanding anything to the contrary in this Agreement or the Equity Commitment Letter, without limiting the last sentence of this Section 8.5(h), in the event that this Agreement is terminated, the Company’s right (if any) to receive the payment of the Parent Termination Fee shall be the sole and exclusive remedy of the Company and any other Person against the Parent Related Parties, and no Parent Related Party shall have any other liability for any or all losses suffered or incurred by the Company or any other Person in connection with interest on this Agreement (and the amount termination hereof), the Offer, the Merger (and the abandonment of the Offer and the Merger), any matter with respect to the transactions contemplated hereby, any matter forming the basis for such unpaid amounts at termination or any breach (including any Willful Breach) of this Agreement or any of the publicly announced prime rate other Transaction Documents, and neither the Company nor any other Person shall be entitled to bring or maintain any other claim, action or proceeding against Parent or any other Parent Related Party arising out of interest printed this Agreement, the Offer, the Merger or any matters forming the basis for such termination. For the avoidance of doubt, while the Company may pursue both a grant of specific performance and the payment of the Parent Termination Fee (in The Wall Street Journal on each case in accordance with the date such payment was required terms of this Agreement), under no circumstances shall the Company be permitted or entitled to be madereceive both a grant of specific performance and any money damages, including all or any portion of the Parent Termination Fee or receive any monetary damages other than the Parent Termination Fee when payable hereunder.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either the abandonment of the Merger pursuant to Company or Parent as provided in this Article VIII, this Agreement shall forthwith become void and of no effect with there shall be no liability or further obligation of any kind on the part of any Parent, Merger Sub or the Company or their respective affiliates, officers, directors or stockholders except (x) with respect to this Section 8.5 and Section 9.1 and (y) to the extent that such termination results from the breach of a party hereto (or of any of its directorsrepresentations or warranties, officersor any of its covenants or agreements, employeesin each case, agentsas set forth in this Agreement; provided, legal and financial advisors or other representatives)that, except the Company agrees that if this Agreement shall be terminated pursuant to (i) as provided in Section 9.01 8.2(iii), if at or prior to the time of the Stockholder Meeting (x) a Competing Transaction shall have been commenced, publicly proposed or publicly disclosed and (y) the Company has not rejected such Competing Transaction, (ii) Section 8.3(iii), or (iii) Section 8.4(iii), then the Company shall pay to Parent an amount equal to $2,500,000; provided, however, that no such fee shall be payable upon a termination shall relieve any party hereto of any liability by Parent pursuant to Section 8.3(iii)(A) or damages resulting from any willful breach Section 8.3(iii)(C) (to the extent subparagraph (C) relates to subparagraph (A)) if (x) the Company gave to Parent prior to Parent's termination of this AgreementAgreement pursuant to Section 8.3(iii)(A) or Section 8.3(iii)(C) (to the extent subparagraph (C) relates to subparagraph (A)) a termination notice pursuant to Section 8.4(i) or Section 8.4(ii) (the "Company Termination Notice") setting forth in reasonable detail the reason therefor and (y) at the time Parent terminates this Agreement pursuant to Section 8.3(iii)(A) or 8.3(iii)(C) (to the extent subparagraph (C) relates to subparagraph (A)) the Company is entitled to terminate this Agreement pursuant to the reasons set forth in the Company Termination Notice; provided, further, that the Company shall pay to Parent an additional $2,500,000 if the Company consummates any Competing Transaction within one year after (A) in the case of clause (i) of this Section 8.5(a), the earlier of the Stockholder Meeting or payment of the first $2,500,000, (B) in the case of clause (ii) of this Section 8.5(a), the termination of this Agreement by Parent and (C) in the case of clause (iii) of this Section 8.5(a), the termination of this Agreement by the Company.
(ib) The Company Any payment required to be made pursuant to Section 8.5(a) shall pay a termination fee, representing liquidated damages, be made as promptly as practicable but not later than five business days after the occurrence of $9,100,000 (the “Termination Fee”) event giving rise to Parent payable such payment and shall be made by wire transfer of immediately available funds to an account specified designated by Parent in the event of except that any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been payment to be made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xSection 8.5(a)(i) Section 8.02(a) for failure of the Merger to shall be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of made not later than the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c8.4(iii).
(c) The Company acknowledges Each of the parties hereto agrees that the agreements contained payment in paragraph full of immediately available funds by the Company to Parent shall be Parent's exclusive remedy for an action taken by the Company which (bx) above are an integral part is permitted under this Agreement and (y) results in the payment to Parent of the transactions contemplated by fee set forth in Section 8.5(a). Except as set forth in the immediately preceding sentence and subject to Section 9.12, all rights, powers and remedies provided under this AgreementAgreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount exercise of any such unpaid amounts at right, power or remedy by any party shall not preclude the publicly announced prime rate simultaneous or later exercise of interest printed in The Wall Street Journal on the date any other such payment was required to be made.right, power or remedy by such party. 29
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Representatives or other representativesAffiliates), except ; provided that (i) except as otherwise provided in Section 9.01 Sections 8.5(g), 9.5(c) and (ii) that 9.5(d), no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or intentional material breach of this Agreement (it being understood that any such liability or damages for which the Company may become liable shall be calculated net of the amount of the Termination Fee, if previously paid by the Company) and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The In the event that this Agreement is terminated by the Company pursuant to Section 8.3(a) or by Parent pursuant to Section 8.4(a), then the Company shall pay a termination fee, representing liquidated damages, fee of $9,100,000 272,500,000 (the “Termination Fee”) as directed in writing by Parent, at the time of termination in the case of a termination pursuant to Section 8.3(a) or promptly (but in any event within two business days following termination of this Agreement in the case of a termination pursuant to Section 8.4(a).
(c) In the event that this Agreement is terminated by:
(i) Parent or the Company pursuant to Section 8.2(a), and (x) at any time prior to the termination an Acquisition Proposal has been publicly announced or publicly made known and not withdrawn and (y) within nine months after such termination the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee, and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of such consummation, the Company shall pay the Termination Fee;
(ii) Parent or the Company pursuant to Section 8.2(b) (or, after the Shareholder Meeting has been held and a vote on the adoption of this Agreement has been taken and there has been a failure by the Company to obtain the Requisite Company Vote, and this Agreement thereby becomes terminable for this reason, the Company terminates this Agreement for another reason), and (x) prior to the Shareholder Meeting an Acquisition Proposal has been publicly announced or publicly made known and not withdrawn and (y) within nine months after such termination the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee less the amount of any Parent Expenses previously paid to Parent pursuant to Section 8.5(d) by the Company, and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of, and as a condition to, such consummation, the Company shall pay the Termination Fee less the amount of any Parent Expenses previously paid to Parent pursuant to Section 8.5(d) by the Company; or
(iii) Parent pursuant to Section 8.4(b), and (x) prior to the breach giving rise to the right of termination, an Acquisition Proposal has been publicly announced or publicly made known and not withdrawn and (y) within nine months after such termination the Company or any of its Subsidiaries enters into a definitive agreement with respect to, or consummates, an Acquisition Proposal (whether or not the same as that originally announced or made known), then, (i) in the event that a definitive agreement with respect to an Acquisition Proposal is entered into, on the date of such execution, the Company shall pay 50% of the Termination Fee, and on the date of such consummation, the Company shall pay the balance of such Termination Fee and (ii) in the event that an Acquisition Proposal is otherwise consummated, on the date of such consummation, the Company shall pay the Termination Fee. For purposes of this Section 8.5(c), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(b), except that all references to 15% therein shall be deemed to be references to “more than 50%”.
(d) In the event that this Agreement is terminated by Parent, on the one hand, or the Company, on the other hand, pursuant to Section 8.2(b) under circumstances in which the Termination Fee is not then payable pursuant to this Section 8.5, then the Company shall pay promptly (but in any event within two business days) following receipt of an invoice therefor all of Parent’s actual and reasonably documented out-of-pocket fees and expenses (including reasonable legal fees and expenses) actually incurred by Parent and its affiliates on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement (the “Parent Expenses”) as directed by Parent in writing, which amount shall not be greater than $40,000,000; provided, however, that the existence of circumstances that could require the Termination Fee to become subsequently payable by the Company pursuant to Section 8.5(c)(ii) shall not relieve the Company of its obligations to pay the Parent Expenses pursuant to this Section 8.5(d); provided further, that the payment by the Company of Parent Expenses pursuant to this Section 8.5(d) shall not relieve the Company of any subsequent obligation to pay the Termination Fee pursuant to Section 8.5(c) except to the extent indicated in Section 8.5(c)(ii).
(e) In the event of termination of this Agreement by (i) the Company or Parent pursuant to Section 8.2(a) and on the Termination Date the conditions set forth in Section 7.1 or Section 7.2 (other than the delivery of the officer certificates referred to in Sections 7.2(a), 7.2(b) and 7.2(c)) were satisfied or waived, or (ii) the Company pursuant to Section 8.3(c), Parent shall pay the Company an amount, by wire transfer of immediately available funds, equal to $272,500,000 (the “Parent Fee”) as promptly as possible (but in any event within two business days) following such termination.
(f) Any amount that becomes payable pursuant to Section 8.5(b), 8.5(c), 8.5(d) or 8.5(e) shall be paid by wire transfer of immediately available funds to an account specified or accounts designated by the party entitled to receive such payment. The parties hereto agree and understand that in no event shall the Company or Parent in be required to pay the event of any of Termination Fee or the following:Parent Fee, respectively, on more than one occasion.
(1g) Notwithstanding anything to the contrary in this Agreement, (i) in the event that (Acircumstances in which Parent becomes obligated to pay the Parent Fee, the Company’s termination of this Agreement pursuant to Section 8.2(a) an Acquisition Proposal shall have been made or 8.3(c), as the case may be, and receipt of payment of the Parent Fee pursuant to Section 8.5(e) or the guarantee thereof pursuant to the Company or any Guarantees shall be the sole and exclusive remedy of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter its Subsidiaries against Parent, Merger Sub or the Guarantors for any loss or damage suffered as a result of the breach of any representation, warranty, covenant or agreement contained in this Agreement is terminated by either Parent or Merger Sub and the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein consummated, and such failure is the result upon payment of the knowing action Parent Fee in accordance with Section 8.5(e), none of Parent, Merger Sub or inaction the Guarantors shall have any further liability or obligation relating to or arising out of this Agreement or the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of transactions contemplated by this Agreement, and (ii) in no event, whether or not this Agreement shall have been terminated, shall the Company consummates an Acquisition Proposal;
(2) be entitled to monetary damages in excess of $272,500,000 in the aggregate, inclusive of the Parent Fee, if applicable, for all losses and damages arising from or in connection with breaches of this Agreement is terminated by the Company pursuant Parent or Merger Sub or otherwise relating to Section 8.03(a); or
(3) or arising out of this Agreement is terminated or the transactions contemplated by Parent pursuant to Section 8.04(b) or Section 8.04(d)this Agreement.
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(ch) The Company acknowledges parties acknowledge that the agreements contained in paragraph (b) above Section 8.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, the parties would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay any amount due pursuant to Section 8.5(b), Section 8.5(c) or Section 8.5(d) or Parent fails to promptly pay any amounts amount due under paragraph (bpursuant to Section 8.5(e), and, in order to obtain such payment, Parent or Merger Sub, on the one hand, or the Company, on the other hand, commences a suit that results in a judgment against the Company for the amount set forth in Section 8.5(b), Section 8.5(c) above within or Section 8.5(d) or any portion thereof or a judgment against Parent for the time period specified therein, amount set forth in Section 8.5(e) or any portion thereof the Company shall pay all to Parent or Merger Sub, on the one hand, or Parent shall pay to the Company, on the other hand, its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts amount or portion thereof at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be mademade through the date of payment.
Appears in 1 contract
Samples: Merger Agreement (Biomet Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this the Agreement and the abandonment of the Merger pursuant to this Article VIIIVII, written notice thereof, specifying the provisions of Article VII pursuant to which such termination is effected, shall as promptly as practicable be given to the other parties to this Agreement and this Agreement shall become void terminate and the Contemplated Transactions shall be abandoned, without further action by any of no effect with the parties hereto. If this Agreement is terminated as provided herein: (i) there shall be no liability or further obligation of any kind on the part of any party hereto (Buyer, Acquisition Corp., Xxxxxx or of any of its their respective officers and directors, officers, employees, agents, legal and financial advisors or other representatives)all obligations of the parties shall terminate, except (i) as provided for the obligations of the parties pursuant to this Section 7.5, the obligations of the parties set forth in the Confidentiality Agreement referred to in Section 9.01 5.3, and any liabilities for any breach by the parties of the terms and conditions of this Agreement; and (ii) that no such all filings, applications and other submissions made pursuant to the transactions contemplated by this Agreement shall, to the extent practicable, be withdrawn from the agency or Person to which made.
(b) Notwithstanding any provision in this Agreement to the contrary, if this Agreement is terminated (i) by Xxxxxx pursuant to Section 7.4, (ii) by Xxxxxx or Buyer pursuant to Section 7.2(a), 7.2(b) or 7.2(d) or by Buyer pursuant to Section 7.3(e) and, in the case of this clause (ii) only, an Acquisition Proposal existed between the date hereof and the date of the termination of this Agreement, or (iii) by Buyer pursuant to Section 7.3(a) through (d), then, in each case, Xxxxxx shall relieve (without prejudice to any party hereto of any liability or damages resulting from any willful other rights Buyer may have against Xxxxxx for breach of this Agreement.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable reimburse Buyer upon demand by wire transfer of immediately available funds to an account specified in writing by Parent Buyer for all reasonable out-of-pocket fees and expenses incurred or paid by or on behalf of Buyer or any Affiliate of Buyer in connection with this Agreement and the Contemplated Transactions, including all fees and expenses of counsel, investment banking firms, accountants and consultants; provided, that Xxxxxx shall have no obligation to reimburse Buyer for any fees and expenses in excess of $500,000 in the event of any of the following:aggregate.
(1c) Notwithstanding any provision in the event that (A) an Acquisition Proposal shall have been made this Agreement to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter contrary, if this Agreement is terminated by either Parent or the Company (i) Xxxxxx pursuant to Section 7.4, (xii) Xxxxxx or Buyer pursuant to Section 8.02(a7.2(a) for failure or 7.2(b) or by Buyer pursuant to Section 7.3(e) and, in the case of this clause (ii) only, an Acquisition Proposal existed between the date hereof and the date of the Merger to be consummated by the date specified therein and such failure is the result termination of the knowing action this Agreement and, concurrently with or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months after any such termination an Acquisition Transaction is consummated or Xxxxxx or any of the termination Xxxxxx Subsidiaries shall enter into any letter of this Agreementintent, the Company consummates agreement in principle or other similar Contract with respect to an Acquisition Proposal;
Transaction, or (2iii) this Agreement is terminated by the Company Buyer pursuant to Section 8.03(a7.3(a) through (d); or
(3) this Agreement is terminated , then, in each case, Xxxxxx shall pay to Buyer as liquidated damages a termination fee of $6,685,000 by Parent pursuant wire transfer of immediately available funds to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required an account specified in writing by this Section 8.05(b) shall Buyer, such payment to be paid made promptly, but in no event later than two Business Days after (A) in the date case of termination; provided that clause (ii), the earlier to occur of such an Acquisition Transaction and the entry into such letter of intent, agreement in principle or other similar Contract with respect to clause an Acquisition Transaction, or (2B) abovein the case of clauses (i) and (iii), on the Termination Fee Business Day following such termination; provided, that if Xxxxxx is obligated to reimburse Buyer for any fees and expenses pursuant to Section 7.5(b), then such termination fee shall be paid reduced by the Company prior to termination amount of this Agreement; such fees and provided further expenses of Buyer that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposalare actually reimbursed by Xxxxxx.
(iiid) Notwithstanding any Termination Fee paid anything to Parentthe contrary in this Agreement, if Buyer receives a payment pursuant to Section 7.5(b) or 7.5(c), such Termination Fee shall upon payment thereof will constitute liquidated damages and be the sole and exclusive remedy for Parent with respect to any breach of any covenant or agreement giving rise to Buyer regardless of the circumstances of such payment, subject to Section 8.05(c)termination.
(ce) The Company acknowledges parties acknowledge that the agreements contained in paragraph (b) above this Section 7.5 are an integral part of the transactions contemplated by this Agreement, Agreement and that without such these agreements Parent Buyer would not have entered enter into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If the Company if Xxxxxx fails to promptly pay Parent any amount due pursuant to this Section 7.5 and, in order to obtain any such payment Buyer commences a suit which results in a judgment against Xxxxxx for any of the amounts due under paragraph (b) above within the time period specified thereinset forth in this Section 7.5, the Company Xxxxxx shall pay all to Buyer its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madesuit.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in this Section 9.05, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE IX, this Agreement shall will become void and of no effect with no liability or further obligation of Liability to any kind Person on the part of any party hereto (or of any of its directorsfuture, officerscurrent or former Affiliates or Representatives); provided, employeeshowever, agentsand notwithstanding anything in the foregoing to the contrary, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall will relieve any party hereto of its obligation to pay the Termination Fee or expense obligations pursuant to this Agreement or any liability or damages to any other party hereto resulting from any willful breach Willful Breach of this Agreement and (ii) the provisions set forth in this Section 9.05, Section 6.11 and ARTICLE X will survive the termination of this Agreement.
(a) If this Agreement is terminated:
(i) The Company shall pursuant to Section 9.02(c);
(ii) Section 9.03(a);
(iii) Section 9.04(a); or
(iv) Section 9.04(b) then Seller will pay a termination feeBuyer, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds funds, an amount equal to an account specified by Parent in the event of any of the following:
Termination Fee, (1y) in the case of clauses (a)(i) and (ii) above, simultaneous with such termination, and (z) in the case of clauses (a)(iii) and (iv) above, within two Business Days of such termination; provided, that in no event shall Seller be required to pay the Termination Fee on more than one occasion.
(b) If this Agreement is terminated pursuant to Section 9.03(b), then Buyer will pay Seller, by wire transfer of immediately available funds, an amount equal to the Termination Fee within two Business Days of such termination; provided, that in no event shall Buyer be required to pay the Termination Fee on more than one occasion.
(c) In the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company Buyer pursuant to (xSection 9.02(c), Section 9.03(a), Section 9.04(a) or Section 8.02(a) for failure 9.04(b), and at the time of such termination, all of the Merger conditions in Section 7.03 have been satisfied or waived other (or for such conditions which are to occur at the Closing, which only need to be consummated by the date specified therein and such failure is the result capable of the knowing action or inaction of the Company or being satisfied), then within two (y2) Section 8.02(b)(ii) and (C) within twelve (12) months of the Business Days after termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) Seller shall reimburse Buyer for all actual out-of-pocket expenses and fees paid or payable by Buyer in connection with this Agreement is terminated and the transactions contemplated hereby, such payment not to exceed $100,000; provided that any such amounts paid pursuant to this Section 9.05(c) shall be in addition to any amounts payable by the Company Seller pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d9.05(a).
(iid) Any Termination Fee required by Notwithstanding anything in this Agreement to the contrary, except in the event of Fraud or Willful Breach (and subject to each party’s right to pursue specific performance pursuant to Section 8.05(b) shall be paid promptly10.12), but in no event later than two Business Days after the date of termination; provided parties hereby agree and acknowledge that with respect the right to clause (2) above, receive the Termination Fee (and if applicable, the reimbursement of expenses pursuant to Section 9.05(c)), shall be paid by the Company prior to such party’s sole and exclusive remedy in connection with termination of this Agreement.
(e) For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, if this Agreement has not been validly terminated, each party shall have the right to specific performance pursuant to Section 10.12; provided, that, in no event shall either party be entitled to seek or specifically enforce any provisions of this Agreement or to obtain an injunction or injunctions to bring any other action or proceeding in equity in connection with the transactions contemplated by this Agreement against any the other party other than pursuant to Section 10.12.
(f) Each party acknowledges and provided further agrees that with respect to clause (1) above, the Termination Fee shall is not intended to be paid prior a penalty, but rather is liquidated damages in a reasonable amount that will compensate such party, in the circumstances in which such Termination Fee is due and payable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions which amount would otherwise be impossible to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposalcalculate with precision.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(cg) The Company acknowledges parties acknowledge and agree that the agreements contained in paragraph (b) above provisions of this Section 9.05 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent provisions, the parties would not have entered into this Agreement, and that such amounts do not constitute a penalty. If a party shall fail to pay to the Company fails to promptly pay Parent any other (or its designee) in a timely manner the amounts due under paragraph (b) above within pursuant to this Section 9.05, and, in order to obtain such payment, such party makes a claim against the time period specified thereinother that results in a judgment against the other party, the Company other party shall pay all to the claiming party the reasonable costs and expenses of the claiming party (including its reasonable attorneys’ feesfees and expenses) incurred by Parent from the date such amounts were required to be paid or accrued in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts set forth in this Section 9.05 at the publicly announced prime rate of interest printed as published in The Wall Street Journal in effect on the date such payment was required to be madeactually received, or a lesser rate that is the maximum permitted by applicable Law.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of that this Agreement is terminated and the abandonment of the Merger is abandoned pursuant to this Article VIIIVII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any member of its directorsthe Parent Group or the Company Group); provided, officers, employees, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability to pay the Company Termination Fee or damages resulting from the Parent Termination Fee, as applicable, pursuant to this Section 7.5 or, subject to Sections 7.5(e) and 7.5(f), relieve the Company or Parent or Merger Sub of any willful breach liability for any Willful Breach of this Agreement prior to such termination, and (ii) the provisions listed in the second sentence of Section 8.1 shall survive the termination of this Agreement. The party desiring to terminate this Agreement pursuant to Section 7.2, 7.3 or 7.4 shall give written notice of such termination, including a description in reasonable detail of the reasons for such termination, to the other parties in accordance with Section 8.6, specifying the provision or provisions hereof pursuant to which such termination is effected.
(b) In the event that:
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) this Agreement is terminated pursuant to Section 7.2(a), Section 7.2(b) or Section 7.4(b) (provided that with respect to Section 7.2(a) and Section 7.4(b), the Stockholder Approval has not been obtained); (B) any Person shall have publicly proposed, announced or made an Acquisition Proposal or, in the case of a termination pursuant to Section 7.4(b), an Acquisition Proposal shall have been made provided to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent Company’s management or the Company Board (or any committee thereof), in either case after the date of this Agreement and prior to the Stockholders Meeting (and such Acquisition Proposal shall not have been withdrawn at least two (2) Business Days prior to the Stockholders Meeting) and, in the case of a termination pursuant to (x) Section 8.02(a) 7.4(b), prior to the breach that forms the basis for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) termination; and (C) within twelve (12) months of the such termination of this Agreement, the Company consummates shall have consummated an Acquisition Proposal or entered into a definitive agreement for an Acquisition Proposal that is subsequently consummated (whether consummated within such twelve (12)-month period or thereafter), then the Company shall, on the date such Acquisition Proposal is consummated, pay the Company Termination Fee to Parent (or its designee) by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of clauses (B) and (C) above the references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a7.3(a), the Company shall, prior to or substantially concurrently with such termination, pay the Company Termination Fee to Parent by wire transfer of same day funds to one or more accounts designated by Parent; provided, that if (A) this Agreement is terminated by the Company pursuant to Section 7.3(a) prior to the No-Shop Period Start Date and (B) the Company has entered into a definitive Alternative Acquisition Agreement with an Excluded Party to consummate an Acquisition Proposal at the time of such termination, then the Company Termination Fee shall equal $110,000,000; or
(3iii) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d7.4(a).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in the Company shall, no event later than two three (3) Business Days after the date of such termination; provided that with respect to clause (2) above, pay the Company Termination Fee to Parent by wire transfer of same day funds to one or more accounts designated by Parent. For the avoidance of doubt, in no event shall be paid by the Company prior be required to termination of this Agreement; and provided further that with respect to clause (1) above, pay the Company Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)on more than one occasion.
(c) In the event that this Agreement is terminated by the Company pursuant to Section 7.3(c), then Parent shall, no later than three (3) Business Days after the date of such termination, pay or cause to be paid the Parent Termination Fee to the Company or its designees by wire transfer of same day funds to one or more accounts designated by the Company (it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion); provided, that any purported termination of this Agreement under Section 7.2(a) shall be deemed to be a termination under Section 7.3(c) if, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 7.3(c).
(d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent Termination Fee, in either case as required pursuant to this Section 7.5 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank’s prime lending rate. The Company acknowledges and Parent each acknowledge that the agreements contained in paragraph (b) above fees and the other provisions of this Section 7.5 are an integral part of this Agreement and are not a penalty, but rather liquidated damages in a reasonable amount that will compensate the other party in the circumstances in which such fee is payable, and that, without these provisions, the other party would not enter into this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, in the event that Parent and Merger Sub fail to effect the Closing or otherwise breach this Agreement or fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the termination of this Agreement as permitted by Section 8.7, (i) the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) Parent, Merger Sub, the Financing Parties and the Equity Investors, (B) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of Parent Merger Sub or any Equity Investor or (C) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Parent Group”) in respect of this Agreement, any agreement executed in connection herewith, including the Commitment Letters and each Limited Guarantee, and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Parent Termination Fee pursuant to Section 7.5(c) (including any interest payable pursuant to Section 7.5(d)) from Parent or pursuant to each Limited Guarantee and, as applicable, the reimbursements contemplated by this AgreementSections 5.9 and 5.13, and that without such agreements Parent would not have entered into (y) following the termination of this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified thereinAgreement by either party, the Company Company’s right to seek monetary damages from Parent in the event of Parent’s or Merger Sub’s Willful Breach of this Agreement prior to the termination of this Agreement (provided that in no event shall pay all costs Parent be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of an amount equal to the Parent Termination Fee (the “Damage Cap”)) and expenses (including attorneys’ feesii) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect upon payment of such amounts, together with interest on no member of the Parent Group shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith, the Commitment Letters or each Limited Guarantee, or the transactions contemplated hereby or thereby; provided, that in no event will the Company be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts in excess of the amount of the Damage Cap, (2) payment of both monetary damages and the Parent Termination Fee in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any monetary damages and/or the Parent Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against Parent or Merger Sub that results in the Closing.
(f) Notwithstanding anything to the contrary in this Agreement, in the event that the Company fails to effect the Closing or otherwise breaches this Agreement or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the termination of this Agreement as permitted by Section 8.7, (i) Parent’s and Merger Sub’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) the Company and its Subsidiaries, (B) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of the Company or its Subsidiaries or (C) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Company Group”) in respect of this Agreement, any agreement executed in connection herewith and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Company Termination Fee pursuant to Section 7.5(b) (including any interest payable pursuant to Section 7.5(d)) from the Company, and (y) following the termination of this Agreement by either party, Parent’s right to seek monetary damages from the Company in the event of the Company’s Willful Breach of this Agreement prior to the termination of this Agreement (provided that in no event shall the Company be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of the Damage Cap) and (ii) upon payment of such unpaid amounts, no member of the Company Group shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby or thereby; provided, that in no event will Parent and Merger Sub be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts at in excess of the publicly announced prime rate amount of interest printed the Damage Cap, (2) payment of both monetary damages and the Company Termination Fee in The Wall Street Journal on a combined amount in excess of the date such Damage Cap, or (3) both (x) payment was required to be madeof any monetary damages and/or the Company Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against the Company that results in the Closing.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 9.5(b), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE IX, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto Party (or of any of its directorsRepresentatives or Affiliates, officersincluding any Lender Related Party); provided, employeeshowever, agentsand notwithstanding anything to the contrary set forth in this Agreement, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto Party of any liability or damages to the other Parties resulting from any willful material breach of this Agreement and (ii) the provisions set forth in this Section 9.5 and the second sentence of Section 10.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat this Agreement is terminated:
(1i) by either the Company or Parent pursuant to Section 9.2(a) [Outside Date], or pursuant to Section 9.2(b) [Requisite Company Vote Not Obtained] and, in the event that each case,
(A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn on a bona fide basis without qualification (1) prior to the date of termination, with respect to any termination pursuant to Section 9.2(a) [Outside Date], or (2) prior to the date of the Company Shareholders Meeting, with respect to termination pursuant to Section 9.2(b) [Requisite Company Vote Not Obtained]), and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreementafter such termination, the Company consummates shall have entered into any Alternative Acquisition Agreement with respect to any Acquisition Proposal (with “fifty percent (50%)” being substituted in lieu of “twenty percent (20%)” in each instance thereof in the definition of “Acquisition Proposal” for this purpose), and within eighteen (18) months after such termination, there shall have been consummated an Acquisition Proposal;
Proposal with respect to the Company, then immediately prior to or concurrently with the occurrence of such consummation, or (2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b9.4(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid [Change of Recommendation; Alternative Acquisition Agreement], then promptly, but in no event later than two three (3) Business Days after the date of such termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.or
(iii) Notwithstanding any by the Company pursuant to Section 9.3(b) [Fiduciary Out for Superior Proposal], then upon the earlier to occur of (A) six (6) months following such termination or (B) the consummation of such Superior Proposal, the Company shall pay the termination fee of $111,500,000.00 (the “Company Termination Fee”), to Parent in each case by wire transfer of immediately available cash funds. In no event shall the Company be required to pay the Company Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)on more than one occasion.
(c) The Company acknowledges Parties acknowledge that the agreements contained set forth in paragraph (b) above this Section 9.5 are an integral part of the transactions contemplated by this AgreementAgreement and that, and that without such agreements Parent these agreements, the other Parties would not have entered enter into this Agreement. Notwithstanding anything in this Agreement to the contrary, the Parties hereby acknowledge and agree that in the event that the Company Termination Fee becomes payable by, and that such amounts do not constitute a penaltyis paid by, the Company and accepted by Parent pursuant to Section 9.5(b), the Company Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages pursuant to this Agreement. If the Company fails to promptly pay the amount due pursuant to this Section 9.5, and, in order to obtain such payment, Parent commences a suit that results in a judgment against the Company for the fees set forth in this Section 9.5 or any amounts due under paragraph (b) above within the time period specified thereinportion of such fees, the Company shall pay all to Parent its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate shown at the end of interest printed in The Wall Street Journal the trading day on Bloomberg screen BTMM or PRIME INDEX HP, whichever is higher, on the date such payment was required to be mademade through the date of payment.
Appears in 1 contract
Samples: Merger Agreement (Syntel Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than this Section 8.5, Sections 5.3(c) and 6.13, and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors advisors, or other representatives); provided, however, that except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with in respect to of the Company or any of its subsidiaries and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xSection 8.2(b) or by the Parent pursuant to Section 8.02(a8.4(b) for failure as a result of a material breach by the Company of any of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or covenants set forth in Section 6.5 hereof (y) Section 8.02(b)(ii) and (C) provided that within twelve (12) 9 months of the termination of this AgreementAgreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by the Company consummates an Acquisition Proposal;
Company) or (2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
, or (3iii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(a)(i), or (iv) this Agreement is terminated by Parent pursuant to Section 8.4(a)(ii) and, within 9 months of such termination, any Acquisition Proposal by any third party is entered into, agreed to or Section 8.04(d).
consummated by the Company, then the Company shall pay Parent a termination fee of $223,203,810 in same-day funds, on the date of such termination, in the case of clause (ii) Any Termination Fee required by this Section 8.05(bor (iii), or on the earlier of the date an agreement is entered into in respect of an Acquisition Proposal or an Acquisition Proposal is consummated in the case of clause (i) shall or (iv), provided, -------- however, that notwithstanding the foregoing, Parent will not be paid promptlyentitled to a ------- termination fee pursuant to clause (i) or (iv) above in the event the Acquisition Proposal entered into, but agreed to or consummated after such termination is an Acquisition Proposal whereby (A) the Company or any of its subsidiaries acquires a third party (the "Exempt Acquired Person") pursuant to a merger, consolidation, recapitalization, share exchange or similar transaction in which the Company survives and the shareholders of the Exempt Acquired Person receive shares of Company Common Stock which, immediately following consummation of such merger, consolidation, recapitalization, share exchange or similar transaction, will represent no event later more than two Business Days 45% of the issued and outstanding shares of Company Common Stock (or securities convertible or exchangeable into, or exercisable for Company Common Stock, whether upon the passage of time or otherwise) and (B) such Exempt Acquired Person, or any affiliate or affiliates thereof, was or were not the subject of an Acquisition Proposal at any time after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company hereof and prior to the termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (bSection 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within commences a suit which results in a judgment against the time period specified thereinCompany for the fee set forth in this Section 8.5, the Company shall pay all to Parent its costs and expenses (including including, attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the publicly announced prime rate of interest printed Bank of America, N.A., in The Wall Street Journal on the date effect from time to time during such payment was required to be madeperiod.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than this Section 8.5 and Sections 5.3(d), 6.14 and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in this Section 9.01 and (ii) that 8.5, no such termination shall relieve any party hereto of any liability or damages resulting from (i) any willful breach of any representations or warranties contained in this Agreement or (ii) any breach of any covenant or agreement contained in this Agreement.
(b) In the event that (i) The this Agreement is terminated by the Company pursuant to Section 8.3(a), or (ii) this Agreement is terminated by Parent pursuant to Section 8.4(a), or (iii) if within 18 months of the termination of this Agreement pursuant to Section 8.2(b) or by Parent pursuant to Section 8.4(b) any Acquisition Proposal by a third party is entered into, agreed to or consummated by the Company, then the Company shall pay a termination fee, representing liquidated damages, of $9,100,000 Parent (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified designated by Parent Parent) a termination fee of $30,000,000 plus, subject to the last sentence of this Section 8.5(b), the reimbursement of all of Parent's actual and documented expenses up to a maximum reimbursed amount of $5,000,000 (the "PARENT EXPENSES"), on the date of such termination, in the event case of any clauses (i) or (ii), or on the earlier of the following:
(1) date an agreement is entered into with respect to an Acquisition Proposal or an Acquisition Proposal is consummated in the event that case of clause (A) iii). In addition, if an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement8.2(b), the Company consummates an Acquisition Proposal;shall promptly on demand reimburse all of the Parent Expenses and thereafter be obligated to pay the termination fee only in the event such fee is payable pursuant to this Section 8.5(b).
(2c) In the event that this Agreement is terminated by the Company pursuant to Section 8.03(a); or
8.3(d) and, at the time of such termination, (3i) Parent would not have been entitled to terminate this Agreement is terminated by Parent pursuant to Section 8.04(b8.2 or 8.4, (ii) all conditions set forth in Sections 7.1 and 7.2 (other than Section 7.1(a), Section 7.1(d) (to the extent such condition is not satisfied by reason of any breach by Parent) and those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived or shall remain capable of being satisfied on or prior to the Termination Date and (iii) the Company shall not have sold its Xxxxxxx Tubular Division, Parent shall pay to the Company, promptly on demand, $3,500,000 in respect of the Company's expenses in connection with the transactions contemplated by this Agreement; provided that if, within 18 months of the termination of this Agreement pursuant to Section 8.04(d8.3(d), the Company consummates a sale of its Xxxxxxx Tubular Division, the Company shall, promptly on demand, repay such $3,500,000 to Parent.
(iid) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date Each of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (bSections 8.5(b) above and 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, the Company, Parent and the Operating Company would not have entered into this Agreement; 66 accordingly, and that such amounts do not constitute a penalty. If if the Company or Parent fails to promptly pay the amount due pursuant to Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within or the time period specified thereinCompany commences a suit which results in a judgment against the Company or Parent for the fee set forth in this Section 8.5, the Company or Parent, as the case may be, shall pay all to the other its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the publicly announced prime rate of interest printed The Fifth Third Bank in The Wall Street Journal on the date effect from time to time during such payment was required to be madeperiod plus two percent (2%).
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and or the abandonment of any of the Merger Transactions pursuant to this Article VIIIArticle, the applicable provisions of this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xSections 8.2(a), 8.2(b)(i) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(bb)(iii) or Section 8.04(d8.3(c).
(ii) Any Termination Fee required by this Section 8.05(b) , then the Group shall be paid promptly, but in no event later than two Business Days days after the date Company is notified of termination; provided that with respect such by the relevant Holders, pay all of the fees and expenses required to clause (2) above, the Termination Fee shall be paid pursuant to Section 6.9 (Expenses), in each case payable by wire transfer of same day funds. In the event that this Agreement is terminated by any party pursuant to Section 8.3(a)(i), by the Company prior pursuant to termination of this Agreement; and provided further that with respect Section 8.3(b)(ii)(B) or by the Noteholders pursuant to clause (1) aboveSection 8.3(c), the Termination Fee provisions of Annex A shall be paid prior thereafter become applicable; provided, however, that in the case of termination by the Company pursuant to Section 8.3(b)(ii)(B) or by the Noteholders pursuant to Section 8.3(c)(ii), the provisions of Annex A shall not become applicable unless the terminating party, in its sole discretion, elects to make Annex A applicable and notifies the other parties to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or of such election within two Business Days following five (5) business days after providing notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) termination. The Company Group acknowledges that the agreements contained in this paragraph (b) above are an integral part of the Transactions and the other transactions contemplated by this Agreementhereby and that, and that without such agreements Parent these agreements, the Holders would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company Group fails to promptly pay Parent the amount due pursuant to this paragraph, and, in order to obtain such payment, any amounts due under paragraph (b) above within Holder commences a suit which results in a judgment against the time period specified thereinany of the Group for the fee set forth in this paragraph, the Company Group shall pay all to the applicable Holder its costs and expenses (including reasonable attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced U.S. prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be made.
Appears in 1 contract
Samples: Restructuring Agreement (Personnel Group of America Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, this Agreement no party hereto (or any of its directors or officers) shall become void and of no effect with no have any liability or further obligation of to any kind on the part of any other party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives)to this Agreement, except (i) as provided in Section 9.01 9.5(b) below and (ii) Section 10.2 and except that no such termination shall nothing herein will relieve any party hereto of from liability for any liability or damages resulting from any willful wilful breach of its covenants under this Agreement.
(b) If (x)
(i) The Company the Offer shall pay have remained open for a minimum of at least 20 business days, (ii) after the date hereof any corporation, partnership, person, other entity or group (as defined in Section 13(d)(3) of the Exchange Act) other than Parent or Merger Sub or any of their respective subsidiaries or affiliates (collectively, a "Person") shall have become the beneficial owner of 15% or more of the outstanding Shares or made (and not withdrawn) any Acquisition Proposal, (iii) the Minimum Condition shall not have been satisfied and the Offer is terminated pursuant to Section 9.3(x) (but only if such termination fee, representing liquidated damages, relates to a breach of $9,100,000 (the “Termination Fee”Company's obligations under Section 7.2) or pursuant to Parent payable by wire transfer of immediately available funds to an account specified by Parent in Section 9.2(i) without the event purchase of any Shares thereunder and (iv) within twelve months of such termination the following:
Company enters into an agreement (1other than a confidentiality agreement in customary form) in the event that (A) with respect to an Acquisition Proposal (as such term is defined in Section 7.2, except that the reference in such definition to 15% shall have been made be deemed a reference to the Company 40% for purposes of this clause (iv) only) or any person or other entity (other than Parent or any of its stockholders affiliates) becomes the beneficial owner of 40% or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure more of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or outstanding Shares, (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) Parent shall have terminated this Agreement is terminated by the Company pursuant to Section 8.03(a9.3(y); or
, or (3z) the Company shall have terminated this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d9.4(y).
(ii) Any Termination Fee required by this Section 8.05(b) , then the Company shall be paid promptly, but in no event later than two Business Days five business days after the date of termination; provided that with respect a request by Parent for payment of such fee (other than a termination pursuant to clause (2) aboveSection 9.4(y), the Termination Fee in which case payment shall be paid by the Company prior to termination concurrent with termination), pay Parent a fee of this Agreement; and provided further that with respect to clause (1) above$12,750,000, the Termination Fee which amount shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) payable in same day funds. The Company acknowledges that the agreements contained in paragraph (bthis Section 9.5(b) above are an integral part of the transactions contemplated by in this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay Parent any amounts the amount due under paragraph (b) above within the time period specified thereinpursuant to this Section 9.5(b), the Company shall pay all costs and expenses (including attorneys’ fees) incurred by to Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with or Merger Sub interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed in The Wall Street Journal Citibank N.A. on the date such payment was required to be made.. In the event that either party commences a suit concerning the payment of the fee set forth in this paragraph (b) which results in a judgment against either party, the non-prevailing party shall pay to the prevailing party the prevailing party's costs and expenses (including attorneys' fees) in connection with such suit. -42- 42 ARTICLE X
Appears in 1 contract
Samples: Merger Agreement (Koninklijke Philips Electronics Nv)
Effect of Termination and Abandonment. (a) In the event of the termination of this Agreement, this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of Parent, Merger Sub or the Company, except as otherwise expressly provided herein and except that the Confidentiality Agreement and the provisions of Section 6.8 (Publicity), Section 6.10 (Expenses), Section 6.13(e), Section 8.2 (Effect of Termination and Abandonment), and Article IX of this Agreement shall survive the termination hereof. Notwithstanding the foregoing, the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except not relieve (i) as provided in Section 9.01 Parent and Merger from any liability for up to an aggregate of $1,500,000 of monetary damages resulting or arising from such parties’ Fraud occurring prior to such termination and (ii) that no such termination shall relieve any party hereto of the Company from any liability or for up to an aggregate of $1,500,000 of monetary damages resulting or arising from any willful breach of such party’s Fraud occurring prior to such termination.
(b) In the event that this Agreement.Agreement is terminated:
(i) The (A) by either the Company or Parent pursuant to Section 8.1(b) (Outside Date) or Section 8.1(c) (Company Stockholder Approval Not Obtained) or by Parent pursuant to Section 8.1(e) (Company Breach);
(A) following the date of this Agreement, an Acquisition Proposal shall have been made publicly or announced or otherwise becomes known, disclosed, or communicated to the Company, the Company Board, or the Special Committee; and
(B) concurrently with or within twelve (12) months of such termination, the Company shall have entered into an Alternative Acquisition Agreement with respect to an Acquisition Proposal (regardless of whether the transaction contemplated by such Alternative Acquisition Agreement occurs within the 12-month period) or shall have consummated a transaction that constitutes an Acquisition Proposal; provided that, for purposes of this Section 8.2(b), the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) by Parent pursuant to Section 8.1(g) (Change of Recommendation); or
(iii) by the Company pursuant to Section 8.1(h) (Superior Proposal) or Section 8.1(i) (Intervening Event); then, (1) in the case of Section 8.2(b)(i), upon the earlier of the entry into such definitive agreement or the consummation of such transaction that constitutes an Acquisition Proposal (2) in the case of Section 8.2(b)(ii), as soon as practicable (but in any event within two (2) Business Days) after the termination of this Agreement, and (3) in the case of Section 8.2(b)(iii), substantially concurrently with or prior to the termination of this Agreement, the Company shall pay or cause to be paid a termination fee, representing liquidated damages, fee of $9,100,000 5,277,367 (the “Company Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified designated in writing by Parent. The parties agree that the payment of the Company Termination Fee shall constitute liquidated damages and not a penalty and, together with (i) Parent’s and Merger Sub’s right to up to an aggregate of $1,500,000 of monetary damages resulting or arising from Fraud by the Company, and (ii) a decree or order of specific performance or an injunction or injunctions or other relief pursuant to Section 9.5(b), shall be the sole and exclusive remedies available to Parent in and Merger Sub with respect to this Agreement and the transactions contemplated hereby.
(c) In the event of any of the followingthat this Agreement is terminated:
(1i) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a8.1(f); or
(3ii) this Agreement is terminated by Parent the Company pursuant to Section 8.04(b8.1(j); then, within three (3) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; , Parent shall pay or cause to be paid a termination fee in an amount equal to $750,000 (the “Parent Termination Fee”) to the Company by wire transfer of immediately available funds to an account designated in writing by Parent. The parties agree that the payment of the Parent Termination Fee shall constitute liquidated damages and provided further that not a penalty and, together with (i) the Company’s right to up to an aggregate of $1,500,000 of monetary damages resulting or arising from Fraud by Parent or Merger Sub, (ii) a decree or order of specific performance pursuant to Section 9.5(d) or pursuant to the Equity Commitment Letter or the Rollover Agreement, and (iii) the Guarantee shall be the sole and exclusive remedies available to the Company with respect to clause (1) above, this Agreement and the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposaltransactions contemplated hereby.
(iiid) Notwithstanding any In no event shall the Company or Parent be required to pay the Company Termination Fee paid to Parentor Parent Termination Fee, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such paymentrespectively, subject to Section 8.05(c)on more than one occasion.
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability to pay the Termination Fee or damages resulting from any willful breach Parent Fee pursuant to this Section 8.5, and (ii) the agreements of the Company, Parent and Merger Sub contained in Section 6.10 (Expenses), the indemnification and reimbursement provisions of Section 6.14(b) (Financing), this Section 8.5, Article IX, the Confidentiality Agreement and the Guaranty shall survive the termination of this AgreementAgreement (in the case of the Confidentiality Agreement and Guaranty, subject to the terms thereof).
(b) In the event that:
(i) The (x) before obtaining the Company shall pay a termination feeRequisite Vote, representing liquidated damages, of $9,100,000 this Agreement is terminated pursuant to Section 8.2(a) (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made section relating to the Company Termination Date) or any of its stockholders or Section 8.2(b) (the section relating to failure to receive stockholder approval), (y) any Person shall have publicly announced an intention (whether or not conditional) to make an made a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination or, with respect to a termination pursuant to Section 8.2(b), prior to the Company Stockholders Meeting and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (Cz) within twelve (12) months of after such termination the termination Company shall have entered into a definitive agreement with respect to an Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this Agreement, clause (z) the Company consummates an references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) (the section relating to a Change of Recommendation); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a) (the section relating to an Alternative Acquisition Agreement); orthen the Company shall:
(3A) this Agreement is terminated by Parent pursuant to Section 8.04(bin the case of clause (i) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptlyabove, promptly but in no event later than two Business Days three (3) business days after the date on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, pay Parent the Termination Fee by wire transfer of immediately available funds;
(B) in the case of clause (ii) above, promptly but in no event later than three (3) business days after the date of such termination, pay Parent the Termination Fee by wire transfer of immediately available funds; provided that with respect to and
(C) in the case of clause (2iii) above, immediately prior to or substantially concurrently with such termination, pay Parent the Termination Fee by wire transfer of immediately available funds (it being understood that in no event shall be paid by the Company prior be required to termination of this Agreement; and provided further that with respect to clause (1) above, pay the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(con more than one occasion).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Commscope Inc)
Effect of Termination and Abandonment. (a) In the event of a termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no further force or effect with and no party shall have any liability or further obligation of to any kind on the part of any other party hereto (or of any of its directorsRepresentatives or Affiliates) with respect hereto; provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agentsthat, legal and financial advisors or other representatives), except (i) as provided this Section 8.5 and the provisions set forth in the second sentence of Section 9.01 9.1 shall survive the termination of this Agreement and the parties hereto may have further liability with respect thereto, and (ii) that no such termination shall relieve any party hereto liability may exist for willful or intentional breaches of any liability this Agreement (where willful or damages resulting from any willful intentional breach means a breach of this Agreement by a party that has actual knowledge that its action (or failure to act) would reasonably be expected to breach this Agreement) by a party prior to the time of such termination and, in the case of Parent and Merger Sub, any failure to have sufficient immediately available funds at the Closing for the consummation of the Closing Date Transactions (which liability the parties hereto acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs).
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter If this Agreement is terminated by either Parent or the Company pursuant to Section 8.3(e), Section 8.3(f), Section 8.4(a), Section 8.4(d) or Section 8.4(e), and any alternative transaction is consummated (xincluding pursuant to any Chapter 7 proceedings or any transaction or proceeding that permits the E-Side Debtors that are the direct or indirect owners of Oncor Holdings to emerge from the Chapter 11 Cases) Section 8.02(apursuant to which none of Parent, Merger Sub or any of their respective Affiliates will obtain direct or indirect ownership of 100% of Oncor Holdings and Oncor Holdings’ approximately 80% equity interest in Oncor, then, if the Approval Order has been entered, no later than five (5) for failure days following the consummation of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreementalternative transaction, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant and EFIH shall pay to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid (as defined below), by wire transfer, as directed by Parent, in immediately available funds. In the event the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, EFIH pay the Termination Fee shall be paid prior pursuant to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parentthis Section 8.5(b), such Termination Fee payment shall upon payment thereof be the sole and exclusive remedy for of Parent and Merger Sub against the Company, EFIH and their respective Affiliates, Representatives, creditors or shareholders with respect to any breach of any covenant or agreement giving rise this Agreement prior to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penaltytermination. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified thereinApproval Order has been entered, the Company’s and EFIH’s obligation to pay the Termination Fee pursuant to this Section 8.5(b) shall survive the termination of this Agreement. If the Approval Order has been entered, the Termination Fee shall constitute an administrative expense of the Company and EFIH under the Bankruptcy Code. “Termination Fee” shall pay mean an amount equal to $190,000,000, inclusive of all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any actionexpense reimbursements, including reasonable and documented professional fees of Parent and Merger Sub; provided that, in no event shall such claim be senior or pari passu with the filing of any lawsuit, taken superpriority administrative claims granted to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at secured parties pursuant to the publicly announced prime rate of interest printed DIP Facility (as in The Wall Street Journal effect on the date such payment was required to be madehereof).
Appears in 1 contract
Samples: Merger Agreement (Sempra Energy)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 6.2 (as to the Parent-Company standstill agreement), Section 6.11, this Section 8.5 and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of from any liability or for damages to any other party resulting from any prior willful or intentional breach of this AgreementAgreement or from any obligation to pay, if applicable, the fees and reimbursement of expenses in accordance with Sections 6.11, 8.5(b) or 8.5(c).
(ib) The If this Agreement is terminated by the Company pursuant to Section 8.3(b), the Company shall pay to Parent a termination fee, representing liquidated damages, of fee equal to $9,100,000 1.7 billion (the “"Termination Fee”") at the time set forth in Section 8.3(b). If this Agreement is terminated by Parent pursuant to Section 8.4(c) the Company shall promptly, but in no event later than two days after such termination, pay to Parent payable the Termination Fee by wire transfer of immediately available funds to an account specified same day funds. If (i) this Agreement is terminated (x) by Parent in or the event of any of the following:
Company pursuant to Section 8.2(b) or (1y) by Parent pursuant to Section 8.4(a) or pursuant to Section 8.4(b) (solely with respect to a willful and intentional breach), (ii) in the event that case of clause (A) an Acquisition Proposal shall have been made x), prior to the vote on adoption of this Agreement at the Company Shareholders Meeting, but after the date of this Agreement, one or more bona fide Acquisition Proposals (other than from Parent or any of its stockholders Subsidiaries) involving 50% or more of the outstanding Company Shares or assets of the Company (including its interests in Cingular) representing 50% or more of the fair market value of the consolidated assets of the Company (including its interests in Cingular) or otherwise involving a transaction or series of transactions that could reasonably be expected to result in value to holders of Company Shares comparable to or more favorable than the transactions contemplated by this Agreement (a "Covered Proposal") shall have been publicly made or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition a Covered Proposal with respect to and, in the case of clause (y), a Covered Proposal shall have been made after the date of this Agreement and (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its affiliates or the Company and any of its Subsidiaries) (Ban "Acquiring Person") thereafter this Agreement is terminated has acquired, or has entered into an agreement to acquire, by either Parent acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding Company Shares (or shareholders of the Company immediately prior to such transaction cease to hold at least 50% of the Company Shares (or any successor shares) after such transaction) or at least 50% of the fair market value of the Company's consolidated assets (including its interests in Cingular) or the Company pursuant to (x) Section 8.02(a) for failure or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the Merger to be consummated by the date specified therein and such failure is the result fair market value of the knowing action Company's consolidated assets or inaction of the Company or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that in, one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer -64- or similar transaction and thereafter completes such transaction or a substantially similar transaction (y) Section 8.02(b)(ii) and (C) within twelve (12) months of it being understood that a difference in consideration shall not be taken into account in determining if the termination of this Agreementcompleted transaction is substantially similar), then the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days days after the date completion of termination; provided that with respect to clause (2) abovesuch transaction or the time such agreement is entered into as the case may be, pay Parent the Termination Fee shall be paid (less any amounts reimbursed to Parent pursuant to the next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or the Company prior pursuant to termination of this Agreement; and provided further that with respect Section 8.2(b) or by Parent pursuant to clause (1) aboveSection 8.4(a), the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if then the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to promptly, but in no event later than two days after a request from Parent, reimburse Parent for all fees and expenses (up to a maximum of $120 million) incurred by Parent and its Subsidiaries (plus 60% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such Termination Fee shall upon payment thereof reimbursement amount to be the sole remedy for Parent with respect to any breach payable by wire transfer of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) same day funds. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to pay promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within or Merger Sub commences a suit which results in a judgment against the time period specified thereinCompany for the fee set forth in this Section 8.5(b), the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required should have been made.
(c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c) or by the Company pursuant to Section 8.3(a), (ii) prior to Parent Stockholders Meeting, but after the date of this Agreement, a Covered Proposal (for this purpose substituting therein Parent for each reference to the Company and Parent Common Stock for each reference to Company Shares and disregarding the second proviso in the definition of "Acquisition Proposal" and substituting "Section 6.1(b)(viii)" for "Section 6.1(a)(ix) or (xiii)" in the definition of "Acquisition Proposal") other than any such Acquisition Proposal from the Company or any of its Subsidiaries (a "Parent Covered Proposal") shall have been publicly made or any Person shall have publicly announced an intention (whether or not conditional) to make a Parent Covered Proposal and (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its Subsidiaries or the Company and any of its Subsidiaries) (a "Parent Acquiring Person") has acquired, or has entered into an agreement to acquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding shares of Parent Common Stock (or stockholders of Parent immediately prior to such transactions cease to hold at least 50% of the shares of Parent Common Stock (or successor shares) after such transaction) or at least 50% of the fair market value of Parent's consolidated assets (including its interest in Cingular) or Parent or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of Parent's consolidated assets or Parent or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that, in one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall not be taken into account in determining if the completed transaction is substantially similar), then Parent shall promptly, but in no event later than two days after the date of consummation of such acquisition or at the time such agreement is entered into, as the case may be, pay to the Company the Termination Fee (less any amounts reimbursed to the Company pursuant to the next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c) or by the Company pursuant to Section 8.3(a), then Parent shall promptly, but in no event later than two days after a request from the Company, reimburse the Company for all fees and expenses (up to a maximum of $120 million) incurred by the Company and its Subsidiaries (plus 40% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such reimbursement amount to be payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to pay promptly the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee or reimbursement set forth in this Section 8.5(c), Parent shall pay to the Company its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment should have been made.
Appears in 1 contract
Samples: Merger Agreement (At&t Inc.)
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 8.2(b) and Section 8.2(c), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto Party (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything to the contrary in this Agreement, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto Party of any liability or damages to the other Parties resulting from any willful breach Willful Breach of this Agreement prior to such termination and (ii) the provisions set forth in this Section 8.2 and the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat this Agreement is terminated:
(1i) by either Party pursuant to Section 8.1(b) [Outside Date] or Section 8.1(c) [Requisite Company Vote Not Obtained], or by Parent pursuant to Section 8.1(f)(i) [Company Breach] as a result of any breach by the Company of its covenants and agreements (other than Section 6.4) set forth in the event that this Agreement, and,
(A) an Acquisition Proposal involving the Company shall have been made received by the Company prior to such termination (in the case of a termination pursuant to Section 8.1(b) or Section 8.1(f)(i)) or prior to the date of the Company Stockholders Meeting (in the case of a termination pursuant to Section 8.1(c)), and
(B) within 12 months after such termination, (1) the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement to consummate an Acquisition Proposal, and such Acquisition Proposal is thereafter consummated (whether within or after such 12-month period), or (2) an Acquisition Proposal is otherwise consummated with respect to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) Subsidiaries within twelve (12) 12 months of such termination (with “50%” being substituted in lieu of “20%” in each instance thereof in the termination definition of this Agreement, the Company consummates an “Acquisition Proposal;
(2) ” for this Agreement is terminated by the Company pursuant to Section 8.03(apurpose); , then concurrently with such consummation, or
(3ii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.1(f)(i) or [Company Breach] as a result of the Company’s breach of the covenants set forth in Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid 6.4, then promptly, but in no event later than two Business Days after the date of such termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.or
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for by Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject pursuant to Section 8.05(c).
(c8.1(g) The [Failure to Include Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.Recommendation;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in paragraphs (b) and (c) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(1) in the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn at least (A) ten (10) business days prior to, with respect to any termination pursuant to Section 8.2(a), the Termination Date, and (B) with respect to termination pursuant to Section 8.2(b), at least 10 business days prior to the date of the Stockholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) (xTermination Date) Section 8.02(aor 8.2(b) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition ProposalNo Stockholder Approval);
(2ii) this Agreement is terminated (A) by Parent pursuant to Section 8.4(a), (b), (c) or (d) or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date of the Stockholders Meeting, any event giving rise to Parent’s right to terminate under Section 8.4(a), (c) or (d) shall have occurred; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a) (Fiduciary Out); or
(3) this Agreement is terminated by Parent pursuant to , then in any case of Section 8.04(b) or Section 8.04(d8.5(b)(i).
, (ii) Any Termination Fee required by this Section 8.05(bor (iii) the Company shall be paid promptly, but in no event later than two Business Days days after the date of such termination; provided , pay Parent a termination fee of $14,500,000 (the “Termination Fee”) (provided, however, that with respect the Termination Fee to be paid pursuant to clause (2iii) aboveshall be paid as set forth in Section 8.3); provided, the however, that no Termination Fee shall be paid by the Company prior payable to termination of this Agreement; and provided further that with respect Parent pursuant to clause (i) of this paragraph (b) unless and until within 12 months of such termination, (1) above, the Termination Fee Company or any of its Subsidiaries shall be paid prior to the Company’s entering have entered into an Alternative Acquisition Agreement with respect to, or consummating, approving shall have consummated or recommending shall have approved or recommended to the Company’s stockholders an Acquisition Proposal or (2) there shall have been consummated an Acquisition Proposal (substituting in both instances “50%” for “20%” in the definition of “Acquisition Proposal”); provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within two Business Days following notice from Parent if 12 months of such termination, the Company or any of its Subsidiaries shall have failed to oppose such entered into an Alternative Acquisition Proposal.
Agreement (iiiother than a confidentiality agreement) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to, or shall have consummated or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal made by or on behalf of such Person or any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) its Affiliates. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any amounts due under paragraph (b) above within the time period specified thereinportion of such fee, the Company shall pay all to Parent or Merger Sub its out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be mademade through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company pursuant to this Section 8.5(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
(c) If this Agreement is terminated by Parent or the Company pursuant to (i) Section 8.2(a) (Termination Date) and at the time of such termination, all of the conditions to closing set forth in Article VII have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing) other than the conditions set forth in Section 7.1(b) or Section 7.2(c); provided that the Company was not in material breach of its obligations under Section 6.5(a), (b) or (c) or (ii) Section 8.2(c) (Final Order) where there is a final non-appealable Order permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger under any Antitrust Laws; provided that the Company was not in material breach of its obligations under Section 6.5(a), (b) or (c), then Parent shall promptly, but in no event later than two days after being notified of such by the Company, pay to the Company a termination fee of $20,000,000 (the “Parent Termination Fee”) and shall promptly, but in no event later than two days after being notified of such by the Company, pay all of the documented out-of-pocket expenses of the Company for its outside legal counsel in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $2,500,000, in each case, payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to promptly pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for the fee set forth in this Section 8.5(c) or any portion of such fee, Parent shall pay to the Company its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event the Parent Termination Fee becomes payable and is paid by Parent pursuant to this Section 8.5(c), the Parent Termination Fee shall be the Company’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of If this Agreement or the transactions contemplated hereby are terminated and the abandonment if any one of the Merger pursuant following conditions has been satisfied, then the Company shall pay to this Article VIIIWatsxx, this Agreement shall become void and xx later than five (5) business days after the date on which one of no effect with no liability or further obligation of any kind on the part of any party hereto following conditions is satisfied (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except (i) as otherwise provided in Section 9.01 and (ii7.1(e) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
hereof), a fee equal to $5,000,000: (i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a7.1(e); or
(3ii) this Agreement is terminated by Parent Watsxx xxxsuant to Section 7.1(d); (iii)(A) this Agreement is terminated by the Company pursuant to Section 8.04(b7.1(b)(i) or by Watsxx xxxsuant to Section 8.04(d7.1(g).
; and (iiB) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days within four months after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that , the Company enters into an agreement or an understanding with respect to clause an Alternative Proposal or consummates a transaction with respect to an Alternative Proposal; and (iv)(A) this Agreement is terminated by Watsxx xxxsuant to Section 7.1(c); and (B) within one (1) aboveyear after the termination of this Agreement, the Termination Fee shall be paid prior to the Company’s entering Company enters into an agreement or an understanding with respect to an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if consummates a transaction with respect to an Alternative Proposal. In the event of and upon payment of the full Five Million Dollar ($5,000,000) termination fee pursuant to this Section 7.2(a), the Company shall have failed no further liability to oppose such Acquisition ProposalWatsxx xx connection with this Agreement or the transactions contemplated hereby.
(iiib) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be If the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject Company terminates this Agreement pursuant to Section 8.05(c7.1(f), Watsxx xxxll reimburse the Company for all actual out-of-pocket costs and expenses incurred by the Company in connection with this Agreement and the consummation and negotiation of the transactions contemplated hereby, including, without limitation, reasonable legal, professional and service fees and expenses, which amount shall be payable by wire transfer of same day funds no later than ten (10) business days after receiving detailed documentation detailing such costs and expenses.
(c) The Company acknowledges that the agreements contained in paragraph (bIf Watsxx xxxminates this Agreement pursuant to Section 7.1(c) above are an integral part of the transactions contemplated by this Agreementor 7.1(g), and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.the
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE IX, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful breach of this Agreement, and (ii) the provisions set forth in the second sentence of Section 10.1 shall survive the termination of this Agreement.
(ib) The Company shall pay Parent a termination fee, representing liquidated damages, fee of $9,100,000 23,000,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any the termination of the followingthis Agreement pursuant to:
(1i) Section 9.1(c) (other than pursuant to Section 9.1(c)(v) or Section 9.1(c)(vi));
(ii) Section 9.1(d)(ii); or
(iii) Section 9.1(b)(iii) or, if the Company Requisite Vote has not been obtained prior to termination of this Agreement, Section 9.1(b)(i), in either case, if, at or prior to the event that (A) time of such failure, there shall have been publicly announced an Acquisition Proposal shall have been made relating to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company Company, and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the after such termination of this Agreementthere shall have been consummated, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) a definitive agreement shall be paid promptlyhave been entered into providing for, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if (provided that, for purposes of this Section 9.2(b)(iii), all references to “15%” in the Company shall have failed to oppose such definition of “Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid ” shall be deemed to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect references to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c“50%”).
(c) . The Company acknowledges that the agreements contained in paragraph (bthis Section 9.2(b) above are an integral part of the transactions contemplated by this AgreementTransactions, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 9.2(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth in this Section 9.2(b) or any amounts due under paragraph (b) above within the time period specified thereinportion of such fee, the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed JX Xxxxxx Cxxxx & Co. in The Wall Street Journal effect on the date such payment was required to be mademade through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that the Termination Fee becomes payable and is paid by the Company and accepted by Parent pursuant to this Section 9.2(b), the Termination Fee shall be Parent’s and Merger Sub’s sole and exclusive remedy for monetary damages under this Agreement.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than this Section 8.5 and Sections 5.2(c), 6.13 and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2i) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
, or (3ii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(a) or (other than Section 8.04(d).
(ii8.4(a)(iv) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by unless the Company prior to shall have permitted the acquisition of shares pursuant thereto), or (iii) if within 6 months of the termination of this Agreement; Agreement by Parent pursuant to Section 8.2(a), 8.2(b) or 8.4(b) and provided further that with respect to clause (1) above, if on or before the Termination Fee shall be paid Date, prior to the time of the Company Stockholder Meeting or prior to the Company’s entering 's breach, as applicable, an Acquisition Proposal has been made to the Company or any person shall have announced an intention to make an Acquisition Proposal and such Acquisition Proposal or intention shall not have been withdrawn, any Acquisition Proposal by a third party is entered into, agreed to or consummated by the Company, then the Company shall pay Parent a termination fee of $11,000,000 in same-day funds, on the date of such termination, in the case of clauses (i) or (ii), or on the earlier of the date an agreement is entered into an Alternative Acquisition Agreement or consummating, approving or recommending with respect to an Acquisition Proposal or within two Business Days following notice from Parent if an Acquisition Proposal is consummated in the Company shall have failed to oppose such Acquisition Proposal.
case of clause (iii). Any amount paid pursuant to this Section 8.5(b) Notwithstanding shall be net of any Termination Fee amount previously paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject pursuant to Section 8.05(c8.5(c).
(c) In the event this Agreement is terminated pursuant to Section 8.4(b), then the Company shall reimburse Parent for its Expenses in same day funds, on the date of such termination, provided that in no event shall such reimbursement exceed $1,000,000. 50
(d) The Company acknowledges that the agreements contained in paragraph (bSection 8.5(b) above and 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, the Company, Parent and Merger Sub would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to Section 8.5(b) or 8.5(c), and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within commences a suit which results in a judgment against the time period specified thereinCompany for the fee set forth in this Section 8.5, the Company shall pay all to Parent its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the publicly announced prime rate of interest printed Chase Manhattan Bank in The Wall Street Journal on the date effect from time to time during such payment was required to be madeperiod plus two percent.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except to the extent provided in Section 9.1, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIin accordance with Section 8.1, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employees, agents, legal and financial advisors or other representativesthat (x), except (i) as provided in subject to Section 9.01 and (ii) that 8.2(e), no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful and material breach (as defined in Section 9.8) of this Agreement and (y) the provisions set forth in this Section 8.2 and Article IX shall survive the termination of this Agreement. The parties acknowledge and agree that nothing in this Section 8.2(a) shall be deemed to affect their right to specific performance under Section 9.5(b).
(b) In the event that this Agreement is terminated:
(i) The by (I) either the Company shall pay a termination feeor Parent pursuant to Section 8.1(b) (Outside Date) or Section 8.1(c) (Requisite Company Vote Not Obtained) or (II) Parent pursuant to Section 8.1(e) (Company Breach), representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the followingeach such case:
(1) in the event that (A) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders Subsidiaries or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal that has not been fully withdrawn without qualification prior to the earlier of (x) five days prior to the Company Shareholders Meeting or (y) termination of this Agreement; and
(B) within 12 months after such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to such Acquisition Proposal and such Acquisition Proposal is subsequently consummated; provided that, for purposes of this Section 8.2(b)(i), the references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(ii) by Parent pursuant to Section 8.1(g) (Company and Recommendation Matters); or
(Biii) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.1(h) (xSuperior Proposal); then, (1) in the case of Section 8.02(a8.2(b)(i), within two Business Days after consummation of such Acquisition Proposal, (2) for failure in the case of the Merger to be consummated by the date specified therein and such failure is the result Section 8.2(b)(ii), within two Business Days after termination of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) this Agreement and (C3) within twelve (12) months in the case of the Section 8.2(b)(iii), concurrently with or prior to termination of this Agreement, the Company consummates shall pay a termination fee of $16.6 million (the “Company Termination Fee”) to Parent by wire transfer of immediately available funds to an Acquisition Proposal;
(2) this Agreement is terminated account designated in writing by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company Each party acknowledges that the agreements contained in paragraph (b) above this Section 8.2 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, no party would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly timely pay Parent any amounts amount due under paragraph pursuant to Section 8.2(b) (b) above within any such amount due, a “Termination Payment”), and, in order to obtain such payment, Parent commences a suit that results in a judgment against the time period specified thereinCompany for the applicable Termination Payment, or any portion thereof, the Company shall pay all to Parent its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts thereon at the publicly announced prime rate of interest printed as published in The Wall Street Journal (or if not reported thereby, as reported in another authoritative source reasonably selected by Parent) in effect on the date such payment Termination Payment was required to be madepaid from such date through the date of full payment thereof.
(d) Each of the parties acknowledges that the Company Termination Fee is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which such Company Termination Fee is due and payable, for the efforts and resources expended and opportunities forgone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated by this Agreement, which amount would otherwise be impossible to calculate with precision. Each of the parties acknowledges and agrees that the Company Termination Fee, if paid to Parent, shall be treated as liquidated damages that are capital in nature to which Section 1234A of the Code applies.
(e) No more than one Company Termination Fee may be payable under this Article VIII. Parent (for itself and its affiliates) hereby agrees that, upon any termination of this Agreement under circumstances in which Parent is entitled to the Company Termination Fee under Section 8.2, Parent and its Affiliates are precluded from any other remedy (other than any costs and expenses that may become payable pursuant to Section 8.2(c)) against the Company, at law or in equity or otherwise, and neither Parent nor any of its Affiliates may seek (and Parent will cause its Affiliates not to seek) to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company, its Subsidiaries or Affiliates, or any of their respective Representatives, partners, managers, members, or shareholders in connection with this Agreement or the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Pcm, Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger is terminated pursuant to this Article VIIIVII, written notice thereof shall be given to the other party or parties, specifying the provisions hereof pursuant to which such termination is made and the basis therefor described in reasonable detail, and, except as set forth in this Agreement Section 7.05 and as set forth in Section 8.01, shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Representatives), except (i) as ; provided in Section 9.01 and (ii) that no such termination shall relieve (i) the Company from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 7.05(b) or (ii) Parent from any obligation to pay, if applicable, the Parent Termination Fee or the Parent Regulatory Termination Fee pursuant to Section 7.05(c); provided, further, that if (x) such termination resulted, directly or indirectly, from an Intentional Breach or (y) an Intentional Breach shall cause the Closing not to occur, then, notwithstanding such termination, such breaching party hereto shall be fully liable for any and all damages (including Derivative Damages), costs, expenses, liabilities or losses of any liability kind, in each case, incurred or damages resulting from suffered by the other party (collectively, “Damages”) as a result of such breach.
(b) If this Agreement is terminated (x) by Parent pursuant to Section 7.04(a) (Company Change in Recommendation), (y) by the Company or Parent pursuant to Section 7.02(b) (Company Stockholder Vote) at a time when Parent had the right to terminate pursuant to Section 7.04(a) (Company Change in Recommendation) or (z) by the Company pursuant to Section 7.03(c) (Termination for Superior Company Proposal), then the Company shall, within two business days after such termination in the case of clause (x) or in the case of clause (y) with respect to a termination by Parent, or concurrently with such termination in the case of clause (z) or in the case of clause (y) with respect to a termination by the Company, pay Parent a fee equal to $1,525,000,000 (the “Company Termination Fee”). In addition, if (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 7.02(a) (Termination Date) or 7.02(b) (Company Stockholder Vote) or (B) by Parent pursuant to Section 7.04(b) (Company Breach) in respect of any willful breach covenant of the Company, (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement.
(i) The , a bona fide Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been publicly made to the Company or any of its Subsidiaries or shall have been made directly to the Company’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Company Acquisition Proposal with respect or, in the case of termination by Parent pursuant to Section 7.04(b) (Company Breach), a Company Acquisition Proposal shall have been made publicly or privately to the Company Board of Directors of the Company, (iii) in the case of a termination pursuant to Section 7.02(a) (Termination Date), the conditions set forth in Sections 6.01(d) (Governmental Consents), 6.01(e) (Law; Order) and 6.02(c) (Government Approvals) shall have been satisfied, and (Biv) thereafter within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this sentence of Section 7.05(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal, then the Company shall pay the Company Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 7.05(b), the term “Company Acquisition Proposal” shall have the meaning assigned to such term in Section 5.02(d), except that the references to “20% or more” 89 shall be deemed to be references to “more than 50%” and references to “(using the consolidated total assets of the Retained Business as the denominator for purposes of calculating such percentage)” shall be deemed to be deleted. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(c) If this Agreement is terminated (x) by either the Company pursuant to Section 7.03(a) (Parent Change in Recommendation), (y) by Parent or the Company pursuant to Section 7.02(c) (Parent Stockholder Vote) at a time when the Company had the right to terminate pursuant to Section 7.03(a) (Parent Change in Recommendation) or (z) by Parent pursuant to Section 7.04(c) (Termination for Superior Parent Proposal), then Parent shall, within two business days after such termination in the case of clause (x) Section 8.02(aor in the case of clause (y) for failure of the Merger with respect to be consummated a termination by the date specified therein and Company, or concurrently with such failure termination in the case of clause (z) or clause (y) with respect to a termination by Parent, pay the Company a fee equal to $1,525,000,000 (the “Parent Termination Fee”). In addition, if (i) this Agreement is the result of the knowing action or inaction of terminated (A) by the Company or Parent pursuant to Section 7.02(a) (yTermination Date) or 7.02(c) (Parent Stockholder Vote) or (B) by the Company pursuant to Section 8.02(b)(ii7.03(b) and (CParent Breach) within twelve in respect of any covenant of Parent or a Merger Sub, (12ii) months prior to such termination referred to in clause (i) of this sentence, but after the termination date of this Agreement, a bona fide Parent Acquisition Proposal shall have been publicly made to Parent or any of its Subsidiaries or shall have been made directly to Parent’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make a bona fide Parent Acquisition Proposal or, in the case of termination by the Company pursuant to Section 7.03(b) (Parent Breach), a Parent Acquisition Proposal shall have been made publicly or privately to the Board of Directors of Parent, (iii) in the case of a termination pursuant to Section 7.02(a) (Termination Date), the conditions set forth in Sections 6.01(d) (Governmental Consents), 6.01(e) (Law; Order) and 6.02(c) (Government Approvals) shall have been satisfied, and (iv) within 12 months after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this sentence of Section 7.05(c), Parent consummates a Parent Acquisition Proposal or enters into an agreement contemplating a Parent Acquisition Proposal;
, then Parent shall pay the Parent Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 7.05(c), the term “Parent Acquisition Proposal” shall have the meaning assigned to such term in Section 5.03(d), except that (1) the references to “20% or more” shall be deemed to be references to “more than 50%” and (2) “Parent Acquisition Proposal” shall be read without giving effect to clause (i)(2) or (ii)(2) thereof. If this Agreement is terminated by the Company or Parent (i) pursuant to Section 8.03(a)7.02(d) (Law; or
Final and Non-Appealable Order) as the result of any applicable Antitrust Law, Communications Law or Foreign Regulatory Law or an Order imposed by a Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Laws, Communications Laws or Foreign Regulatory Laws (3each, a “Governmental Regulatory Entity”) this Agreement is terminated by Parent with respect to an Antitrust Law, Communications Law or Foreign Regulatory Law or (ii) pursuant to Section 8.04(b7.02(a) (Termination Date) and, at the time of such termination, one or more of the conditions set forth in Section 6.01(d) or Section 8.04(d6.01(e) (as the result of any applicable Antitrust Law, Communications Law or Foreign Regulatory Law or an Order imposed by a Governmental Regulatory Entity with respect to an Antitrust Law, Communications Law or Foreign Regulatory Law) or Section 6.02(c) was not satisfied and, in the case of each of (i) or (ii), at the time of such termination (A) all of the other conditions set forth in Section 6.01 and Section 6.02 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, provided that such conditions were then capable of being satisfied if the Closing had taken place) and (B) the Company is not in breach in any material respect of its obligations under this Agreement in any manner that shall have proximately contributed to the imposition of the Order referred to in clause (i) or the failure of the conditions referred to in clause (ii) above, as applicable, then Parent shall, within two business days after such termination, pay the Company a fee equal to $2,500,000,000 (the “Parent Regulatory Termination Fee”). In no event shall Parent be required to pay (I) the Parent Termination Fee on more than one occasion or (II) both the Parent Termination Fee and the Parent Regulatory Termination Fee. Notwithstanding anything to the contrary in this Section 7.05(c), if the Parent Termination Fee becomes payable at a time when Parent is in breach of its obligations pursuant to Section 5.06 such that the Company would have the right to terminate this Agreement pursuant to Section 7.03(b), Parent shall instead pay the Company the Parent Regulatory Termination Fee (or, if Parent has already paid the Parent Termination Fee, an amount equal to the Parent Regulatory Termination Fee minus the Parent Termination Fee).
(iid) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company Each party acknowledges that the agreements contained in paragraph (b) above this Section 7.05 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, no party would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to pay promptly the Company Termination Fee, if any, or if Parent fails to pay promptly the Parent Termination Fee or the Parent Regulatory Termination Fee, if any amounts due under paragraph (b) above within the time period specified thereinany such amount, a “Payment”), and, in order to obtain such Payment, the Company party entitled to receive such Payment (the “Recipient”) commences a suit which results in a judgment against the party obligated to make such Payment (the “Payor”) for the applicable Payment, or any portion thereof, the Payor shall pay all to the Recipient its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the Payment at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment Payment was required to be madepaid from such date through the date of full payment thereof.
Appears in 1 contract
Samples: Merger Agreement
Effect of Termination and Abandonment. (a) The Company shall pay Parent a fee of $9,000,000, which amount shall be payable by wire transfer of same day funds prior to any termination by the Company in the case of clause (i) or (iii) below (with any such payment being a condition precedent to any such termination), and within two business days after such amount becomes due in the case of any termination by Parent pursuant to clause (i) or (ii) below, upon the occurrence of any of the following events:
(i) The Company or Parent terminates this Agreement pursuant to clause (b) of Section 7.2 and prior to such termination, (x) a proposal with respect to the sale or other disposition of all or substantially all of the assets of the Company, or a transaction pursuant to which any third party would acquire beneficial ownership of more than 50% of the Company's outstanding shares of voting stock or any similar transaction involving a change of control of the Company (each a "Specified Transaction") shall have been made, and (y) within one year after such termination, (A) any third party shall acquire beneficial ownership of more than 50% of the Company's outstanding shares of voting stock, or (B) the Company shall enter into any agreement (including an agreement in principle, letter of intent or similar agreement), whether oral or written, with respect to any Specified Transaction;
(ii) Parent terminates this Agreement pursuant to clause (a) of Section 7.4; or
(iii) The Company terminates this Agreement pursuant to clause (a) of Section 7.3. The Company acknowledges that the agreements contained in this Section 7.5(a) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, Parent and Merger Sub would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 7.5(a), and, in order to obtain such payment, Parent or Merger Sub commences a suit which results in a judgment against the Company for the full amount of the fee set forth in this Section 7.5(a), the Company shall pay to Parent its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Bank of America N.T. and S.A. in effect on the date such fee was required to be paid.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, all obligations of the parties hereto shall terminate, except the obligations of the parties set forth in this Section 7.5 and Section 5.10 (Expenses) and except for the Confidentiality Agreement and the letter, dated August 6, 1999, from Parent and accepted and agreed to by the Company amending the Confidentiality Agreement. Moreover, in the event of termination of this Agreement shall become void and of no effect with no liability pursuant to Section 7.3 (b), 7.3(c), 7.4(b) or further obligation of any kind on 7.4(c), to the part of any extent such termination results from the willful breach by a party hereto (or of any of its directorsrepresentations, officerswarranties, employeescovenants or agreements set forth in this Agreement, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination nothing herein shall relieve any prejudice the ability of the nonbreaching party hereto of any liability or from seeking damages resulting from any willful other party for any breach of this Agreement, including, without limitation, attorneys' fees and the right to pursue any remedy at law or in equity.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Guidant Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.01, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability Buyer, the Company, any of their respective Subsidiaries or further obligation any of any kind on the part of any party hereto (officers or directors of any of its directorsthem shall have any liability of any nature whatsoever hereunder, officersor in connection with the transactions contemplated hereby, employees, agents, legal and financial advisors or other representativesexcept that Section 6.03 (Press Releases), except Section 6.13 (iConfidentiality Agreement), Section 9.05 (Expenses) as provided in and this Section 9.01 8.02 and (ii) that no such all other obligations of the parties specifically intended to be performed after the termination of this Agreement shall relieve survive any party hereto termination of this Agreement; provided, however, that, notwithstanding anything to the contrary herein, neither Buyer nor the Company shall be relieved or released from any liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful breach provision of this Agreement.
(ib) The In the event this Agreement is terminated by Buyer pursuant to Section 8.01(f) and within 12 months of such termination, the Company shall have (x) recommended to its shareholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, the Company shall pay a termination fee, representing liquidated damages, of to Buyer an amount equal to $9,100,000 1,600,000 (the “Termination Fee”). In the event this Agreement is terminated by Buyer pursuant to Section 8.01(f) and neither of the other conditions of the preceding sentence are satisfied, the Company shall pay to Parent Buyer an amount equal to $800,000 and all references herein to “Termination Fee” shall mean such amount.
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Section 8.01(e) or Section 8.01(b) due to the failure to obtain the approval of the Company’s shareholders required for the consummation of the Merger, and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to the Company Meeting or prior to the date specified in Section 8.01(b), as applicable, and (ii) within 12 months of such termination, the Company shall have (x) recommended to its shareholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.02(c), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%.”
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.01(c) and (i) an Acquisition Proposal with respect to the Company shall have been publicly announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Buyer or during the cure period therefor provided in Section 8.01(c) and (ii) within 12 months of such termination, the Company shall have (x) recommended to its shareholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.02(d), all references in the definition of Acquisition Transaction to “15%” shall instead refer to “50%.” Notwithstanding the foregoing, for purposes of this Section 8.02(d) only, the Termination Fee shall not be payable to Buyer if the Acquisition Transaction referred to in the immediately preceding sentence shall be for an aggregate consideration (whether payable to Company shareholders, the Company or the Company Bank) equal to or less than $20 million (whether payable in cash, stock or other consideration).
(e) Any payment of the Termination Fee required to be made pursuant to this Section 8.02 shall be made within two (2) Business Days after the date of the event giving rise to the obligation to make such payment. All payments under this Section 8.02 shall be made by wire transfer of immediately available funds to an account specified designated by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d)Buyer.
(iif) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by Buyer and the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges acknowledge that the agreements contained in paragraph (b) above this Section 8.02 are an integral part of the transactions contemplated by this AgreementAgreement and that, and that without such agreements Parent these agreements, Buyer would not have entered into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If if the Company fails promptly to promptly pay Parent any amounts amount due under paragraph (b) above within pursuant to this Section 8.02 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the time period specified thereinCompany for the amount set forth in this Section 8.02, the Company shall pay all to Buyer its costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the Termination Fee at the publicly announced prime rate of interest printed (as reported in The Wall Street Journal or, if not reported therein, in another authoritative source) on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than this Section 8.5 and Sections 5.3(c), 5.3(d), 6.9 and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its subsidiaries or any of its stockholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its subsidiaries and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(b) (x) Section 8.02(a) for failure other than as a result of a vote against the Merger to be consummated Agreement by the date specified therein and such failure is the result of the knowing action or inaction of the Company Parent), or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
, or (3iii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(a), or (iv) if within 12 months of the termination of this Agreement pursuant to Section 8.2(a), 8.2(b) (other than as a result of a vote against the Merger Agreement by Parent), or 8.4(b) any Acquisition Proposal by a third party is entered into, agreed to or consummated by the Company, then the Company shall pay Parent a termination fee of $12.5 million, plus Expenses not to exceed $2,000,000, in same-day funds, on the date of such termination, in the case of clauses (i), (ii) or Section 8.04(d(iii), or on the earlier of the date an agreement is entered into with respect to an Acquisition Proposal or an Acquisition Proposal is consummated in the case of clause (iv), subject to subparagraph (c) below.
(iic) Any Termination Fee required As a condition to the Company's obligation to pay to Parent the fee and Expenses under subparagraph (b) (the "FEE PAYMENT CONDITION"), Parent shall have either (x) surrendered to the Company in a form reasonably satisfactory to the Company the stock option as defined in the Stock Option Agreement (to the extent unexercised)(the "STOCK OPTION") or (y) if the Stock Option shall have been exercised, Parent shall return to the Company all Company Common Stock issued on exercise of the Stock Option (the "OPTION SHARES") and shall receive from the Company the exercise price paid by this Section 8.05(bParent for the Option Shares in same day funds on the date of such return.
(d) Parent shall be paid promptly, but in no event later than two Business Days after have 10 days from the earlier to occur of the date of termination; provided that with respect , entering into of the agreement or consummation of the Acquisition Proposal (in each case referred to clause in subparagraph (2b) above) to satisfy the Fee Payment Condition by written notice delivered to the Company no later than such tenth day. Pending such action on the part of Parent, the Termination Company shall pay any such fees and Expenses to Weil, Gotshal & Manges LLP as escrow agent (the "ESCROW AGENT"). If the Fee shall be paid by Payment Xxxxxtion is satisfied within the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above10 day period, the Termination Escrow Agent shall pay all such fees (together with any interest earned thereon) to Parent; if the Fee Payment Condition is not satisfied within such 10 day period, the Escrow Agent shall be paid prior return such fees (together with any interest earned thereon) to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(ce) The Company acknowledges that the agreements contained in paragraph Sections 8.5(b) and (bc) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, the Company, Parent and Merger Sub would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay Parent any amounts due under paragraph pursuant to Sections 8.5(b) and (b) above within c), and, in order to obtain such payment, Parent commences a suit which results in a judgment against the time period specified thereinCompany for the amounts set forth in this Section 8.5, the Company shall pay all to Parent its reasonable costs and expenses (including reasonable attorneys’ ' fees) incurred by Parent in connection with such suit, together with interest from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest became due and payable on the amount of any such unpaid amounts owed at the publicly announced prime rate of interest printed The Chase Manhattan Bank in The Wall Street Journal on the date effect from time to time during such payment was required to be madeperiod plus five percent.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(ii)or (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3ii) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d8.4(i).
(ii) Any Termination Fee required by this Section 8.05(b) , then the Company shall be paid promptly, but in no event later than two Business Days days after the date of such termination; provided that with respect to clause (2) above, the Termination Fee pay Parent a termination fee of $1,600,000 and shall be paid promptly, but in no event later than two days after being notified of such by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be pay all of the sole remedy for charges and expenses, including those of the Exchange Agent, incurred by Parent or Merger Sub in connection with respect this Agreement and the transactions contemplated by this Agreement up to any breach a maximum amount of any covenant or agreement giving rise to such payment$400,000, subject to Section 8.05(c).
(c) in each case payable by wire transfer of same day funds. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under or Merger Sub commences a suit which results in a judgment against the Company for the fee set forth in this paragraph (b) above within the time period specified therein), the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed The Chase Manhattan Bank, N.A. in The Wall Street Journal effect on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (CSC Holdings Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIISection 8, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xi) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
8.3(a) or (3ii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(a) or (iii) by either party pursuant to Section 8.04(d8.2(ii).
(ii) Any Termination Fee required by this Section 8.05(b) , then the Company shall be paid promptly, but in no event later than two Business Days business days after the date of termination; provided that with respect to clause (2) abovesuch termination or, if applicable, the Termination Fee shall be paid event set forth in the proviso below, pay Parent a termination fee of $1.2 million by the Company prior to termination wire transfer of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) same day funds. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under or Merger Sub commences a suit which results in a judgment against the Company for the fee set forth in this paragraph (b) above within the time period specified therein), the Company shall pay all to Parent or Merger Sub its reasonable costs and expenses (including reasonable attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime lending rate of interest printed Citibank, N.A. in The Wall Street Journal effect on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Baltek Corp)
Effect of Termination and Abandonment. (a) In the event of termination of that this Agreement is terminated and the abandonment of the Merger is abandoned pursuant to this Article VIIIVII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its Affiliates or its or their respective directors, officers, employeesemployees or stockholders; provided, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto (A) the Company of any liability to pay the Company Termination Fee, or damages resulting from Parent of any willful breach liability to pay the Parent Termination Fee, in each case to the extent required pursuant to this Section 7.5 or (B) subject to Section 7.5(d), the Company of, or, subject to Section 7.5(f), Parent or Merger Sub of, any liability for any Willful Breach of this Agreement prior to such termination, and (ii) the provisions listed in the second sentence of Section 8.1 shall survive the termination of this Agreement. The party desiring to terminate this Agreement pursuant to Section 7.2, 7.3 or 7.4 shall give written notice of such termination, including a description in reasonable detail of the reasons for such termination, to the other parties in accordance with Section 8.6, specifying the provision or provisions hereof pursuant to which such termination is effected.
(b) In the event that:
(i) The Company (x) this Agreement is terminated pursuant to Section 7.2(a), Section 7.2(b) or Section 7.4(b) (and with respect to Section 7.2(a) and Section 7.4(b), the Stockholder Approval has not been obtained), (y) any Person shall pay have publicly proposed, announced or made an Acquisition Proposal or, in the case of a termination feepursuant to Section 7.4(b), representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made provided to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent Company’s management or the Company Board (or any committee thereof), in either case after the date of this Agreement and prior to the Stockholders Meeting (and such Acquisition Proposal shall not have been withdrawn at least two (2) Business Days prior to such Stockholders Meeting), and, in the case of a termination pursuant to (x) Section 8.02(a) 7.4(b), prior to the breach that forms the basis for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) termination, and (Cz) within twelve (12) months of the such termination of this Agreement, the Company consummates shall have consummated an Acquisition Proposal;
Proposal or entered into a definitive agreement for an Acquisition Proposal that is subsequently consummated (2) this Agreement is terminated by whether consummated within such twelve (12)-month period or thereafter), then the Company pursuant shall, on the date such Acquisition Proposal is consummated, pay an amount equal to Section 8.03(a$37,675,000 (the “Company Termination Fee”), to Parent (or its designee) by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of clauses (y) and (z) above the references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”; or
(3ii) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d7.4(a).
(ii) Any , the Company shall pay the Company Termination Fee required by this Section 8.05(bto Parent (or its designee) shall be paid promptly, but in no event later than within two (2) Business Days after the date of termination; provided that with respect such termination by wire transfer of same day funds to clause (2) above, the Termination Fee shall be paid one or more accounts designated by Parent. Without limiting any claim by Parent or Merger Sub for Willful Breach of this Agreement by the Company prior to termination of this Agreement; in accordance with and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c7.5(d).
(c) The Company acknowledges that , for the agreements contained avoidance of doubt, in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If no event shall the Company fails be required to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest Termination Fee on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be mademore than one occasion.
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind (other than the liabilities arising under the provisions, including this Section 8.5, set forth in Section 9.1) on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated (i) by the Company pursuant to Section 8.2(iii) or Section 8.3(a) or (ii) by Parent pursuant to Section 8.2(ii) or Section 8.4(a) or (iii) by either Parent or the Company pursuant to Section 8.2(i) (xand at the time of such termination pursuant to Section 8.2(i) Section 8.02(a) for failure of the Merger any Person shall then be making or proposing an Acquisition Proposal to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) any of its Subsidiaries or any of its stockholders), then the Company shall, not later than immediately prior to the time of such termination or not later than immediately prior to the time of entering into an agreement concerning a transaction that constitutes an Acquisition Proposal, pay Parent a termination fee of $81.5 million plus an amount equal to Parent's charges and (C) within twelve (12) months expenses incurred in connection with the transactions contemplated by this Agreement since January 27, 1998, up to a maximum of $5,000,000, in each case by wire transfer of same day funds. In order to facilitate the timely making of the termination foregoing payment, in the event that Parent elects to terminate this Agreement, Parent shall notify the Company thereof not later than 10:00 a.m. (New York City time) on the business day immediately preceding the date of such termination. In the event that Parent fails to provide such advance notice of its election to terminate this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event obligated to make the foregoing payment not later than two Business Days after 12:00 p.m. (New York City time) on the business day immediately following the date of such termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) . The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Subsidiary would not have entered into this Agreement initially, or entered into the amendment and restatement of this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under or Merger Subsidiary commences a suit which results in a judgment against the Company for the fee set forth in this paragraph (b) above within the time period specified therein), the -57- 64 Company shall pay all to Parent or Merger Subsidiary its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amounts owed at the prime rate of The Chase Manhattan Bank, in effect from time to time during such period plus two percent.
(c) In the event this Agreement is terminated (i) by the Company or Parent pursuant to Section 8.2(i) and at the time of such termination no Person is then making or proposing an Acquisition Proposal to the Company or any of its Subsidiaries or any of its stockholders, then the Company shall promptly, but in no event later than two business days after Parent shall have requested payment of its charges and expenses incurred in connection with the transactions contemplated hereby ("Expenses"), pay to Parent the amount of any such unpaid amounts Expenses up to a maximum of $5,000,000 and, if within 18 months of such termination, the Company enters into an agreement concerning a transaction that constitutes an Acquisition Proposal, the Company at the publicly announced prime rate time of interest printed entering into such agreement, shall pay to Parent the termination fee of $81.5 million, in The Wall Street Journal on the date such payment was required to be madeeach case payable by wire transfer of same day funds.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Bankers Insurance Group Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.5 and the second sentence of Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of from any liability or for damages to any other party resulting from any prior willful or intentional breach of this AgreementAgreement or from any obligation to pay, if applicable, the fees and reimbursement of expenses in accordance with Section 6.11 or Section 8.5(b).
(b) If (i) The this Agreement is terminated (A) by the Company shall pay a termination feepursuant to Section 8.3(b), representing liquidated damages, of $9,100,000 (the “Termination Fee”B) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in pursuant to Section 8.4(a), (C) by Parent pursuant to Section 8.4(c), (D) by Parent or the event of any of Company pursuant to Section 8.2(a) (if a vote to obtain the following:
Company Requisite Vote at the Shareholders Meeting has not been taken prior to such termination), or (1E) by Parent or the Company pursuant to Section 8.2(b), and (ii) in the event that case of any termination referred to in clauses (Ai)(C), (i)(D) an or (i)(E) of this sentence, prior to any such termination, but after the date of this Agreement a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders Subsidiaries or have been made directly to the Company’s shareholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant such Acquisition Proposal shall not have been withdrawn prior to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein of such termination and such failure is if on or within 12 months after the result date of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the a termination of this Agreement, the Company consummates an Acquisition Proposal or enters into a definitive agreement with respect to an Acquisition Proposal;
, then (2x) this Agreement is terminated by in the case of clauses (i)(C), (i)(D), and (i)(E), the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days days after the date of termination; provided that the consummation of such Acquisition Proposal or the execution of a definitive agreement with respect to clause such Acquisition Proposal, and (2y) abovein the case of clauses (i)(A) and (i)(B), the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed prior to oppose or simultaneous with such termination, pay Parent a fee equal to Twelve Million Dollars ($12,000,000) (the “Termination Fee”), payable by wire transfer of same day funds. For the purposes of this Section 8.5(b), the term “Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee ” shall upon payment thereof be have the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise meaning assigned to such paymentterm in Section 6.2(b), subject except that the reference to Section 8.05(c).
(c) 20% therein shall be deemed to be a reference to “more than 50%”. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, that, without these agreements, Parent and that without such agreements Parent Merger Sub would not have entered enter into this Agreement, and that such any amounts do payable pursuant to this Section 8.5(b) is not constitute a penalty. If In the Company fails event that Parent or Merger Sub commences a suit to promptly pay Parent obtain payment of any amounts amount due under paragraph (b) above within the time period specified thereinpursuant to this Section 8.5(b), the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from of the date such amounts were required to be paid prevailing party in connection with any action, including such suit shall be paid to the filing of any lawsuit, taken to collect payment of such amountsprevailing party by the other party, together with interest on the any amount of any such unpaid amounts the Termination Fee that is not paid when due for the period of non-payment at a rate per annum equal to 3% over the publicly announced prime rate of interest printed SunTrust Bank, Atlanta, Georgia, in The Wall Street Journal effect on the date such payment was required to be madeshould have been made if Parent is the prevailing party.
Appears in 1 contract
Samples: Merger Agreement (Talx Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of any liability or damages resulting from any willful deliberate breach of this Agreement occurring prior to such termination. The parties further agree that if the Company is or becomes obligated to pay a termination fee pursuant to Section 8.5(b), the right of Parent to receive such termination fee shall be the sole remedy for damages of Parent with respect to the facts and circumstances giving rise to such payment obligation except for any deliberate breach of this Agreement. No party may assert a claim for damages for any inaccuracy of any representation or warranty contained in this Agreement (whether by direct claim or counterclaim) except in connection with the termination of this Agreement.
(b) In the event that (i) The this Agreement is terminated by Parent pursuant to Section 8.4(a), or (ii) this Agreement is terminated by the Company shall pursuant to Section 8.3(b), then the Company shall, promptly, but in no event later than one business day after the date of such termination, pay Parent a termination fee, representing liquidated damages, fee of one hundred and forty million dollars ($9,100,000 140,000,000) (the “"Termination Fee”") and shall promptly, but in no event later than one business day after being notified of the amount of all documented out-of-pocket charges and expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum of five million dollars ($5,000,000) ("Out-of-Pocket Expenses"), pay to Parent an amount equal to the Out-of-Pocket Expenses, in each case payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in same day funds. In the event that (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.2(b) or (ii) this Agreement is terminated by Parent pursuant to Section 8.4(b), then (A) the Company shall promptly, but in no event later than one business day after being notified of the Out-of-Pocket Expenses by Parent, pay to Parent an amount equal to the Out-of-Pocket Expenses, payable by wire transfer of same day funds and (B) if, in the case of clause (i), a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders become public or any Person shall have publicly announced an intention (whether or not conditional) to make a proposal or offer relating to an Acquisition Proposal with respect prior to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure date of the Merger to be consummated by Shareholders Meeting or if, in the date specified therein and such failure is the result case of the knowing action or inaction of the Company or clause (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreementii), the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(b) as a result of a deliberate breach by the Company and a bona fide Acquisition Proposal shall have been made to the Company or Section 8.04(d).
become public or any Person shall have announced to the Company or publicly announced an intention (whether or not conditional) to make a proposal or offer relating to an Acquisition Proposal prior to the date of termination, and in the case of each of clause (i) and clause (ii), within fifteen (15) Any Termination Fee required months from the date of termination, the Company executes and delivers a definitive agreement with respect to any Acquisition Proposal or an Acquisition Proposal is consummated (it being understood that in the event the board of directors of the Company recommends the acceptance by this Section 8.05(b) the shareholders of the Company of a third-party tender offer or exchange offer for at least a majority of the outstanding Shares, such recommendation shall be paid treated as though an agreement with respect to an Acquisition Proposal had been executed), the Company shall promptly, but in no event later than two Business Days one business day after the date of termination; provided that with respect to clause (2) abovesuch execution and delivery, or consummation, as the case may be, pay Parent the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) Fee. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under or Merger Sub commences a suit which results in a judgment against the Company for the fee set forth in this paragraph (b) above within the time period specified therein), the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that this Agreement is terminated by Parent or the Company pursuant to Section 8.2(i), Section 8.2(ii) or Section 8.3 and, prior to the date of such termination, any Person (Aother than Parent) an Acquisition Proposal shall have been has made to the Company or any of its stockholders Subsidiaries a bona fide Acquisition Proposal or any Person shall have publicly announced an intention (whether or not conditional) to make a proposal or offer relating to an Acquisition Proposal, then the Company shall pay Parent, no later than two days after the earlier to occur of (i) the date of entrance by the Company or any of its Subsidiaries into an agreement concerning a transaction that constitutes an Acquisition Proposal or (ii) the date any Person (other than Parent) purchases 50% or more of the assets or any voting securities of the Company and its Subsidiaries (provided that the entering of any definitive agreement referred to in clauses (i) and (ii) of this sentence is entered into by the Company or any of its Subsidiaries, or if there is no such agreement with respect to a purchase contemplated by clause (ii), any tender, exchange or other offer or arrangement for the Company and (B) thereafter Company's voting securities is first publicly disclosed, within 18 months of such termination of this Agreement), a termination fee of $500 million. In the event that this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of 8.2(iii), then Parent shall pay the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this AgreementCompany, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days days after the date this Agreement has been terminated, a termination fee of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal$500 million.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (American International Group Inc)
Effect of Termination and Abandonment. (a) In the event of termination of If this Agreement is terminated and the abandonment of the Merger abandoned pursuant to this Article VIIIVII, this Agreement (other than as set forth in Section 8.1) shall become void and of no further effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal shareholders, legal, accounting and financial advisors or other representatives); provided, however, that, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The In the event that the Company shall pay a termination fee, representing liquidated damages, terminates this Agreement pursuant to Section 7.3(a) or Parent or Merger Sub terminates this Agreement pursuant to Sections 7.4(a) or 7.4(b) on account of $9,100,000 any material breach by Company of Section 5.2 of this Agreement (the “Termination Fee”) to Parent payable by wire transfer date of immediately available funds to an account specified by Parent termination in the event of any each of the followingforegoing events shall be referred to in this Section 7.5 as the "Option Trigger Date"), Parent shall have an irrevocable option (the "Option") (which Option must be exercised within fifteen months (the "Option Period") after the Option Trigger Date) to:
(1i) acquire all of the Company's right, title, and interest in the event that and to MTBE Technology (Aas defined below) an Acquisition Proposal shall have been made for a purchase price (payable in cash upon exercise of such Option) equal to the Company or any current fair market value of its stockholders or any Person shall have publicly announced an intention the MTBE Technology (whether or not conditional) to make an Acquisition Proposal with respect to which the Company and (B) thereafter this Agreement Parent agree is terminated $1,500,000), provided that such purchase price shall be reduced by either Parent or $300,000 if the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure Option is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) exercised within twelve (12) six months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a)Option Trigger Date; or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).and
(ii) enter into a supply and services agreement with Company on Company's standard terms which provides that Parent shall have the right to purchase reactors from the Company at a purchase price such that the Company attains a 15% gross margin on the sale of such reactors, and that employees of the Company will assist Parent in marketing and developing applications of the MTBE Technology at the Company's standard fees. . "Gross margin" purposes of this subsection is applied to and calculated based on the sum of direct labor, fringe, and direct costs only. Parent shall have the right to audit such charges within one year after completion of the project involved. Any Termination Fee required by this Section 8.05(b) over- or under-billing shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part party entitled thereto promptly after completion of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together audit with interest on the amount of any such unpaid amounts at the publicly announced Citibank, N.A.'s prime rate of interest printed interest. The Option and the Company's obligations in The Wall Street Journal on connection therewith shall be collectively referred to as the date such payment was required to be made"Break-up Arrangements".
Appears in 1 contract
Samples: Merger Agreement (Envirogen Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and by either Buyer or the abandonment of the Merger pursuant to this Article VIIICompany as provided in Section 8.1, this Agreement shall forthwith become void and have no effect, and none of no effect with no liability Buyer, the Company, any of their respective Subsidiaries or further obligation any of any kind on the part of any party hereto (officers or directors of any of its directorsthem shall have any liability of any nature whatsoever hereunder, officersor in connection with the transactions contemplated hereby, employees, agents, legal and financial advisors or other representativesexcept that Sections 6.3 (Press Releases), except 6.13 (iConfidentiality Agreement) as provided in and 9.5 (Expenses) and this Section 9.01 8.2 and (ii) that no such all other obligations of the parties specifically intended to be performed after the termination of this Agreement shall relieve survive any party hereto termination of this Agreement; provided, however, that, notwithstanding anything to the contrary herein, none of Buyer or the Company shall be relieved or released from any liabilities or damages arising out of its willful breach of any liability or damages resulting from any willful breach provision of this Agreement.
(ib) The In the event this Agreement is terminated by Buyer pursuant to Section 8.1(f), the Company shall pay a termination fee, representing liquidated damages, of to Buyer an amount equal to $9,100,000 2,212,500 (the “Termination Fee”).
(c) In the event that this Agreement is terminated by Buyer or the Company pursuant to Parent payable Section 8.1(b) or Section 8.1(e) due to the failure to obtain the approval of the Company’s stockholders at the Company Meeting, and (i) an Acquisition Proposal with respect to the Company shall have been announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to the Company Meeting or prior to the date specified in Section 8.1(b), as applicable, and (ii) within 12 months of such termination, the Company shall have (x) recommended to its stockholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(c), all references in the definition of Acquisition Transaction to “25%” shall instead refer to “50%.”
(d) In the event that this Agreement is terminated by Buyer pursuant to Section 8.1(c) and (i) an Acquisition Proposal with respect to the Company shall have been announced, disclosed or otherwise communicated to the Company Board or senior management of the Company prior to any breach by the Company of any representation, warranty, covenant or other agreement giving rise to such termination by Buyer or during the cure period therefor provided in Section 8.1(c) and (ii) within 12 months of such termination, the Company shall have (x) recommended to its stockholders or consummated a transaction qualifying as an Acquisition Transaction or (y) entered into a definitive agreement with respect to an Acquisition Transaction, then the Company shall pay to Buyer an amount equal to the Termination Fee. For purposes of this Section 8.2(d), all references in the definition of Acquisition Transaction to “25%” shall instead refer to “50%.”
(e) Any payment of the Termination Fee required to be made pursuant to this Section 8.2 shall be made not more than two Business Days after the date of the event giving rise to the obligation to make such payment. All payments under this Section 8.2 shall be made by wire transfer of immediately available funds to an account specified designated by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d)Buyer.
(iif) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by Buyer and the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges acknowledge that the agreements contained in paragraph (b) above this Section 8.2 are an integral part of the transactions contemplated by this AgreementAgreement and that, and that without such agreements Parent these agreements, Buyer would not have entered into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If if the Company fails promptly to promptly pay Parent any amounts amount due under paragraph (b) above within pursuant to this Section 8.2 and, in order to obtain such payment, Buyer commences a suit which results in a judgment against the time period specified thereinCompany for the amount set forth in this Section 8.2, the Company shall pay all to Buyer its costs and expenses (including reasonable attorneys’ feesfees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the Termination Fee at the publicly announced prime rate of interest printed (as reported in The Wall Street Journal or, if not reported therein, in another authoritative source) on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful material breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(1i) in the event that (A) an a bona fide Acquisition Proposal shall have been made to the Company or any of its Subsidiaries or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries prior to the date of termination of this Agreement and (B) thereafter such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification prior to the date of termination and this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b),
(xii) this Agreement is terminated (A) by Parent pursuant to (1) Section 8.02(a8.4(d) for failure as a result of the Merger to be consummated an intentional breach of covenant by the Company, or (2) Section 8.4(b), or (B) by the Company pursuant to Section 8.2(b) and, on or prior to the date specified therein and such failure is the of termination, any event giving rise to Parent’s right to terminate under either (1) Section 8.4(d) as a result of an intentional breach of covenant by the knowing action or inaction of the Company Company, or (y2) Section 8.02(b)(ii8.4(b) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;shall have occurred,
(2iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); , or
(3iv) this Agreement is terminated by Parent pursuant to Section 8.04(bclause (a) or (c) of Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) 8.4, then the Company shall be paid promptly, but in no event later than two Business Days days after the date of such termination; provided , pay Parent a termination fee of $77,000,000 of transaction value (the “Termination Fee”) (provided, however, that with respect the Termination Fee to be paid pursuant to clause (2iii) aboveshall be paid as set forth in Section 8.3(a) and shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the documented out-of-pocket expenses incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $5,000,000, in each case payable by wire transfer of same day funds; provided, however, that no Termination Fee shall be paid by the Company prior payable to termination of this Agreement; and provided further that with respect Parent pursuant to clause (1i) aboveor (ii) of this paragraph (b) unless and until within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternate Acquisition Agreement with respect to, the Termination Fee or shall be paid prior have consummated or shall have approved or recommended to the Company’s entering stockholders, an Acquisition Proposal (substituting “50%” for “15%” in the definition thereof), provided that for purposes of this Agreement, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” by any Person if, within 12 months of such termination, the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement (other than a confidentiality agreement) with respect to, or consummatingshall have consummated or shall have approved or recommended to the Company’s stockholders, approving or recommending an Acquisition Proposal made by or within two Business Days following notice from Parent if the Company shall have failed to oppose on behalf of such Acquisition Proposal.
(iii) Notwithstanding Person or any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)its Affiliates.
(c) In the event that this Agreement is terminated by Parent or the Company pursuant to (i) Section 8.2(a) and as of the date of termination the condition set forth in Section 7.1(b)(i) has not been satisfied (or the condition set forth in Section 7.1(c) has not been satisfied as the result of an Order issued to enforce any antitrust or competition law of the United States of America) and all other conditions to closing have been, or are readily capable of being, satisfied or (ii) Section 8.2(c) as a result of an Order issued to enforce antitrust or competition Law of the United States of America, then Parent shall promptly, but in no event later than two days after the date of such termination, pay the Company a termination fee equal to $112,800,000 of transaction value.
(d) The Company acknowledges and Parent acknowledge that the agreements contained in paragraph (b) above this Section 8.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, they would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to Section 8.5(b) or Parent any amounts fails to promptly pay the amount due under paragraph (b) above within the time period specified thereinpursuant to Section 8.5(c), and, in order to obtain such payment, the Company other party commences a suit that results in a judgment for the fee set forth in this Section 8.5 or any portion of such fee, the party that failed to make a required payment shall pay all to the other party its costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be mademade through the date of payment. Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge that in the event that a termination fee becomes payable and is paid pursuant to Section 8.5(b) or 8.5(c) the termination fee shall be the receiving party’s sole and exclusive remedy under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Hydril Co)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE 7, this Agreement (other than this Section 7.02 and Sections 8.01, 8.07 and 8.08 hereof) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of from any liability or damages resulting from for any willful breach of this AgreementAgreement prior to termination. If this Agreement is terminated as provided herein, each party shall use its reasonable best efforts to redeliver (or in lieu thereof, to destroy, upon written certification of such destruction to the other party) all documents, work papers and other material (including any copies thereof) of any other party relating to the transactions contemplated hereby, whether obtained before or after the execution hereof, to the party furnishing the same.
(ib) The In the event this Agreement is terminated: (x) by the Company pursuant to Section 7.01(f) hereof; (y) by Buyer pursuant to Sections 7.01(c)(i) or 7.01(d) hereof; or (z) by Buyer or the Company pursuant to Section 7.01(b)(ii), then the Company shall promptly, but in no event later than ten business days after the date of such termination, pay Buyer a termination fee, representing liquidated damages, of fee equal to $9,100,000 1,500,000 (the “Termination Fee”) to Parent ), payable by wire transfer of immediately available funds same day funds; provided, however, that no Termination Fee shall be payable to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter Buyer if this Agreement is terminated by either Parent Buyer pursuant to Section 7.01(c)(i) or by Buyer or the Company pursuant to (xSection 7.01(b)(ii) hereof unless and until, within 12 months of such termination, the Company consummates a Company Acquisition Agreement with a Person other than Buyer. The Company acknowledges that the agreements contained in this Section 8.02(a7.02(b) for failure are an integral part of the Merger transactions contemplated by this Agreement and that, without these agreements, Buyer would not enter into this Agreement. In the event of a termination by Buyer pursuant to be consummated Section 7.01(c)(ii) hereof or by the date specified therein and such failure is the result of the knowing action Buyer or inaction of the Company or (y) pursuant to Section 8.02(b)(ii) 7.01(b)(ii), the Company shall pay in ten business days upon Buyer’s request all reasonable out-of-pocket charges and (C) within twelve (12) months of expenses incurred by Buyer in connection with this Agreement and the transactions contemplated hereby in an amount not to exceed $500,000. In the event the Company incurs a Termination Fee obligation from the termination of this AgreementAgreement pursuant to Sections 7.01(c)(i) or 7.01(b)(ii), such obligation shall be reduced by the Company consummates an Acquisition Proposal;amount of Buyer’s out-of-pocket charges and expenses reimbursed by the Company. Notwithstanding the foregoing, no Termination Fee or expense reimbursement shall be paid pursuant to this Section 7.02(b) if Buyer shall be in material breach of its obligations hereunder.
(2c) In the event that this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(37.01(e) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) hereof, then Buyer shall be paid promptly, but promptly shall promptly pay in no event later than two Business Days after ten business days at the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid Company’s request all reasonable out-of-pocket charges and expenses incurred by the Company prior in connection with this Agreement and the transactions contemplated hereby in an amount not to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company exceed $500,000. Buyer acknowledges that the agreements contained in paragraph (bthis Section 7.02(c) above are an integral part of the transactions contemplated by this AgreementAgreement and that, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified thereinthese agreements, the Company would not enter into the Agreement. Notwithstanding the foregoing, no expense reimbursement shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid pursuant to this Section 7.02(c) if the Company shall be in connection with any action, including the filing material breach of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madeits obligations hereunder.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of If this Agreement is terminated and the abandonment of the Merger abandoned pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no further effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal stockholders, legal, accounting and financial advisors or other representatives); provided, however, that, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement; provided further, that the Company shall reimburse Parent in the amount of $2,000,000 as reimbursement for all of its costs and expenses in connection with this Agreement, the Offer and the Merger unless: (i) the Agreement has been terminated by the parties pursuant to Section 8.1 or by either party pursuant to Section 8.2; (ii) the Company has terminated this Agreement pursuant to Sections 8.3(a) or 8.3(c); or (iii) the Parent has terminated this Agreement pursuant to Section 8.4(a) or Section 8.4(d) and, further, the Company has not breached in any material respect its obligations under this Agreement in any manner which proximately contributed to the failure to close the Merger or Parent's termination of the Offer, respectively.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event In lieu of any of liability or obligation to pay damages (other than the following:
(1) in the event that obligation to reimburse Parent for expenses pursuant to Section 8.5(a)), if (A) an there shall be a proposal by a Third Party for a Third Party Acquisition Proposal shall have been made to existing at the Company or any time of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to termination of the Company Agreement by Parent and Merger Sub, and (B) thereafter Parent and Merger Sub shall have terminated this Agreement is terminated by either Parent pursuant to Section 8.4(b) or (c) or (d) and, with respect to a termination pursuant to Section 8.4(d), the Company pursuant has breached in any material respect its obligations under this Agreement in any manner which proximately contributed to (x) Section 8.02(a) for failure Parent and Merger Sub's termination of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of Offer, the Company or shall pay to Parent (yi) Section 8.02(b)(iiwithin two (2) 27 33 business days after such termination $5,000,000 and (Cii) within twelve (12) months an additional $8,000,000 upon consummation, if any, of any Third Party Acquisition with a Person who had proposed a Third Party Acquisition prior to the time of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d)and Merger Sub.
(ii) Any Termination Fee required by this In lieu of any liability or obligation to pay damages (other than the obligation to reimburse Parent for expenses pursuant to Section 8.05(b8.5(a)), (A) if there shall be paid promptlynot have been a material breach of any representation, but in no event later than two Business Days after warranty, covenant or agreement on the date part of termination; provided that with respect to clause Parent or Merger Sub and (2B) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject terminated this Agreement pursuant to Section 8.05(c8.3(b), the Company shall pay to Parent (i) concurrently with such termination $5,000,000 and (ii) an additional $8,000,000 upon consummation, if any, of either the Superior Proposal giving right to terminate this Agreement under Section 8.3 (b) or any Third Party Acquisition with a Person who had proposed a Third party Acquisition prior to the termination of this Agreement under section 8.3(b). (Such amounts payable pursuant to Section 8.5(b)(i) or this Section 8.5(b)(ii) are referred to in the aggregate in this Agreement as the "Termination Fee".)
(c) The Company acknowledges that the agreements contained in paragraph (b) above Section 8.5 are an integral part of the transactions contemplated by this AgreementAgreement and that, without these agreements, Parent and that without such agreements Parent Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails promptly to promptly pay the amounts required pursuant to Section 8.5 and, in order to obtain such payment Parent any amounts due under paragraph (b) above within or Merger Sub commences a suit which results in a final nonappealable judgment against the time period specified thereinCompany for such amounts, the Company shall pay all to Parent or Merger Sub (i) its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any actionsuch suit and (ii) if (and only if) this Agreement has been terminated pursuant to Section 8.3(b) or 8.4(c), including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly rate announced prime rate by Bank of interest printed America, NT & SA as its "reference rate" in The Wall Street Journal effect on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Intel Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability (other than as set forth in Section 8.5(b) or further obligation (c), or in the proviso at the end of any kind this sentence) on the part of any party hereto (to this Agreement or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) that however, no such termination shall relieve any party hereto of to this Agreement from any liability or for damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the following:
that: (1) in the event that (Ai) an Acquisition Proposal shall have been made to the Company Arch or any of its have been made directly to Arch' stockholders or noteholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter: (A) Arch' stockholders do not adopt this Agreement or the other transactions contemplated hereby at the Arch Stockholders Meeting or Arch' noteholders do not satisfy the Arch Minimum Condition with respect to the Company and Arch Notes; (B) thereafter this Agreement is terminated by either Parent Arch or the Company PageNet pursuant to (x) Section 8.02(a) for failure the terms of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) this Agreement and (C) Arch enters into an agreement with a third party with respect to an Acquisition Proposal within twelve (12) 12 months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
; (2ii) this Agreement is terminated by the Company PageNet pursuant to Section 8.03(a8.3(a) or (b) provided that, with respect to Section 8.3(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to Arch' obligation in accordance with such Section to duly convene and complete the Arch Stockholders Meeting regarding the adoption of this Agreement and the matters set forth in Section 6.5(b) of this Agreement); or
or (3iii) this Agreement is terminated by Parent Arch pursuant to Section 8.04(b8.4(f), then Arch and its Subsidiaries (jointly and severally) shall pay PageNet a fee equal to $40.0 million (the "PageNet Termination Fee"), which amount shall be in addition to any expenses to be paid pursuant to Section 6.12, payable by wire transfer of same day funds. A PageNet Termination Fee payable pursuant to Section 8.5(b)(i), or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days days after the date of termination; provided that with respect to clause (2) above, the termination and a PageNet Termination Fee payable pursuant to Section 8.5(b)(iii) shall be paid by the Company prior to termination of this Agreement; simultaneously with (and provided further that with respect to clause (1) above, the Termination Fee such payment shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iiia condition of) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject termination pursuant to Section 8.05(c8.4(f).
(c) The Company . Arch acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, PageNet would not have entered enter into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If the Company if Arch fails to pay promptly pay Parent any amounts the amount due under pursuant to this Section 8.5(b), and, in order to obtain such payment, PageNet commences a suit which results in a judgment against Arch for the fee set forth in this paragraph (b) above within the time period specified therein), the Company Arch shall pay all to PageNet its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be made.
(c) In the event that: (i) an Acquisition Proposal shall have been made to PageNet or have been made directly to PageNet's stockholders or noteholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and thereafter: (A) PageNet's stockholders do not adopt this Agreement or the other transactions contemplated hereby at the PageNet Stockholders Meeting or PageNet's noteholders do not satisfy the PageNet Minimum Condition with respect to the PageNet Notes, and the Bankruptcy Court fails to enter the Final Confirmation Order which would otherwise enable the transactions set forth in this Agreement to occur without approval by the holders of PageNet Shares; (B) this Agreement is terminated by either Arch or PageNet pursuant to the terms of this Agreement and (C) either (x) PageNet executes and delivers an agreement with respect to an Acquisition Proposal or (y) an Acquisition Proposal with respect to PageNet is consummated, in either case, within 12 months of the date this Agreement is terminated; (ii) this Agreement is terminated by Arch pursuant to Section 8.4(a) or (b) provided that, with respect to Section 8.4(b), it is terminated solely with respect to a breach of (A) Section 6.2 or (B) Section 6.5 (but, only with respect to PageNet's obligation in accordance with such Section to duly convene and complete the PageNet Stockholders Meeting (unless the Bankruptcy Case has commenced or PageNet has stipulated to bankruptcy relief after the occurrence of an Involuntary Insolvency Event pursuant to Section 6.19(a)(iv) hereof) regarding the adoption of this Agreement and the approval of the matters set forth in Section 6.5(a) of this Agreement); (iii) the Prepackaged Plan is withdrawn without the prior written consent of Arch, or PageNet files any other plan of reorganization or amends, modifies or adds to any material provision of the Prepackaged Plan in each case without the prior written consent of Arch; (iv) any other plan of reorganization filed by a person other than PageNet is confirmed by the Bankruptcy Court; (v) PageNet files a motion to sell or otherwise transfer all or a substantial portion of its assets as part of a sale pursuant to Section 363 of the Bankruptcy Code without the prior written consent of Arch; or (vi) this Agreement is terminated by PageNet pursuant to Section 8.3(c) or (d), then PageNet and its Subsidiaries (jointly and severally) shall pay Arch a fee equal to $40.0 million (the "Arch Termination Fee"), which amount shall be in addition to any expenses to be paid pursuant to Section 6.12, payable by wire transfer of same day funds. A Arch Termination Fee payable pursuant to Section 8.5(c)(i), (ii), (iii), (iv) or (v) shall be paid no later than two days after the date of termination and a Arch Termination Fee payable pursuant to Section 8.5(c)(vi) shall be paid simultaneously with (and such payment shall be a condition of) termination pursuant to Section 8.3(c) or (d). PageNet acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, Arch and Merger Sub would not enter into this Agreement. Accordingly, if PageNet fails to pay promptly the amount due pursuant to this Section 8.5(c) (and in any case in which the Bankruptcy Case has been commenced, the Initial Merger Order approves this provision), and, in order to obtain such payment, Arch commences a suit which results in a judgment against PageNet for the fee set forth in this paragraph (c), PageNet shall pay to Arch its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except as provided in Section 8.5(b), in the event of termination of this Agreement and the abandonment of the Merger transactions contemplated by this Agreement pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employees, agents, legal and financial advisors or other representativesnotwithstanding anything in the foregoing to the contrary but subject to Section 8.5(d), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or for damages to the other party hereto resulting from any willful breach of this Agreement or fraud and (ii) the provisions set forth in this Section 8.5 and Section 9.1 shall survive the termination of this Agreement. In no event shall any party be liable for punitive damages.
(b) In the event that:
(i) The Company shall pay a termination fee(x) this Agreement is terminated pursuant to Section 8.2(a), representing liquidated damagesSection 8.2(c) (and, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event case of any Section 8.2(c), at the time of the following:
expiration of the Offer referenced in Section 8.2(c), the sole unsatisfied Tender Offer Condition (1other than those conditions that by their nature are to be satisfied at the Acceptance Time and the condition with respect to the delivery of certificates referenced in clause (6) in the event that (of Exhibit A) an Acquisition Proposal shall have been made to is the Company Minimum Condition) or any of its stockholders or Section 8.4(b), (y) any Person shall have publicly announced an intention (whether or not conditional) to make an made a bona fide Acquisition Proposal with respect after the date of this Agreement but prior to the Company such termination, and such Acquisition Proposal shall not have been publicly withdrawn prior to such termination and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (Cz) within twelve (12) months of such termination the termination Company shall have entered into an Alternative Acquisition Agreement with respect to any Acquisition Proposal and such Acquisition Proposal is consummated at any time (provided that for purposes of this Agreement, clause (z) the Company consummates an references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “75%”);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of valid termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIIX, written notice thereof shall be given to the other parties, specifying the provision or provisions hereof pursuant to which such termination shall have been made, and this Agreement (other than this Section 9.05, Section 7.06 (Public Announcements), Section 7.09 (Fees and Expenses), Section 10.02 (Entire Agreement; Assignment), Section 10.03 (Notices), Section 10.04 (Governing Law; Jurisdiction), Section 10.05 (No Third Party Beneficiaries) and Section 10.08 (Confidentiality)) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors Subsidiaries or other representativestheir respective Representatives), except (i) as provided . Nothing in this Section 9.01 and (ii) that no such termination 9.05 shall relieve any party hereto of from liability for any liability knowing and intentional breach prior to such termination of, or damages resulting from any willful breach of fraud committed prior to the termination in connection with, this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 9.04(a) or Section 9.04(b), (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a9.03(b); or
, or (3iii) if (A) an Acquisition Proposal shall have been made, proposed or communicated (and not withdrawn) after the date hereof and prior to the Company Shareholders Meeting (or prior to the termination of this Agreement if there has been no Company Shareholders Meeting), (B) neither Parent nor Merger Sub shall be in any material breach of any of its representations, warranties or covenants under this Agreement, (C) following the occurrence of an event described in the preceding clause (A), this Agreement is terminated by the Company or Parent pursuant to Section 8.04(b9.02(a) or Section 8.04(d9.02(b).
, and (iiD) Any Termination Fee required by this Section 8.05(bat any time prior to the date that is twelve (12) shall be paid promptly, but in no event later than two Business Days months after the date of such termination, (x) the Company enters into a definitive agreement in connection with an Acquisition Proposal, or (y) an Acquisition Proposal is consummated (whether or not the Acquisition Proposal was the same Acquisition Proposal referred to in clause (A)); provided provided, that with respect for purposes of this Section 9.05(b)(iii), all references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”, then the Company shall pay or cause to be paid to Parent or its designee a termination fee of US$2,500,000 (the “Company Termination Fee”), (1) prior to such termination in the case of a termination referred to in clause (i) or (ii), or (2) aboveon the date the first of such events described in clauses (x) and (y) above shall have occurred in the case of clause (iii), in each case, by wire transfer of same day funds to one or more accounts designated in writing by Parent. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion. In the event that Parent or its designee shall receive full payment of the Company Termination Fee pursuant to this Section 9.05(b), the receipt of such Company Termination Fee shall be paid deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company prior to termination Parent, Merger Sub or any other Person arising out of or in connection with this Agreement; and provided further that with respect to clause (1) above, the Termination Fee Transactions, any Financing Document or any of the transactions contemplated thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and none of Parent, Merger Sub or any other Person shall be paid prior entitled to bring or maintain any Proceeding against any Company Related Party arising out of or in connection with this Agreement, the Company’s entering into an Alternative Acquisition Agreement Transactions, any Financing Document or consummatingany of the transactions contemplated thereby (and the abandonment or termination hereof or thereof) or any matters forming the basis for such termination; provided, approving or recommending an Acquisition Proposal or within two Business Days following notice from however, that nothing in this Section 9.05(b) shall limit the rights of Parent if and Merger Sub under Section 10.07. For the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach avoidance of any covenant or agreement giving rise to such paymentdoubt, subject to Section 8.05(c)10.07, the right of Parent and its designees to receive payment from the Company of the Company Termination Fee referred to in this Section 9.05(b) shall be the sole and exclusive remedy of the Parent Related Parties against the Company Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, the Transactions, any Financing Document or any of the transactions contemplated thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and upon payment of such amounts, none of the Company Related Parties shall have any further liability or obligation arising out of or in connection with this Agreement, the Transactions, any Financing Document or any of the transactions contemplated thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination. The provisions of this Section 9.05(b) are intended to be for the benefit of, and shall be enforceable by, each Company Related Party.
(c) The Company acknowledges In the event that the agreements contained Company terminates this Agreement pursuant to Section 9.03(a) or Section 9.03(c), then, Parent shall pay or cause to be paid to the Company a termination fee in paragraph an amount equal to US$5,000,000 (bthe “Parent Termination Fee”) above are an integral part promptly and in any event within two (2) Business Days following such termination by wire transfer of same day funds to one or more accounts designated in writing by the Company. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. In the event that the Company or its designee shall receive the Parent Termination Fee pursuant to this Section 9.05(c), the receipt of such Parent Termination Fee shall be deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company or any other Person arising out of or in connection with this Agreement, the Transactions, any Financing Document or any of the transactions contemplated by thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination, and neither the Company nor any other Person shall be entitled to bring or maintain any Proceeding against any Parent Related Party arising out of or in connection with this Agreement, the Transactions, any Financing Document or any of the transactions contemplated thereby (and the abandonment or termination hereof or thereof) or any matters forming the basis for such termination, provided, however, that without such agreements nothing in this Section 9.05(c) shall limit the rights of the Company under Section 10.07. For the avoidance of doubt, subject to Section 10.07, the right of the Company and its designees to receive payment from Parent would not have entered into of the Termination Fee referred to in this Section 9.05(c) shall be the sole and exclusive remedy of the Company Related Parties against the Parent Related Parties for any loss or damage suffered or incurred arising out of or in connection with this Agreement, the Transactions, any Financing Document or any of the transactions contemplated thereby (and that the abandonment or termination hereof or thereof) or any matter forming the basis for such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified thereintermination, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect upon payment of such amounts, none of the Parent Related Parties shall have any further liability or obligation arising out of or in connection with this Agreement, the Transactions, any Financing Document or any of the transactions contemplated thereby (and the abandonment or termination hereof or thereof) or any matter forming the basis for such termination. The provisions of this Section 9.05(c) are intended to be for the benefit of, and shall be enforceable by, each Parent Related Party. 55
(d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent Termination Fee, when due and in accordance with the requirements of this Agreement, the Company or Parent, as the case may be, shall reimburse the other party for all costs and expenses actually incurred or accrued by the other party (including, without limitation, fees and expenses of counsel) in connection with the collection under and enforcement of this Section 9.05, together with interest on the amount of any such unpaid amounts Company Termination Fee or Parent Termination Fee, as the case may be, commencing on the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full, at a rate per annum equal to 5% plus the publicly announced prime rate of interest printed published in The Wall Street Journal in effect on the date such payment was required to be made. Such collection expenses shall not otherwise diminish in any way the payment obligations hereunder.
(e) Each party acknowledges that (i) the agreements contained in this Section 9.05 are an integral part of the Transactions, (ii) the damages resulting from termination of this Agreement under circumstances where a Company Termination Fee or Parent Termination Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 9.05(b) or Section 9.05(c) are not a penalty but rather constitute liquidated damages in a reasonable amount that will compensate Parent or the Company, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without the agreements contained in this Section 9.05, the parties would not have entered into this Agreement.
Appears in 1 contract
Samples: Merger Agreement (China Nepstar Chain Drugstore Ltd.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article ARTICLE VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind person on the part of any party hereto (or of any of its directorsRepresentatives or affiliates); provided, officersthat the provisions set forth in this Section 8.5, employees, agents, legal and financial advisors or other representativesSection 6.9 (Public Announcements), except Section 6.13(b) (iwith respect to Parent’s reimbursement and indemnification obligations), Section 8.6 (Expenses), Section 9.1 (Non-Survival of Representations, Warranties, Covenants and Agreements), Section 9.2 (Notices), Section 9.5 (Entire Agreement; Assignment), Section 9.6 (Parties in Interest), Section 9.7 (Governing Law), Section 9.11 (Jurisdiction), Section 9.13 (Waiver of Jury Trial), the Confidentiality Agreements and the Guarantees (to the extent set forth therein) as provided in Section 9.01 and (ii) that no such shall survive the termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this AgreementAgreement and abandonment of the Merger pursuant to this ARTICLE VIII.
(b) In the event that:
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(a) or Section 8.2(b), (xB) Section 8.02(a) for failure of the Merger to be consummated by an Acquisition Proposal, whether or not conditional, shall have been made public and not withdrawn after the date specified therein and such failure is hereof but prior to the result termination of this Agreement pursuant to Section 8.2(a) or, with respect to termination pursuant to Section 8.2(b), prior to the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) Stockholders Meeting, and (C) within after the date of this Agreement and prior to the date that is twelve (12) months of following the termination of this Agreement, the Company consummates an Acquisition ProposalProposal (whether or not such Acquisition Proposal was the same Acquisition Proposal referred to in the preceding clause (B)) (provided that for purposes of this Section 8.5(b)(i), the references to “15%” in the definition of Acquisition Proposal shall be deemed to be references to “50%”);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) or Section 8.4(b); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Mergers pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.5 and in Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesrespective Representatives), except (i) as ; provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of (1) from any liability or for damages to any other party resulting from fraud or any willful prior breach by such party in any material respect of its covenants or agreements set forth in this Agreement that shall have proximately contributed to the failure of the Mergers to be consummated, and the aggrieved party shall be entitled to all rights and remedies available at law or in equity or (2) from any obligation to pay, if applicable, the Company Termination Fee pursuant to Section 8.5(b) or the Parent Reimbursement Amount pursuant to Section 8.5(c).
(b) If this Agreement is terminated (i) by Parent pursuant to Section 8.4(a) (Change in Recommendation) or (ii) by the Company pursuant to either (x) Section 8.2(b) (Stockholder Vote) at a time when Parent had the right to terminate pursuant to Section 8.4(a) (Change in Recommendation) or (y) Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two business days after such termination in the case of clause (i) or concurrently with such termination in the case of clause (ii), pay Parent a fee equal to $1,725,000,000 (the “Company Termination Fee”). In addition, if (i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.2(a) (Termination Date) or 8.2(b) (Stockholder Vote) or (B) by Parent pursuant to Section 8.4(b) (Company Breach), (ii) prior to such termination referred to in clause (i) of this sentence, but after the date of this Agreement.
(i) The Company shall pay , a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an bona fide Acquisition Proposal shall have been publicly made to the Company or any of its Subsidiaries or shall have been made directly to the Company’s stockholders generally or any Person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with respect to the Company (a “Company Acquisition Proposal”) or, in the case of termination by Parent pursuant to Section 8.4(b) (Company Breach), a Company Acquisition Proposal shall have been made publicly or privately to the Company, (iii) in the case of a termination pursuant to Section 8.2(a) (Termination Date), the conditions set forth in Sections 7.1(c) (Governmental Consents), 7.1(d) (Law; Order) and 7.2(c) (Government Approvals) shall have been satisfied, and (Biv) thereafter this Agreement is terminated by within 12 months after the date of a termination in either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger cases referred to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or in clauses (y) Section 8.02(b)(iii)(A) and (Ci)(B) within twelve (12) months of the termination of this Agreementsentence of Section 8.5(b), the Company consummates a Company Acquisition Proposal or enters into an agreement contemplating a Company Acquisition Proposal;, then the Company shall pay the Company Termination Fee concurrently with the earlier of such entry or consummation; provided that solely for purposes of the second sentence of this Section 8.5(b), the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 6.2(d), except that the references to “15% or more” shall be deemed to be references to “50% or more”. In no event shall the Company be required to pay the Company Termination Fee on more than one occasion.
(2c) If this Agreement is terminated by the Company or Parent (i) pursuant to Section 8.03(a)8.2(c) (Law; or
Final and Non- Appealable Order) as the result of any applicable Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or an Order imposed by a Governmental Entity with jurisdiction over enforcement of any applicable Antitrust Laws, Communications Laws, Utilities Laws or Foreign Regulatory Laws (3each, a “Governmental Regulatory Entity”) this Agreement is terminated by Parent with respect to an Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or (ii) pursuant to Section 8.04(b8.2(a) (Termination Date) and, at the time of such termination, one or more of the conditions set forth in Section 7.1(c) or Section 8.04(d7.1(d) (as the result of any applicable Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law or an Order imposed by a Governmental Regulatory Entity with respect to an Antitrust Law, Communications Law, Utilities Law or Foreign Regulatory Law) or Section 7.2(c) was not satisfied and, in the case of each of (i) or (ii).
, at the time of such termination (A) all of the other conditions set forth in Section 7.1 and Section 7.2 have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, provided that such conditions were then capable of being satisfied if the Closing had taken place) and (B) the Company is not in breach in any material respect of its obligations under this Agreement in any manner that shall have proximately contributed to the imposition of the Order referred to in clause (i) or the failure of the conditions referred to in clause (ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptlyabove, but as applicable, then Parent shall, within two business days after such termination, pay the Company in respect of its time and expenses an amount equal to $500,000,000 (the “Parent Reimbursement Amount”). In no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall Parent be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including pay the filing of any lawsuit, taken to collect payment of such amounts, together with interest Parent Reimbursement Amount on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be mademore than one occasion.
Appears in 1 contract
Samples: Merger Agreement
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIARTICLE X, this Agreement (other than as set forth in this Section 10.5 and Section 11.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representativesRepresentatives); provided, however, that, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach fraud or Willful Breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent Theta or the Company Kappa pursuant to (xSection 10.2(c), then, Kappa shall reimburse Theta for all of its reasonable Expenses, up to a maximum amount of $20,000,000. The fees provided for in this Section 10.5(b) Section 8.02(a) for failure shall be paid by wire transfer of the Merger same day funds to be consummated an account designated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) Theta within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
two (2) Business Days after such termination.
(c) In the event that this Agreement is terminated by the Company Theta or Kappa pursuant to Section 8.03(a10.2(b); or, then, Theta shall reimburse Kappa for all of their reasonable Expenses, up to a maximum amount of $20,000,000. The fees provided for in this Section 10.5(c) shall be paid by wire transfer of same day funds to an account designated by Kappa within two (2) Business Days after such termination.
(3d) In the event that this Agreement is terminated by Parent Theta pursuant to Section 8.04(b10.3, then, Kappa shall pay Theta a fee equal to $37,000,000, by wire transfer of same day funds to an account designated by Theta, within two (2) or Section 8.04(d)Business Days after such termination.
(iie) Any Termination Fee required In the event that this Agreement is terminated by this Kappa pursuant to Section 8.05(b10.4, then, Theta shall pay Kappa a fee equal to $37,000,000, by wire transfer of same day funds to an account designated by Kappa, within two (2) shall be paid promptly, but in no event later than two Business Days after the date of such termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iiif) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach Each of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company Theta and Kappa acknowledges that the agreements contained in paragraph (b) above this Section 10.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, the other party would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If the Company if either party fails to promptly pay Parent any amounts or cause to be paid the amount due under paragraph (b) above within the time period specified thereinpursuant to this Section 10.5, and, in order to obtain such payment, the Company other party commences a suit that results in a judgment against such party for the payment set forth in this Section 10.5 or any portion of such payment, such party shall pay all the other party its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the payment at the publicly announced prime rate of interest printed Citibank, N.A., in The Wall Street Journal effect on the date such payment was required to be madepaid, from the date on which such payment was required through the date of actual payment.
(g) In the event that legal action is taken by any party (including any of the Parties) against Kappa, the Kappa Board, Theta or the Theta Board in relation to the legality of the decision by the Kappa Board or the Theta Board to enter into or perform the agreements between Kappa and Theta set forth in Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as the case may be, and, despite the party subject to the legal action having vigorously defended against such legal action, it is concluded by a final non-appealable judgment or decision of a court of competent jurisdiction that the decision by the Kappa Board or the Theta Board, as applicable, to enter into the agreements under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable, is unlawful or unenforceable, then the Party that would be entitled to the termination payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable (referred to as the "Recipient" for the purposes of this Section 10.5(g) and Section 10.5(h)), shall promptly remit to the Party that would be obligated to pay the termination payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e), as applicable, the portion of such termination payment (to the extent already paid) that such court has determined to be unlawful or unenforceable, net of any reasonable costs and expenses of the Recipient.
(h) At the Recipient's option, the Recipient shall be entitled to assume and control the defense of any legal action referred to in Section 10.5(g) subject to the Recipient assuming all the costs relating to such defense. In the event that the Recipient assumes such defense, the other Party shall fully cooperate with the Recipient's defense of such legal action, including by providing to the Recipient all such information regarding the other Party and its Board of Directors, and making available to Recipient such employees, officers and directors of such other Party, as the Recipient shall reasonably request.
(i) Notwithstanding, anything to the contrary in this Agreement, any payments made pursuant to Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e) shall constitute liquidated damages, and from and after the termination giving rise to such payment, neither Party shall have any further liability of any kind for any reason in connection with this Agreement or the termination contemplated hereby other than as provided under this Section 10.5. In no event shall any Party be entitled to payment under Section 10.5(b), Section 10.5(c), Section 10.5(d), or Section 10.5(e) on more than one occasion.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, this Agreement (other than this Section 7.5 and Sections 5.8(c), 5.19 and Article 8) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, except (i) as however, neither such termination nor the existence of any rights provided for in Section 9.01 and (ii7.5(b) that no such termination or Section 7.5(c) shall relieve any party hereto of any liability or eliminate or reduce any damages resulting from (i) any willful breach of any representations or warranties contained in this Agreement or fraud or (ii) any breach of any covenant or agreement contained in this Agreement; and provided, further, that in the event Parent elects to receive the Company Termination Fee (as defined below) or the Company elects to receive the payments contemplated by Section 7.5(c)(i) or (ii), as the case may be, the receipt of such payments and amounts shall be in full satisfaction of any amount or obligations owed to the recipient by the other party or parties hereto, and shall be such recipient's sole remedy hereunder (except for cases of fraud).
(i) The In the event that this Agreement is terminated by the Company pursuant to Section 7.3(a) or by Parent pursuant to Section 7.4(a), then the Company shall pay Parent a termination fee, representing liquidated damages, fee of $9,100,000 30 million in same-day funds (the “"Company Termination Fee”) to Parent payable by wire transfer "), on the date of immediately available funds to an account specified by Parent in the event of any of the following:such termination.
(1ii) in In the event that (A) an prior to or at the Company Stockholders Meeting a Company Acquisition Proposal shall have been made to the Company or any of its stockholders subsidiaries or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company of its stockholders, and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 7.2(b), then the Company shall reimburse Parent for its documented expenses incurred in connection with the transactions contemplated hereby, up to a maximum reimbursement of $1.0 million (xthe "Parent Expenses"), promptly upon presentment of statements documenting such expenses.
(iii) In the event that this Agreement is terminated by Parent pursuant to Section 8.02(a7.4(b) for failure as a result of the Merger a willful breach and, within 12 months of any such termination, any Company Acquisition Proposal (whether received prior to be or after such termination) is entered into, agreed to or consummated by the date specified therein and such failure is Company, then the result Company shall pay to Parent the Company Termination Fee, on the earlier of the knowing action date an agreement is entered into with respect to a Company Acquisition Proposal or inaction of the a Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;Proposal is consummated.
(2c) (i) In the event that this Agreement is terminated by the Company pursuant to Section 8.03(a7.3(b); or
(3) this Agreement is terminated by , then Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by pay the Company prior to termination a fee of this Agreement; and provided further that with respect to clause $30 million in same-day funds (1) abovethe "Parent Termination Fee"), on the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment day of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madetermination.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In Except to the extent provided in Sections 8.02(b), 8.02(c), 8.02(d) and 8.02(e), in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIIIin accordance with Section 8.01, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto Party (or of any of its directors, officers, employees, agents, legal Representatives or Affiliates); provided that (x) subject to Sections 8.02(c) and financial advisors or other representatives8.02(e), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto Party of any liability or damages to the other Party resulting from any willful breach fraud or Willful and Material Breach of its obligations set forth in this Agreement and (y) the provisions set forth in this Section 8.02 and the second and third sentences of Section 9.01 shall survive the termination of this Agreement. In addition to the foregoing, no termination of this Agreement will affect the rights or obligations of any Party pursuant to the Guarantee, which rights, obligations and agreements set forth in the Guarantee will survive the termination of this Agreement in accordance with their respective terms.
(b) In the event that this Agreement is terminated:
(i) The by Parent pursuant to Section 8.01(f) (Change of Recommendation); then, within two (2) Business Days after termination of this Agreement the Company shall pay or cause to be paid a termination fee, representing liquidated damages, fee of $9,100,000 24,000,000 (the “Company Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified designated in writing by Parent in the event of any of the following:Parent.
(1c) in the event that (A) an Acquisition Proposal shall have been made Subject to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this AgreementSection 8.02(e), the Company consummates an Acquisition Proposal;
(2) if this Agreement is terminated by the Company pursuant to Section 8.01(e) or Section 8.03(a8.01(g); or
, or by Parent pursuant to Section 8.01(b) if at such time the Company could have validly terminated this Agreement pursuant to Section 8.01(e) or Section 8.01(g), then within two (32) Business Days after termination of this Agreement, Parent shall pay or cause to be paid a termination fee of $50,000,000 (the “Parent Termination Fee”) to the Company by wire transfer of immediately available funds to an account designated in writing by the Company. In the event this Agreement is terminated by Parent the Company pursuant to Section 8.04(b) Section 8.01(h), Parent shall pay to the Company, by wire transfer of immediately available funds, an amount equal to that required to reimburse the Company and its Subsidiaries for all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby at or Section 8.04(d)prior to the time of such termination, up to $10,000,000 in the aggregate.
(iid) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company Each Party acknowledges that the agreements contained in paragraph (b) above this Section 8.02 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements Parent these agreements, no Party would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company or Parent fails to promptly timely pay Parent or Company any amounts amount due under paragraph pursuant to Section 8.02(b) or Section 8.02(c), as applicable (b) above within the time period specified thereinany such amount due, a “Termination Payment”), and, to obtain such payment, the Company Party owed a Termination Payment commences a suit that results in a judgment against the Party owing the applicable Termination Payment, the owing Party shall pay all to the owed Party its reasonable, documented and out-of-pocket costs and expenses (including attorneys’ feesfees of outside counsel) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts thereon at the publicly announced prime rate of interest printed as published in The Wall Street Journal (or if not reported therein, as reported in another authoritative source reasonably selected by the owed Party) in effect on the date such payment Termination Payment was required to be madepaid from such date through the date of full payment thereof (any such amounts of costs, expenses and interest, the “Enforcement Costs”); provided, that in no event shall any Party be required to pay Enforcement Costs in an aggregate amount exceeding $2,000,000.
Appears in 1 contract
Samples: Merger Agreement (Convey Health Solutions Holdings, Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any willful or intentional material breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(1i) in after the event that (A) an date of this Agreement, a bona fide Acquisition Proposal shall have been made to the Company Company, any of its Subsidiaries or any of its stockholders stockholders, or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn prior to (x) with respect to any termination pursuant to Section 8.2(b), the date of the Stockholders Meeting at which the vote on the Merger is held, (y) with respect to any termination pursuant to Section 8.2(a), the Termination Date and (z) with respect to any termination pursuant to clause (B) below, such breach by the Company) and thereafter this Agreement is terminated (A) by either Parent or the Company pursuant to Section 8.2(a) or 8.2(b) or (xB) by Parent pursuant to Section 8.02(a8.4(b) for failure as a result of the Merger to be consummated a willful and material breach by the date specified therein and such failure is the result Company of the knowing action or inaction any of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination its agreements set forth in Sections 6.1, 6.2, 6.3, 6.4, 6.5, 6.14(b), 6.15 and/or 6.16 of this Agreement, the Company consummates an Acquisition Proposal;
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) or is terminable by Parent pursuant to Section 8.4(a) when otherwise terminated; or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
then the Company shall promptly (3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days five (5) days after the date of such termination; provided ) pay Parent the Termination Fee (provided, however, that with respect the Termination Fee to be paid pursuant to clause (2iii) aboveof this Section 8.5(b) shall be paid as set forth in Section 6.2(f) payable by wire transfer of same day funds; provided, further, that no Termination Fee shall be payable to Parent pursuant to clause (i) of this paragraph (b) unless and until within twelve (12) months of such termination the Company or any of its Subsidiaries shall have consummated an Acquisition Proposal (substituting “25%” for “15%” in the definition thereof)). Notwithstanding anything to the contrary in this Agreement, the parties hereby acknowledge and agree that in the event that the Termination Fee becomes payable and is paid by the Company pursuant to this Section 8.5(b), the Termination Fee shall be paid by Parent’s and Merger Sub’s sole and exclusive remedy against the Company prior to termination and any of this Agreement; its Subsidiaries and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding and any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent of its Subsidiaries’ Representatives with respect to any breach and all breaches of any representation, warranty, covenant or agreement giving rise of this Agreement or otherwise relating to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part or arising out of this Agreement or the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Vertrue Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employees, agents, legal and financial advisors or other representatives), except that (i) as provided subject to the limitations set forth in Section 9.01 8.5(b) and (ii) that c), no such termination shall relieve any party hereto of any liability or for damages to the other party hereto resulting from any willful and material breach of this Agreement or fraud and (ii) the provisions set forth in this Section 8.5, Section 6.10, the indemnification and reimbursement obligations of Parent pursuant to Section 6.14(b), Sections 9.2 through 9.14, the Confidentiality Agreements, the Equity Financing Commitment Letter (to the extent set forth therein) and the Termination Equity Commitment Letter (to the extent set forth therein) shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(1i) in the event that (Ax) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated (1) before obtaining the Company Stockholder Approvals, by either Parent or the Company pursuant to Section 8.2(a) (xthe section relating to the Termination Date) Section 8.02(aor (2) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action either Parent or inaction of the Company pursuant to Section 8.2(b) (the section relating to failure to receive the Company Stockholder Approvals) or (3) by Parent pursuant to Section 8.4(b) (the section relating to breach of representations and covenants), (y) any Person shall have made an Acquisition Proposal after the date of this Agreement but prior to such termination (and such Acquisition Proposal, if public, shall not have been publicly withdrawn prior to such termination or, with respect to a termination pursuant to Section 8.02(b)(ii8.2(b), prior to the Stockholders Meeting) and (Cz) within twelve (12) 12 months of such termination the termination Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or consummated any Acquisition Proposal (provided that for purposes of this Agreement, clause (z) the Company consummates an references to “20%” in subsections (B)(1) and (B)(2) of the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) (the section relating to a Company Adverse Recommendation Change); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a) (the section relating to termination to enter into an Alternative Acquisition Agreement that constitutes a Superior Proposal); or
then the Company shall (3A) this Agreement is terminated by Parent pursuant in the case of clause (i) above, concurrently with the date of the applicable event referred to Section 8.04(bin sub-clause (i)(z),, (B) or Section 8.04(d).
in the case of clause (ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptlyabove, but in no event later than two Business Days after the date of termination; provided that with respect to such termination and (C) in the case of clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.above,
Appears in 1 contract
Samples: Merger Agreement (Rue21, Inc.)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger Consolidation pursuant to this Article VIII, no party to this Agreement shall become void and of no effect with no have any liability or further obligation of to any kind on the part of any other party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), hereunder except (i) as provided set forth in this Section 8.02 and Section 9.01 and (ii) that no such termination shall will not relieve any a breaching party hereto of any from liability or damages resulting from for any willful breach of any covenant, agreement, representation or warranty of this AgreementAgreement giving rise to such termination.
(ib) The In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Consolidation, the parties hereto agree that the Company shall pay to Parent a termination fee, representing liquidated damages, fee of $9,100,000 4.0 million (the “Termination Fee”) in the manner set forth below if:
(i) this Agreement is terminated by Parent pursuant to Section 8.01(g); or
(ii) (A) this Agreement is terminated by (1) Parent pursuant to Section 8.01(e) or (2) by either Parent or the Company pursuant to Section 8.01(c) and in the case of any termination pursuant to clause (1) or (2) an Acquisition Proposal shall have been publicly announced or otherwise communicated or made known to the senior management of the Company or the Company Board (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal) at any time after the date of this Agreement and prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of clause (2), or the date of termination of this Agreement, in the case of clause (1), and (B) within eighteen (18) months after such termination of this Agreement, the Company or a Subsidiary of the Company enters into any agreement with respect to, or consummates, an Acquisition Transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account specified designated by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by on the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, Agreement in the case of clause (i) above and on the date the Company consummates enters into any agreement with respect to, or consummates, an Acquisition Proposal;
(2) this Agreement is terminated by Transaction in the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
case of clause (ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges and Parent agree that the agreements agreement contained in paragraph (b) above are of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, and that without such agreements agreement Parent would not have entered into this Agreement, Agreement and that such amounts do not constitute a penaltypenalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay Parent any the amounts due under paragraph (b) above within the time period periods specified therein, the Company shall pay all the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any actionaction in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime lending rate of interest printed prevailing during such period as published in The Wall Street Journal Journal, calculated on a daily basis from the date such payment was amounts were required to be madepaid until the date of actual payment.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Banknorth Group Inc/Me)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind person on the part of any party hereto (or of any of its directorsrepresentatives or affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in herein and subject to Section 9.01 and 8.5(d) (ii) that including the limitation on liability set forth therein), no such termination shall relieve any party hereto of any liability or for damages to the other party hereto resulting from any willful a knowing or intentional breach of this Agreement or fraud and (ii) the provisions set forth in this Section 8.5, Section 6.14(b) (with respect to Parent’s reimbursement and indemnification obligations), Section 6.14(d), Section 8.6, Section 9.1, Section 9.3, Section 9.4, Section 9.5, Section 9.6, Section 9.7, Section 9.10, Section 9.11, Section 9.12, Section 9.13 and Section 9.14, the Confidentiality Agreement and the Guarantees (to the extent set forth therein) shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(i) (x) (1) in before obtaining the event that (ACompany Requisite Vote, this Agreement is terminated pursuant to Section 8.2(a) an or Section 8.4(e) and any person shall have made and publicly disclosed a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been made publicly withdrawn prior to such termination or (2) this Agreement is terminated pursuant to Section 8.4(b) and (y) within nine (9) months of such termination the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal entered into a definitive agreement with respect to such Acquisition Proposal and such Acquisition Proposal is consummated (provided that for purposes of this clause (y) the Company and references to “15%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(Bii) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.4(a), (xc) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;d); or
(2iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.;
Appears in 1 contract
Samples: Merger Agreement (Primedia Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in this Section 8.5 and Section 9.1) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of from any liability or for damages to any other party resulting from any willful breach of this AgreementAgreement or from any obligation to pay, if applicable, any amount payable pursuant to this Section 8.5.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) If this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d8.4(b).
(ii) Any Termination Fee required by this Section 8.05(b) , then the Company shall be paid promptly, but in no event later than two Business Days business days after the date of such termination; provided that with respect , pay Parent a fee equal to clause (2) above$100 million, the Termination Fee shall be paid payable by the Company prior wire transfer of same day funds to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to account designated by Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) If this Agreement is (i) terminated by the Company pursuant to Section 8.3(b), then the Company shall pay Parent a fee equal to $85 million (the “Termination Fee”) at the time set forth in Section 8.3(b), payable by wire transfer of same day funds to an account designated by Parent (it being understood and agreed that Parent shall provide the Company with wire transfer instructions for the payment of the Termination Fee within one calendar day after receipt of the notice contemplated by Section 8.3(b)(ii)), or (ii) terminated by Parent pursuant to Section 8.4(c), then the Company shall promptly, but in no event later than two business days after the date of such termination, pay Parent the Termination Fee, payable by wire transfer of same day funds to an account designated by Parent.
(d) For the avoidance of doubt, in no event shall the Company be required to pay both the Termination Fee and the fee contemplated by Section 8.5(b) or to pay the Termination Fee on more than one occasion. The Company acknowledges that the agreements contained in paragraph (b) above this Section 8.5 are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement. Accordingly, and that such amounts do not constitute a penalty. If if the Company fails to pay promptly pay any amount due pursuant to this Section 8.5, and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within or Merger Sub commences a suit which results in a judgment against the time period specified thereinCompany, the Company shall pay all to Parent and Merger Sub their costs and expenses (including reasonable attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required to be should have been made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) Any termination by the Company under this Article VIII shall not require any approval of the Stockholders, regardless of whether before or after the Requisite Stockholder Approval shall have been executed by the Stockholders. This Agreement may only be terminated pursuant to this Article VIII.
(b) In the event of the termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, consultants, contractors, agents, legal and financial advisors attorneys or other representativesRepresentatives); provided, except however, notwithstanding the foregoing, (i) as provided the liabilities and obligations under (A) this Section 8.5, Section 5.2, Section 6.2, Section 6.7(e), and Article IX and (B) the Confidentiality Agreement shall continue in Section 9.01 full force and effect and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach Willful Breach of this Agreement.
Agreement by such party (i) The Company shall pay a termination fee, representing liquidated damages, including the failure of $9,100,000 (such party to consummate the “Termination Fee”) Contemplated Transactions following the satisfaction of all the conditions to Parent payable the obligations of such party set forth in Article VII other than those conditions that by wire transfer of immediately available funds their terms are to an account specified by Parent in be satisfied at the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall Closing and could have been made to the Company satisfied or any of its stockholders or any Person shall would have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall been waived assuming a Closing would have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(coccurred).
(c) The Company acknowledges that Parent and Mergers Subs acknowledge and agree that, without in any way limiting the agreements contained in paragraph (b) above are an integral part Company’s rights under Section 9.8, recoverable damages of the transactions contemplated Company under this Agreement shall not be limited to reimbursement of expenses or out-of-pocket costs but shall also include the benefit of the bargain lost by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses Stockholders (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action“lost premium”), taking into consideration relevant matters, including the filing total amount payable to the Stockholders under this Agreement and the time value of any lawsuitmoney, taken to collect payment of which, in each case, shall be deemed in such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required event to be madedamages of the Company and shall be recoverable by the Company on behalf of its stockholders.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than this Section 8.5, Sections 5.2(c) and 6.13, and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors advisors, or other representatives); provided, however, that except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with in respect to of the Company or any of its subsidiaries and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(b) (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) provided that within twelve (12) 9 months of the termination of this AgreementAgreement any Acquisition Proposal by a third party is entered into, agreed to, or consummated by the Company consummates an Acquisition Proposal;
Company) or (2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
, or (3iii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(a) or Section 8.04(d).
8.4(b) as a result of a material breach by the Company of any of the covenants set forth in Section 6.5 hereof, then the Company shall pay Parent a termination fee of $41,700,000 in same-day funds, on the date of such termination, in the case of clause (ii) Any Termination Fee required by this Section 8.05(bor (iii), or on the earlier of the date an agreement is entered into in respect of an Acquisition Proposal or an Acquisition Proposal is consummated in the case of clause (i), provided, however, that notwithstanding the foregoing, Parent will not be entitled to a termination fee pursuant to clause (i) shall be paid promptlyabove in the event the Acquisition Proposal entered into, but agreed to or consummated after such termination is an Acquisition Proposal whereby (A) the Company or any of its subsidiaries acquires a third party (the "EXEMPT ACQUIRED PERSON") pursuant to a merger, consolidation, recapitalization, share exchange or similar transaction in which the Company survives and the shareholders of the Exempt Acquired Person receive shares of Company Common Stock which, immediately following consummation of such merger, consolidation, recapitalization, share exchange or similar transaction, will represent no event later more than two Business Days 45% of the issued and outstanding shares of Company Common Stock (or securities convertible or exchangeable into, or exercisable for Company Common Stock, whether upon the passage of time or otherwise) and (B) such Exempt Acquired Person, or any affiliate or affiliates thereof, was or were not the subject of an Acquisition Proposal at any time after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company hereof prior to the termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (bSection 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within commences a suit which results in a judgment against the time period specified thereinCompany for the fee set forth in this Section 8.5, the Company shall pay all to Parent its costs and expenses (including including, attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest from the date of termination of this Agreement on the amount of any such unpaid amounts owed at the publicly announced prime rate of interest printed Bank of America, N.A., in The Wall Street Journal on the date effect from time to time during such payment was required to be madeperiod.
Appears in 1 contract
Samples: Merger Agreement (Unitrode Corp)
Effect of Termination and Abandonment. (a) In Except as provided in paragraph (b) below, in the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from fraud or any willful material breach of this Agreement and (ii) the provisions set forth in this Section 8.5 and the second sentence of Section 9.1 shall survive the termination of this Agreement.
(b) In the event that this Agreement is terminated:
(i) The by either the Company or Sponsor pursuant to Section 8.2(a) (and, at the time of such termination pursuant to Section 8.2(a), any of the conditions set forth in Section 7.1(a), Section 7.1(c) or Section 7.1(e) shall not have been met), Section 8.2(c) or Section 8.2(d) and, at the time of such termination, the board of directors of the Company or any duly authorized committee thereof shall not have made and not withdrawn a Change of Recommendation, then promptly, but in no event later than three (3) business days, after the date of such termination, the Company shall pay a termination feeto Sponsor all of the reasonable and documented out-of-pocket expenses, representing liquidated damagesincluding those of the Paying Agent, incurred by Sponsor or any of its Affiliates in connection with this Agreement and the Merger and the other transactions contemplated by this Agreement (including any fees payable by and any other out-of-pocket expenses of Sponsor or any of its Affiliates in connection with the Debt Financing), in an amount not to exceed $9,100,000 17,000,000 (the “Termination FeeSponsor Expense Reimbursement”);
(ii) by either the Company or Sponsor pursuant to Parent payable by wire transfer Section 8.2(a) (and, at the time of immediately available funds such termination pursuant to an account specified by Parent in the event of Section 8.2(a), any of the following:conditions set forth in Section 7.1(a), Section 7.1(c) or Section 7.1(e) shall not have been met), Section 8.2(c) or Section 8.2(d) (provided that, at the time of such termination pursuant to Section 8.2(c) or Section 8.2(d), the board of directors of the Company or any duly authorized committee thereof shall not have made and not withdrawn a Change of Recommendation) and, in each case, either
(A) (1) in the event that (A) an a bona fide Acquisition Proposal shall have been made to the Company or any of its stockholders Subsidiaries or SunEdison or a substantial portion of its creditors, or any Person shall have publicly announced an intention (whether or not conditional) to make an a bona fide Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant Proposal shall not have been publicly withdrawn prior to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement event giving rise to such paymentthe applicable right of termination, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.and
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of that this Agreement is terminated and the abandonment of the Merger is abandoned pursuant to this Article VIIIVII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any member of its directorsthe Parent Group or the Company Group); provided, officers, employees, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability to pay the Company Termination Fee or damages resulting from the Parent Termination Fee, as applicable, pursuant to this Section 7.5 or, subject to Sections 7.5(e) and 7.5(f), relieve the Company or Parent or Merger Sub of any willful breach liability for any Willful Breach of this Agreement prior to such termination, and (ii) the provisions listed in the second sentence of Section 8.1 shall survive the termination of this Agreement. The party desiring to terminate this Agreement pursuant to Sections 7.2, 7.3 or 7.4 shall give written notice of such termination, including a description in reasonable detail of the reasons for such termination, to the other parties in accordance with Section 8.6, specifying the provision or provisions hereof pursuant to which such termination is effected.
(b) In the event that:
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) this Agreement is terminated pursuant to Section 7.2(a), Section 7.2(b) or Section 7.4(b) (provided that with respect to Section 7.2(a) and Section 7.4(b), the Stockholder Approval has not been obtained); (B) any Person shall have publicly proposed, announced or made an Acquisition Proposal or, in the case of a termination pursuant to Section 7.4(b), an Acquisition Proposal shall have been made provided to the Company’s management, the Company Board or any committee thereof (including the Special Committee), in either case after the date of its stockholders or any Person shall have publicly announced an intention this Agreement and prior to the Stockholders Meeting (whether or not conditional) to make an and such Acquisition Proposal with respect shall not have been withdrawn at least two (2) Business Days prior to the Company and (BStockholders Meeting) thereafter this Agreement is terminated by either Parent or and, in the Company case of a termination pursuant to (x) Section 8.02(a) 7.4(b), prior to the breach that forms the basis for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) termination; and (C) within twelve (12) months of the such termination of this Agreement, the Company consummates shall have consummated an Acquisition Proposal or entered into a definitive agreement for an Acquisition Proposal that is subsequently consummated (whether consummated within such twelve (12)-month period or thereafter), then the Company shall, on the date such Acquisition Proposal is consummated, pay the Company Termination Fee to Parent (or its designee) by wire transfer of same day funds to one or more accounts designated by Parent; provided, that for purposes of clauses (B) and (C) above the references to “20%” and “80%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”;
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a7.3(a), the Company shall, prior to or substantially concurrently with such termination, pay the Company Termination Fee to Parent (or its designee) by wire transfer of same day funds to one or more accounts designated by Parent; provided, that if this Agreement is terminated by the Company pursuant to Section 7.3(a) prior to or on the No-Shop Period Start Date in order for the Company to enter into a definitive Alternative Acquisition Agreement with an Excluded Party to consummate an Acquisition Proposal at the time of such termination (which shall, in any event, have occurred prior to or on the No-Shop Period Start Date), then the Company Termination Fee shall equal $38,602,844.75; or
(3iii) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d7.4(a).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in the Company shall, no event later than two three (3) Business Days after the date of such termination; provided that with respect to clause (2) above, pay the Company Termination Fee to Parent by wire transfer of same day funds to one or more accounts designated by Parent. For the avoidance of doubt, in no event shall be paid by the Company prior be required to termination pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable under more than one provision of this Agreement; Agreement at the same or at different times and provided further that with respect to clause (1) above, upon the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach occurrence of any covenant or agreement giving rise to such payment, subject to Section 8.05(c)different events.
(c) In the event that this Agreement is terminated by the Company pursuant to Section 7.3(c), then Parent shall, no later than three (3) Business Days after the date of such termination, pay or cause to be paid the Parent Termination Fee to the Company or its designees by wire transfer of same day funds to one or more accounts designated by the Company (it being understood that in no event shall Parent be required to pay the Parent Termination Fee on more than one occasion); provided, that any purported termination of this Agreement under Section 7.2(a) shall be deemed to be a termination under Section 7.3(c) if, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 7.3(c).
(d) In the event that the Company shall fail to pay the Company Termination Fee, or Parent shall fail to pay the Parent Termination Fee, in either case as required pursuant to this Section 7.5 when due, such fee shall accrue interest for the period commencing on the date such fee became past due, at a rate equal to the rate of interest publicly announced by JPMorgan Chase Bank, National Association, in the City of New York from time to time during such period, as such bank’s prime lending rate. The Company acknowledges and Parent each acknowledge that the agreements contained in paragraph (b) above fees and the other provisions of this Section 7.5 are an integral part of this Agreement and are not a penalty, but rather liquidated damages in a reasonable amount that will compensate the other party in the circumstances in which such fee is payable, and that, without these provisions, the other party would not enter into this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, in the event that Parent and Merger Sub fail to effect the Closing or otherwise breach this Agreement or fail to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the termination of this Agreement as permitted by Section 8.7, (i) the Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) Parent, Merger Sub and the Equity Investors, (B) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of Parent, Merger Sub or any Equity Investor or (C) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Parent Group”) or the Lender Related Parties in respect of this Agreement, any agreement executed in connection herewith, including the Commitment Letters and the Limited Guarantee, and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Parent Termination Fee pursuant to Section 7.5(c) (including any interest payable pursuant to Section 7.5(d)) and, as applicable, the reimbursements and indemnification contemplated by this AgreementSection 5.13 from Parent or pursuant to the Limited Guarantee, and that without such agreements (y) following the termination of this Agreement by either party under circumstances in which the Parent would Termination Fee is not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails payable pursuant to promptly pay Parent any amounts due under paragraph (b) above within the time period specified thereinSection 7.5(c), the Company Company’s right to seek monetary damages from Parent in the event of Parent’s or Merger Sub’s Willful Breach of this Agreement prior to the termination of this Agreement and collect, as applicable, the reimbursements and indemnification contemplated by Section 5.13 from Parent (provided that in no event shall pay all costs Parent be subject to an aggregate amount for monetary damages for Willful Breach of this Agreement and, as applicable, the reimbursements and expenses indemnification contemplated by Section 5.13 in an amount in excess of an amount equal to the Parent Termination Fee (including attorneys’ feesthe “Damage Cap”)) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect and (ii) upon payment of such amounts, together with interest on no member of the Parent Group or the Lender Related Parties shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith, the Commitment Letters or the Limited Guarantee, or the transactions contemplated hereby or thereby; provided, that in no event will the Company be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts in excess of the amount of the Damage Cap, (2) payment of both monetary damages and the Parent Termination Fee in a combined amount in excess of the Damage Cap, or (3) both (x) payment of any monetary damages and/or the Parent Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against Parent or Merger Sub that results in the Closing.
(f) Notwithstanding anything to the contrary in this Agreement, in the event that the Company fails to effect the Closing or otherwise breaches this Agreement or fails to perform hereunder (whether willfully, intentionally, unintentionally or otherwise), then, except for an order of specific performance prior to the termination of this Agreement as permitted by Section 8.7, (i) Parent’s and Merger Sub’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against (A) the Company and its Subsidiaries, (B) the former, current and future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of the Company or its Subsidiaries or (C) any future holders of any equity, partnership or limited liability company interest, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders or assignees of any of the foregoing (collectively, the “Company Group”) in respect of this Agreement, any agreement executed in connection herewith and the transactions contemplated hereby and thereby shall be (x) to terminate this Agreement in accordance with this Article VII and collect, if due, the Company Termination Fee pursuant to Section 7.5(b) (including any interest payable pursuant to Section 7.5(d)) from the Company, and (y) following the termination of this Agreement by either party, Parent’s right to seek monetary damages from the Company in the event of the Company’s Willful Breach of this Agreement prior to the termination of this Agreement (provided that in no event shall the Company be subject to monetary damages for Willful Breach of this Agreement in an amount in excess of the Damage Cap) and (ii) upon payment of such unpaid amounts, no member of the Company Group shall have any further liability or obligation relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby or thereby; provided, that in no event will Parent and Merger Sub be entitled to (1) payment of monetary damages prior to the termination of this Agreement or in amounts at in excess of the publicly announced prime rate amount of interest printed the Damage Cap, (2) payment of both monetary damages and the Company Termination Fee in The Wall Street Journal on a combined amount in excess of the date such Damage Cap, or (3) both (x) payment was required to be madeof any monetary damages and/or the Company Termination Fee and (y) a grant of specific performance of this Agreement or any other equitable remedy against the Company that results in the Closing.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, no party to this Agreement shall become void and of no effect with no have any liability or further obligation of to any kind on the part of any other party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), hereunder except (i) as provided set forth in this Section 8.02 and Section 9.01 and (ii) that no such termination shall will not relieve any a breaching party hereto of any from liability or damages resulting from for any willful breach of any covenant, agreement, representation or warranty of this AgreementAgreement giving rise to such termination.
(ib) The In recognition of the efforts, expenses and other opportunities foregone by Parent while structuring and pursuing the Merger, the parties hereto agree that the Company shall pay to Parent a termination fee, representing liquidated damages, fee of $9,100,000 12.0 million (the “Termination Fee”) if this Agreement’s terminated as follows:
(i) if this Agreement is terminated by Parent pursuant to Section 8.01(g) or (h), then the Company shall pay the entire Termination Fee to Parent on the first Business Day following such termination; and
(ii) (A) if this Agreement is terminated by (1) Parent pursuant to Section 8.01(e) as a result of a willful breach by the Company or (2) by either Parent or the Company pursuant to Section 8.01(c) and in the case of any termination pursuant to clause (1) or (2) an Acquisition Proposal shall have been publicly announced and not withdrawn prior to the Company Meeting in the case of clause (2) or termination in the case of clause (1) (or any Person shall have publicly announced, communicated or made known an intention, whether or not conditional, to make an Acquisition Proposal, and shall not have publicly withdrawn such announcement, communication or intention prior to the Company Meeting in the case of clause (2) or termination in the case of clause (1)) or, in the case of clause (1) only, otherwise communicated or made known to the senior management of the Company or the Company Board, and not withdrawn prior to termination, at any time after the date of this Agreement and prior to the taking of the vote of the shareholders of the Company contemplated by this Agreement at the Company Meeting, in the case of clause (2), or the date of termination of this Agreement, in the case of clause (1), then the Company shall pay the Termination Fee to Parent if within eighteen (18) months after such termination of this Agreement the Company or a Subsidiary of the Company enters into any agreement with respect to, or consummates, an Acquisition Transaction, on the date of execution of such agreement or consummation of an Acquisition Transaction. Any amount that becomes payable pursuant to this Section 8.02(b) shall be paid by wire transfer of immediately available funds to an account specified designated by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges and Parent agree that the agreements agreement contained in paragraph (b) above are of this Section 8.02 is an integral part of the transactions contemplated by this Agreement, and that without such agreements agreement Parent would not have entered into this Agreement, Agreement and that such amounts do not constitute a penaltypenalty or liquidated damages in the event of a breach of this Agreement by the Company. If the Company fails to promptly pay Parent any the amounts due under paragraph (b) above within the time period periods specified therein, the Company shall pay all the costs and expenses (including attorneys’ feesreasonable legal fees and expenses) incurred by Parent from the date such amounts were required to be paid in connection with any actionaction in which Parent prevails, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime lending rate of interest printed prevailing during such period as published in The Wall Street Journal Journal, calculated on a daily basis from the date such payment was amounts were required to be madepaid until the date of actual payment.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) except as provided in Section 9.01 and (ii) that otherwise specified herein, no such termination shall relieve any party hereto of any liability or damages to the other party hereto resulting from any the willful material breach of this Agreement and (ii) the provisions set forth in the second sentence of Section 9.1 shall survive termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its stockholders Subsidiaries or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (x) thirty (30) business days prior to, with respect to any termination pursuant to Section 8.2(i)(Outside Date), the date of termination, and (By) at least ten (10) business days prior to, with respect to termination pursuant to Section 8.2(ii) (Company No Vote), the date of the Company Shareholders Meeting) and thereafter this Agreement is terminated by either Parent or the Company pursuant to Section 8.2(i) (xOutside Date) or Section 8.02(a8.2(ii) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the (Company or No Vote), (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2ii) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
8.3(a) (3Company takes Superior Proposal) or (iii) this Agreement is terminated by Parent pursuant to Section 8.04(b8.4(b)(i) or Section 8.04(d(Company Change of Recommendation; no Company meeting by outside date; Company fails to reaffirm; Company recommends tender).
(ii) Any Termination Fee required by this Section 8.05(b) , other than as a result of the occurrence of a Parent Material Adverse Effect, then the Company shall be paid promptly, but in no event later than two Business Days days after the date of such termination, pay Parent a termination fee of $18,000,000 (the “Company Termination Fee”); provided provided, however, that with respect the Company Termination Fee to be paid pursuant to clause (2iv) aboveof Section 8.3(a) (Company takes Superior Proposal) shall be paid as set forth in such section; and shall promptly, but in no event later than two days after being notified of such by Parent, pay all of the out-of-pocket expense, including those of the Exchange Agent, reasonably incurred by Parent or Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $5 million; provided, further, that no Company Termination Fee shall be paid by the Company prior payable to termination of this Agreement; and provided further that with respect Parent pursuant to clause (1i) above, or (iii) of this paragraph (b) and no reimbursement of expenses pursuant to clause (i) of this paragraph (b) shall occur unless and until within 12 months after such termination the Termination Fee Company or any of its Subsidiaries shall be paid prior to the Company’s entering have entered into an Alternative Acquisition Agreement (which is a definitive agreement) with respect to, or consummatingshall have consummated or shall have approved or recommended to the Company’s shareholders or otherwise not publicly opposed, approving or recommending an Acquisition Proposal made by the Person who made the Acquisition Proposal in clause (i) above, or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parentaffiliate of, or Person acting in concert with, such Termination Fee shall upon payment thereof be Person (substituting “50%” for “20%” in the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(cdefinition thereof).
(c) . The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent or Merger Sub commences a suit that results in a judgment against the Company for the fee set forth in this Section 8.5(b) or any amounts due under paragraph (b) above within the time period specified thereinportion of such fee, the Company shall pay all to Parent or Merger Sub its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such suit.
(c) In the event that (i) an Acquisition Proposal shall have been made to Parent or any of its Subsidiaries or any of its shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to Parent or any of its Subsidiaries (and such Acquisition Proposal or publicly announced intention shall not have been publicly withdrawn without qualification at least (x) thirty (30) business days prior to, with respect to any termination pursuant to Section 8.2(i) (Outside Date), the date of termination, and (y) at least ten (10) business days prior to, with respect to termination pursuant to Section 8.2(iii) (Parent No Vote), the date of the Parent Shareholders Meeting) and thereafter this Agreement is terminated by either the Company or Parent pursuant to Section 8.2(i) (Outside Date), or 8.2(iii) (Parent No Vote), (ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) (Parent takes Superior Proposal) or (iii) this Agreement is terminated by the Company pursuant to Section 8.3(b)(i) (Parent Change of Recommendation; no Parent meeting by outside date; Parent fails to reaffirm; Parent recommends tender), other than as a result of the occurrence of a Company Material Adverse Effect, then Parent shall promptly, but in no event later than two days after the date of such termination pay the Company a termination fee of $18,000,000 (the “Parent Termination Fee”); provided, however, that the Parent Termination Fee to be paid pursuant to clause (iv) of Section 8.4(a) (Parent takes Superior Proposal) shall be paid as set forth in such section; and shall promptly, but in no event later than two days after being notified of such by the Company, pay all of the out-of-pocket expenses reasonably incurred by the Company in connection with this Agreement and the transactions contemplated by this Agreement up to a maximum amount of $5 million; provided, further, that no Parent Termination Fee shall be payable to the Company pursuant to clause (i) or (iii) of this paragraph (c) and no reimbursement of expenses pursuant to clause (i) of this paragraph (c) shall occur unless and until within 12 months after such termination Parent or any of its Subsidiaries shall have entered into an Alternate Acquisition Agreement (which is a definitive agreement) with respect to, or shall have consummated or shall have approved or recommended to Parent’s shareholders or otherwise not publicly opposed, an Acquisition Proposal made by the Person who made the Acquisition Proposal in clause (i) above, or any affiliate of, or Person acting in concert with, such Person (substituting “50%” for “20%” in the definition thereof). Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to promptly pay the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit that results in a judgment against Parent for the fee set forth in this Section 8.5(c) or any portion of such fee, Parent shall pay to the Company its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) in connection with such suit.
(d) For purposes of this Section 8.5, an Acquisition Proposal shall not be deemed to have been “publicly withdrawn” if, within twelve (12) months of such termination, Parent or the Company, as applicable, or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have consummated or shall have approved or recommended to the Parent’s or the Company’s shareholders, as applicable, or otherwise not opposed, an Acquisition Proposal.
(e) (i) Notwithstanding any other provision in this Agreement, neither the Company Termination Fee nor the Parent Termination Fee shall exceed the sum of (A) the amount that it is determined should not be gross income to Parent or the Company, as applicable for purposes of the requirements of Sections 856(c)(2) and (3) of the Code, with such determination to be set forth in an opinion of outside tax counsel selected by Parent or the Company, as applicable (the “Counsel’s Gross Income Opinion”) plus (B) such additional amount that it is estimated can be paid to Parent or the Company, as applicable in such taxable year without creating a risk that the payment would cause Parent or the Company, as applicable to fail to meet the requirements of Section 856(c)(2) and (3) of the Code, determined as if the payment of such amount did not constitute income described in Section 856(c)(2) and 856(c)(3) of the Code (“Qualifying Income”), which determination shall be made by independent tax accountants to Parent or the Company, as applicable plus (C) in the event Parent or the Company, as applicable receives a letter from outside tax counsel to Parent or the Company, as applicable (“Counsel’s Ruling Letter”) indicating that Parent or the Company, as applicable has received a ruling from the Internal Revenue Service holding that Parent’s receipt of the Company Termination Fee or the Company’s receipt of the Parent Termination Fee, as applicable either would constitute Qualifying Income or would be excluded from gross income of Parent or the Company, as applicable for purposes of Sections 856(c)(2) and (3) of the Code (the “Specified REIT Requirements”), the entire Parent Termination Fee or Company Termination Fee, as applicable less the amounts contemplated by clauses (A) and (B) above. The obligation of the Company or Parent, as applicable to pay any unpaid portion of the Company Termination Fee or Parent Termination Fee, as applicable that remains unpaid solely by reason of this Section 8.5(e) shall terminate five years from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be madeotherwise would have been made but for this Section 8.5(e).
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.01) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except (i) as otherwise provided in Section 9.01 and (ii) that herein, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in In the event that (Ai) an Acquisition Proposal shall have been made to the Company or any of its stockholders shareholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (xA) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (yB) Section 8.02(b)(ii) and or (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;
(2ii) this Agreement is terminated (A) by the Company pursuant to Section 8.03(a); or
) or (3B) this Agreement is terminated by Parent pursuant to Section 8.04(b8.04(a) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) , then the Company shall be paid promptly, but in no event later than two (2) Business Days after the date of such termination; , pay a termination fee, representing liquidated damages, of $1,500,000 (the “Termination Fee”) payable by wire transfer of immediately available funds to an account specified by Parent. In the event that either party terminates this Agreement pursuant to Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of Parent, provided that with respect it is understood that the failure of the Securities and Exchange Commission to clause have declared the S-4 Registration Statement Effective shall not, by itself, evidence knowing action or inaction of Parent, then Parent shall promptly, but in no event later than two (2) above, Business Days after the date of such termination pay the Termination Fee shall be paid by wire transfer of immediately available funds to an account specified by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) . Notwithstanding any Termination Fee paid to Parenta party, such Termination Fee shall upon payment thereof not be the sole remedy for available to Parent with respect in the event that the Company has breached Section 6.06 or to either party in the event that the other party has willfully breached any breach other provision of any covenant this Agreement and a party shall be entitled to pursue all remedies to which it is entitled at law or agreement giving rise to such payment, subject to Section 8.05(c)in equity.
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any the amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime or base rate of interest printed in The Wall Street Journal on Citibank, N.A. from the date such payment was amounts were required to be madepaid.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event that any person shall have made an Alternative Proposal for the Company and (i) thereafter this Agreement is terminated pursuant to Section 7.3(a) or clause (i) of Section 7.4 or (ii) this Agreement is terminated for any other reason (other than the breach of this Agreement by the Purchaser) and, in the case of this clause (ii) only, a transaction contemplated by such Alternative Proposal is consummated within one year after such termination (either of the foregoing events being called a "Payment Event"), then the Company shall reimburse to the Purchaser its reasonably and appropriately documented costs and expenses incurred in connection with the Merger which amount shall be payable by wire transfer of same day funds either on the date contemplated in the last sentence of Section 7.3 if applicable or, otherwise, within two business days after such amount becomes due. The Company acknowledges that the agreements contained in this Section 7.5(a) are an integral part of the transactions contemplated in this Agreement, and that, without these agreements, the Purchaser would not enter into this Agreement; accordingly, if the Company fails to promptly pay the amount due pursuant to this Section 7.5(a), and, in order to obtain such payment, the Purchaser commences a suit which results in a judgment against the Company for the fee set forth in this Section 7.5(a), the Company shall pay to the Purchaser its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the original amount at the prime rate as reported in The Wall Street Journal on the date of such judgment.
(b) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII7, all obligations of the parties hereto shall terminate, except the obligations of the parties pursuant to this Section 7.5 and except for the provisions of Sections 5.9, 8.3, 8.4, 8.6, 8.8, 8.9, 8.12 and 8.13. Moreover, in the event of termination of this Agreement pursuant to Sections 7.2, 7.3 or 7.4, nothing herein shall become void and prejudice the ability of no effect with no liability or further obligation of the non-breaching party from seeking damages from any kind on the part of any other party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives), except (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability or damages resulting from for any willful breach of this Agreement.
(i) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal with respect to the Company and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination material provision of this Agreement, including without limitation, attorneys' fees and the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant right to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) pursue any remedy at law or Section 8.04(d)in equity.
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Samples: Merger Agreement (Firecom Inc)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind person on the part of any party hereto (or of any of its directorssubsidiaries, officersofficers or directors or any Parent Related Party); provided, employeeshowever, agentsand notwithstanding anything in the foregoing to the contrary, legal and financial advisors or other representatives), except that (i) except as otherwise provided in herein and subject to Section 9.01 and 8.5(d) (ii) that including the limitation on liability set forth therein), no such termination shall relieve any party hereto of any liability or for damages to the other party hereto resulting from any willful and intentional breach of this Agreement and (ii) the provisions set forth in Section 6.13(c), Section 6.15(c), this Section 8.5 and Article IX, the Confidentiality Agreement and the Equity Financing Commitments (to the extent set forth therein) shall survive the termination of this Agreement. For purposes of this Agreement, “willful and intentional breach” shall mean a material breach that is a consequence of an omission by, or act undertaken by or caused by, the breaching party with the knowledge (actual or constructive) that the omission or taking or causing of such act would, or would reasonably be expected to, cause a breach of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(1i) in the event that (Ax) an Acquisition Proposal shall have been made this Agreement is terminated pursuant to the Company Section 8.2(a), Section 8.2(b) or Section 8.4(c), (y) any of its stockholders or any Person person shall have publicly announced an intention or otherwise communicated (whether or not conditionalwhich communication, for purposes of a termination pursuant to Section 8.2(b) of the preceding clause (x) only, shall be public) to make the Company Board or the Company’s shareholders an Acquisition Proposal after the date of this Agreement but prior to such termination, which Acquisition Proposal had not been publicly withdrawn prior to (1) the termination of this Agreement (in connection with respect a termination pursuant to Section 8.2(a) or Section 8.4(c) of the Company preceding clause (x)) or (2) the Shareholders Meeting (in connection with a termination pursuant to Section 8.2(b) of the preceding clause (x)), and (Bz) thereafter this Agreement is terminated by either Parent prior to or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of such termination the termination Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or consummated any Acquisition Proposal (in each case whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (y)) (provided that for purposes of this AgreementSection 8.5(b)(i), the Company consummates an references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) or 8.4(b) (or is terminated by the Company at a time when this Agreement was terminable pursuant to Section 8.4(a) or 8.4(b)); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.;
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 6.2 (as to the Parent-Company standstill agreement), Section 6.11, this Section 8.5 and Article IX) shall become void and of no effect with no liability or further obligation of any kind on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and or financial advisors or other representatives); provided, except (i) as provided in Section 9.01 and (ii) however, that no such termination shall relieve any party hereto of from any liability or for damages to any other party resulting from any prior willful or intentional breach of this AgreementAgreement or from any obligation to pay, if applicable, the fees and reimbursement of expenses in accordance with Sections 6.11, 8.5(b) or 8.5(c).
(ib) The If this Agreement is terminated by the Company pursuant to Section 8.3(b), the Company shall pay to Parent a termination fee, representing liquidated damages, of fee equal to $9,100,000 1.7 billion (the “"Termination Fee”") at the time set forth in Section 8.3(b). If this Agreement is terminated by Parent pursuant to Section 8.4(c) the Company shall promptly, but in no event later than two days after such termination, pay to Parent payable the Termination Fee by wire transfer of immediately available funds to an account specified same day funds. If (i) this Agreement is terminated (x) by Parent in or the event of any of the following:
Company pursuant to Section 8.2(b) or (1y) by Parent pursuant to Section 8.4(a) or pursuant to Section 8.4(b) (solely with respect to a willful and intentional breach), (ii) in the event that case of clause (A) an Acquisition Proposal shall have been made x), prior to the vote on adoption of this Agreement at the Company Shareholders Meeting, but after the date of this Agreement, one or more bona fide Acquisition Proposals (other than from Parent or any of its stockholders Subsidiaries) involving 50% or more of the outstanding Company Shares or assets of the Company (including its interests in Cingular) representing 50% or more of the fair market value of the consolidated assets of the Company (including its interests in Cingular) or otherwise involving a transaction or series of transactions that could reasonably be expected to result in value to holders of Company Shares comparable to or more favorable than the transactions contemplated by this Agreement (a "Covered Proposal") shall have been publicly made or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition a Covered Proposal with respect to and, in the case of clause (y), a Covered Proposal shall have been made after the date of this Agreement and (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its affiliates or the Company and any of its Subsidiaries) (Ban "Acquiring Person") thereafter this Agreement is terminated has acquired, or has entered into an agreement to acquire, by either Parent acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding Company Shares (or shareholders of the Company immediately prior to such transaction cease to hold at least 50% of the Company Shares (or any successor shares) after such transaction) or at least 50% of the fair market value of the Company's consolidated assets (including its interests in Cingular) or the Company pursuant to (x) Section 8.02(a) for failure or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the Merger to be consummated by the date specified therein and such failure is the result fair market value of the knowing action Company's consolidated assets or inaction of the Company or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that in, one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer or similar transaction and thereafter completes such transaction or a substantially similar transaction (y) Section 8.02(b)(ii) and (C) within twelve (12) months of it being understood that a difference in consideration shall not be taken into account in determining if the termination of this Agreementcompleted transaction is substantially similar), then the Company consummates an Acquisition Proposal;
(2) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
(3) this Agreement is terminated by Parent pursuant to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days days after the date completion of termination; provided that with respect to clause (2) abovesuch transaction or the time such agreement is entered into as the case may be, pay Parent the Termination Fee shall be paid (less any amounts reimbursed to Parent pursuant to the next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or the Company prior pursuant to termination of this Agreement; and provided further that with respect Section 8.2(b) or by Parent pursuant to clause (1) aboveSection 8.4(a), the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if then the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to promptly, but in no event later than two days after a request from Parent, reimburse Parent for all fees and expenses (up to a maximum of $120 million) incurred by Parent and its Subsidiaries (plus 60% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such Termination Fee shall upon payment thereof reimbursement amount to be the sole remedy for Parent with respect to any breach payable by wire transfer of any covenant or agreement giving rise to such payment, subject to Section 8.05(c).
(c) same day funds. The Company acknowledges that the agreements contained in paragraph (bthis Section 8.5(b) above are an integral part of the transactions contemplated by this Agreement, and that that, without such agreements these agreements, Parent and Merger Sub would not have entered enter into this Agreement; accordingly, and that such amounts do not constitute a penalty. If if the Company fails to pay promptly pay the amount due pursuant to this Section 8.5(b), and, in order to obtain such payment, Parent any amounts due under paragraph (b) above within or Merger Sub commences a suit which results in a judgment against the time period specified thereinCompany for the fee set forth in this Section 8.5(b), the Company shall pay all to Parent or Merger Sub its costs and expenses (including attorneys’ ' fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amountssuit, together with interest on the amount of any such unpaid amounts the fee at the publicly announced prime rate of interest printed Citibank N.A. in The Wall Street Journal effect on the date such payment was required should have been made.
(c) If (i) this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c) or by the Company pursuant to Section 8.3(a), (ii) prior to Parent Stockholders Meeting, but after the date of this Agreement, a Covered Proposal (for this purpose substituting therein Parent for each reference to the Company and Parent Common Stock for each reference to Company Shares and disregarding the second proviso in the definition of "Acquisition Proposal" and substituting "Section 6.1(b)(viii)" for "Section 6.1(a)(ix) or (xiii)" in the definition of "Acquisition Proposal") other than any such Acquisition Proposal from the Company or any of its Subsidiaries (a "Parent Covered Proposal") shall have been publicly made or any Person shall have publicly announced an intention (whether or not conditional) to make a Parent Covered Proposal and (iii) within 12 months after the date of a termination, any Person (other than Parent or any of its Subsidiaries or the Company and any of its Subsidiaries) (a "Parent Acquiring Person") has acquired, or has entered into an agreement to acquire, by acquisition, merger, consolidation or other business combination transaction or by purchase, sale, assignment, lease, transfer or otherwise, in one transaction or in a series of related transactions, at least 50% of the outstanding shares of Parent Common Stock (or stockholders of Parent immediately prior to such transactions cease to hold at least 50% of the shares of Parent Common Stock (or successor shares) after such transaction) or at least 50% of the fair market value of Parent's consolidated assets (including its interest in Cingular) or Parent or one or more of its Subsidiaries transfers or otherwise disposes of at least 50% of the fair market value of Parent's consolidated assets or Parent or one or more of its Subsidiaries publicly announces its intention to effect any such acquisition, transfer or disposition that, in one or a series of related transactions, includes as the principal part thereof an extraordinary dividend, spin-off, split-off, distribution, reclassification, issuer tender offer or similar transaction and thereafter completes such transaction or a substantially similar transaction (it being understood that a difference in consideration shall not be taken into account in determining if the completed transaction is substantially similar), then Parent shall promptly, but in no event later than two days after the date of consummation of such acquisition or at the time such agreement is entered into, as the case may be, pay to the Company the Termination Fee (less any amounts reimbursed to the Company pursuant to the next sentence), payable by wire transfer of same day funds. If this Agreement is terminated by Parent or the Company pursuant to Section 8.2(c) or by the Company pursuant to Section 8.3(a), then Parent shall promptly, but in no event later than two days after a request from the Company, reimburse the Company for all fees and expenses (up to a maximum of $120 million) incurred by the Company and its Subsidiaries (plus 40% of all fees and expenses incurred by Cingular and its Subsidiaries) in connection with this Agreement and the transactions contemplated hereby, such reimbursement amount to be payable by wire transfer of same day funds. Parent acknowledges that the agreements contained in this Section 8.5(c) are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, the Company would not enter into this Agreement; accordingly, if Parent fails to pay promptly the amount due pursuant to this Section 8.5(c), and, in order to obtain such payment, the Company commences a suit which results in a judgment against Parent for the fee or reimbursement set forth in this Section 8.5(c), Parent shall pay to the Company its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank N.A. in effect on the date such payment should have been made.
Appears in 1 contract
Samples: Merger Agreement (Bellsouth Corp)
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) as provided in Section 9.01 and (ii) that no such termination shall relieve any party hereto of any liability to pay the Termination Fee, Parent Fee or Parent Expenses pursuant to this Section 8.5, (ii) subject to the limitations set forth in Sections 8.5(e) and (f), no such termination shall relieve any of the parties of liability or damages resulting from any willful breach for fraud and (iii) the agreements of the parties contained 6.10 (Expenses), Section 6.19 (Confidentiality), the indemnification and reimbursement provisions of Section 6.13(f), this 8.5, and Article IX, the Confidentiality Agreements and the Parent Fee Commitment Letter shall survive the termination of this AgreementAgreement (in the case of the Confidentiality Agreements and Parent Fee Commitment Letter, subject to the terms thereof).
(b) In the event that:
(i) The Company shall pay a termination fee(x) this Agreement is terminated pursuant to Section 8.2(b), representing liquidated damages, of $9,100,000 (the “Termination Fee”y) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in the event of any of the following:
(1) in the event that (A) an Acquisition Proposal shall have been made to the Company or any of its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an disclosed a bona fide Acquisition Proposal with respect after the date hereof and prior to such termination, which Acquisition Proposal had not been publicly withdrawn prior to the Company Shareholders Meeting, and (B) thereafter this Agreement is terminated by either Parent or the Company pursuant to (x) Section 8.02(a) for failure of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (Cz) within twelve (12) months of after such termination the termination Company shall have entered into a definitive agreement with respect to any Acquisition Proposal or consummated any Acquisition Proposal (provided, that for purposes of this Agreement, clause (z) the Company consummates an references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”);
(2ii) this Agreement is terminated by Parent pursuant to Section 8.4(a); or
(iii) this Agreement is terminated by the Company pursuant to Section 8.03(a8.3(a); orthen the Company shall:
(3A) this Agreement is terminated by Parent pursuant to Section 8.04(bin the case of clause (i) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid above, promptly, but in no event later than two three (3) Business Days, after the date on which the Company consummates the Acquisition Proposal referred to in subclause (i)(z) above, pay Parent the Termination Fee by wire transfer of immediately available funds;
(B) in the case of clause (ii) above, promptly but in no event later than three (3) Business Days after the date of such termination, pay Parent the Termination Fee by wire transfer of immediately available funds; provided that with respect to and
(C) in the case of clause (2iii) above, immediately prior to or substantially concurrently with such termination, pay Parent the Termination Fee by wire transfer of immediately available funds (it being understood that in no event shall be paid by the Company prior be required to termination of this Agreement; and provided further that with respect to clause (1) above, pay the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(con more than one occasion).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.
Appears in 1 contract
Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement shall become void and of no effect with no liability or further obligation of to any kind Person on the part of any party hereto (or of any of its directorsRepresentatives or Affiliates); provided, officershowever, employeesand notwithstanding anything in the foregoing to the contrary, agents, legal and financial advisors or other representatives), except that (i) except as otherwise provided in Section 9.01 and (ii) that herein no such termination shall relieve any party hereto of any liability to pay the Termination Fee, the Parent Expenses or damages resulting from any willful breach the Parent Fee pursuant to this Section 8.5, and (ii) this Section 8.5 and Article IX shall survive the termination of this Agreement.
(ib) The Company shall pay a termination fee, representing liquidated damages, of $9,100,000 (the “Termination Fee”) to Parent payable by wire transfer of immediately available funds to an account specified by Parent in In the event of any of the followingthat:
(1i) in (x) before obtaining the event that Company Requisite Vote, this Agreement is terminated pursuant to Section 8.2(a) (A) an Acquisition Proposal shall have been made the section relating to the Company Termination Date), or any of its stockholders or Section 8.2(b) (the section relating to failure to receive stockholder approval), (y) any Person shall have made or publicly announced a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn without qualification in a manner that would reasonably be expected to adversely affect the receipt of the Company Requisite Vote in any material respect at least ten (10) calendar days prior to, with respect to Section 8.2(a), the date of termination or, with respect to a termination pursuant to Section 8.2(b), no later than five (5) business days prior to the Stockholders Meeting and (z) within eighteen (18) months of such termination (A) the Company shall have consummated an intention Acquisition Proposal (whether or not conditional) to make an such Acquisition Proposal with respect is the same Acquisition Proposal referred to in clause (y) of this Section 8.5(b)(i)) (provided that for purposes of this clause (z) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”) or (B) the Company and its Subsidiaries, taken as a whole, shall have consummated any transaction, or any series of transactions, providing for the sale of assets (Bincluding equity securities of any Subsidiaries of the Company) thereafter for aggregate consideration (including the assumption of any Indebtedness by any purchaser of such assets) of greater than $1.0 billion;
(ii) this Agreement is terminated by either Parent or the Company pursuant to clause (xa) of Section 8.02(a) for failure 8.4 (the section relating to a Change of the Merger to be consummated by the date specified therein and such failure is the result of the knowing action or inaction of the Company or (y) Section 8.02(b)(ii) and (C) within twelve (12) months of the termination of this Agreement, the Company consummates an Acquisition Proposal;Recommendation); or
(2iii) this Agreement is terminated by the Company pursuant to Section 8.03(a); or
8.3(a) (3) this Agreement is terminated by Parent pursuant the section relating to Section 8.04(b) or Section 8.04(d).
(ii) Any Termination Fee required by this Section 8.05(b) shall be paid promptly, but in no event later than two Business Days after the date of termination; provided that with respect to clause (2) above, the Termination Fee shall be paid by the Company prior to termination of this Agreement; and provided further that with respect to clause (1) above, the Termination Fee shall be paid prior to the Company’s entering into an Alternative Acquisition Agreement or consummating, approving or recommending an Acquisition Proposal or within two Business Days following notice from Parent if the Company shall have failed to oppose such Acquisition Proposal.
(iii) Notwithstanding any Termination Fee paid to Parent, such Termination Fee shall upon payment thereof be the sole remedy for Parent with respect to any breach of any covenant or agreement giving rise to such payment, subject to Section 8.05(cAgreement).
(c) The Company acknowledges that the agreements contained in paragraph (b) above are an integral part of the transactions contemplated by this Agreement, and that without such agreements Parent would not have entered into this Agreement, and that such amounts do not constitute a penalty. If the Company fails to promptly pay Parent any amounts due under paragraph (b) above within the time period specified therein, the Company shall pay all costs and expenses (including attorneys’ fees) incurred by Parent from the date such amounts were required to be paid in connection with any action, including the filing of any lawsuit, taken to collect payment of such amounts, together with interest on the amount of any such unpaid amounts at the publicly announced prime rate of interest printed in The Wall Street Journal on the date such payment was required to be made.;
Appears in 1 contract
Samples: Merger Agreement (Dynegy Inc.)
