Effect of Termination; Termination Fees. (a) In the event of valid termination of this Agreement by either the Company or Parent as provided in Section 6.1, this Agreement shall forthwith become void and of no further force or effect and there shall be no Liability on the part of Parent, Merger Sub or the Company or their respective Subsidiaries, officers, directors, employees, agents or representatives or any of the foregoing’s successors or assigns, except that (i) Section 4.2(b) (Confidentiality), this Section 6.2 and Article VII (and all the defined terms appearing in such sections) shall survive termination and remain in full force and effect in accordance with their respective terms and conditions and (ii) subject in all respects to the limitations set forth in this Section 6.2 and Section 7.7 (Specific Performance), nothing herein shall relieve any Person from any Liabilities resulting from fraud or an Intentional Breach prior to such valid termination of this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 7.7 in lieu of terminating this Agreement pursuant to Section 6.2. (b) In the event that: (i) this Agreement is validly terminated by Parent pursuant to Section 6.1(d) or by the Company pursuant to Section 6.1(e), then the Company shall pay to Parent prior to or concurrently with such termination, in the case of a termination by the Company, or within two Business Days thereafter, in the case of a termination by Parent, a termination fee of $78.9 million (the “Termination Fee”). (ii) this Agreement is validly terminated by Parent or the Company pursuant to (x) Section 6.1(b)(i) or (y) Section 6.1(b)(ii) (but only in the case of clause (y) if, as of the time of such termination, (1) either Party is then entitled to terminate this Agreement pursuant to Section 6.1(b)(i) or (2) Parent is then entitled to terminate this Agreement pursuant to Section 6.1(f)) or by Parent pursuant to Section 6.1(f), and (A) following the Agreement Date and prior to such termination, an Acquisition Proposal shall have been publicly disclosed or shall have otherwise become publicly known and (B) within 12 months after such termination, the Company enters into a definitive Contract with respect to an Acquisition Proposal or consummates an Acquisition Proposal (which need not be the same Acquisition Proposal that was made, announced or publicly known prior to the termination of this Agreement) (provided that for all purposes of this Section 6.2(b)(ii), the term Acquisition Proposal shall have the meaning assigned to such term in Exhibit A, except that the references to “15%” shall be deemed to be references to 50%), then the Company shall pay to Parent the Termination Fee concurrently with entering into a definitive Contract or the consummation of such Acquisition Proposal. (iii) All payments under this Section 6.2(b) or Section 6.2(c) shall be made by the Company to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall the Company be required to pay the Termination Fee on more than one occasion. (c) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 6.2 are an integral part of the Transactions, (ii) without these agreements, Parent, Merger Sub and the Company would not enter into this Agreement, (iii) the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee 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 Transactions, which amount would otherwise be impossible to calculate with precision. Accordingly, if the Company fails to timely pay any amount due pursuant to this Section 6.2, and, in order to obtain such payment, Parent commences a Proceeding that results in a judgment against the Company for any amount due pursuant to this Section 6.2, then the Company shall also pay Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) in connection with such Proceeding, together with interest on the amount due pursuant to this Section 6.2 from the date such payment was required to be made until the date of payment at the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law). (d) Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is validly terminated in accordance with this Article VI and the Termination Fee is payable pursuant to Section 6.2(b) and is paid to Parent (or its designee) in accordance with this Agreement, payment of the Termination Fee shall be the sole and exclusive remedy of Parent and Merger Sub, and each of their respective Affiliates, as applicable, against the Company and each of its Affiliates, and each of their respective directors, officers, employees, stockholders, controlling Persons, agents or representatives for any liability, loss or damage based upon, arising out of or relating to this Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the Transactions or in respect of any theory of law or equity or in respect of any representations, warranties, covenants or agreements made or alleged to be made in connection herewith, whether at law or equity, in contract, in tort or otherwise (except in the case of fraud). Each of Parent and Merger Sub may pursue both a grant of specific performance in accordance with Section 7.7 and the payment of the Termination Fee under Section 6.2(b); provided that under no circumstances shall Parent or Merger Sub be permitted or entitled to receive both a grant of specific performance that results in the Closing and any money damages, including all or any portion of the Termination Fee. Acceptance of the Termination Fee shall constitute acceptance by Parent and Merger Sub of the validity of the termination of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Electronic Arts Inc.), Merger Agreement (Glu Mobile Inc)
Effect of Termination; Termination Fees. (a) In the event of valid termination of this Agreement by either the Company or Parent as provided in Section 6.1, this Agreement shall forthwith become void and of no further force or effect and there shall be no Liability on the part of Parent, Merger Sub Sub, any Lender Related Party or the Company or their respective Subsidiaries, officers, directors, employees, agents agents, equityholders or representatives representatives, or any of the foregoing’s successors other Company Related Parties or assignsParent Related Parties, except that with respect to Section 3.14 (i) Independent Investigation), Section 4.2(b) (Confidentiality), Section 4.6 (Public Announcements), this Section 6.2 and Article VII (and all the defined terms appearing in such sections) shall survive termination and remain in full force and effect in accordance with their respective terms and conditions and (ii) subject in all respects to the limitations set forth in this Section 6.2 and Section 7.7 (Specific Performance)6.2, nothing herein shall the valid termination of this Agreement will not relieve any Person from any Liabilities resulting from fraud incurred or suffered by a Party as a result of an Intentional Breach prior to such valid termination by another Party of any of its representations, warranties, covenants or other agreements set forth in this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 7.7 in lieu of terminating this Agreement pursuant to Section 6.2.
(b) In the event that:
(i) this Agreement is validly terminated by Parent pursuant to Section 6.1(d) or by the Company pursuant to Section 6.1(e), then the Company shall pay to Parent prior to or concurrently with such termination, in the case of a termination by the Company, or within two Business Days thereafter, in the case of a termination by Parent, a termination fee of $78.9 million 42,862,000 (the “Termination Fee”).
(ii) ; provided that if this Agreement is validly terminated by Parent or the Company pursuant to Section 6.1(e) after the Agreement Date and prior to the Excluded Party Deadline in a circumstance in which the Superior Proposal giving rise to the right of termination is with an Excluded Party, then such Termination Fee shall be $19,483,000.
(ii) In the event that this Agreement is validly terminated by (x) Parent or Company pursuant to Section 6.1(b)(i6.1(b), if (1) or at the final Expiration Date immediately preceding such termination all Offer Conditions other than the Minimum Tender Condition had been satisfied (y) Section 6.1(b)(ii) (other than those Offer Conditions that by their terms are to be satisfied at the Expiration Time, but only in which conditions would be capable of being satisfied if the case of clause (y) if, as of Expiration Time were the time of such termination), (12) either Party is then entitled to terminate at the time of such termination the Commitment Letter shall not have been terminated, withdrawn or rescinded and (3) in the case of termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 6.1(b)(i) 6.1(b), or (2y) Parent is then entitled to terminate this Agreement pursuant to Section 6.1(f)) or by Parent pursuant to Section 6.1(f)) as a result of an Intentional Breach by the Company, and (ii) (A) following the Agreement Date and prior to such termination, an Acquisition Proposal shall have been publicly disclosed or shall have otherwise become publicly known (and not publicly withdrawn or abandoned prior to the time of such termination) and (B) within 12 months after such termination, the Company enters into a definitive Contract with respect to consummates an Acquisition Proposal or consummates enters into an Alternate Acquisition Agreement (in each case, whether or not the Acquisition Proposal (which need not be referenced in the same preceding clause) and such Acquisition Proposal that was made, announced or publicly known prior to the termination of this Agreement) is subsequently consummated (provided that for all purposes of this Section 6.2(b)(ii), the term Acquisition Proposal shall have the meaning assigned to such term in Exhibit A, except that the references to “15%” shall be deemed to be references to 5050 %), then the Company shall pay to Parent the Termination Fee concurrently with entering into a definitive Contract or on the date no later than two Business Days after, and subject to, the consummation of such Acquisition Proposal.
(iii) All payments under this Section 6.2(b) or Section 6.2(c) shall be made by the Company to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall the Company be required to pay the Termination Fee on more than one occasion.
(c) In the event that the Company validly terminates this Agreement pursuant to Section 6.1(g) as a result of an Intentional Breach by Parent or Merger Sub or Section 6.1(h)(ii) or Parent shall terminate this Agreement pursuant to Section 6.1(b) at such time the Company could have terminated this Agreement pursuant to Section 6.1(g) as a result of an Intentional Breach by Parent or Merger Sub or Section 6.1(h)(ii), then Parent shall pay the Company a fee equal to $101,310,000) (the “Parent Termination Fee”) by wire transfer of immediately available funds within two Business Days after such termination to an account designated in writing by the Company. All payments under this Section 6.2(c) shall be made by Parent to the Company by wire transfer of immediately available funds to an account designated in writing by the Company. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion.
(d) Each of the Company, Parent and Merger Sub acknowledges that (i) the agreements contained in this Section 6.2 are an integral part of the Transactions, Transactions and (ii) without these agreements, Parent, Merger Sub and the Company would not enter into this Agreement, (iii) . In the Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate Parent in the circumstances in which such fee is payable for the efforts and resources expended and opportunities foregone while negotiating event 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 calculate with precision. Accordingly, if the Company fails to timely pay any amount due is terminated by Parent pursuant to this Section 6.2, and, in order to obtain such payment, Parent commences 6.1(f) as a Proceeding that results in a judgment against result of an Intentional Breach by the Company for any amount due pursuant to this Section 6.2Company, then the Company shall also pay reimburse Parent for its actual and reasonable and documented out-of-pocket costs and expenses in an amount not to exceed $5,000,000 (including reasonable attorneys’ fees and expenses) in connection with such Proceedingthe “Expense Reimbursement”), together with interest by wire transfer of immediately available funds on the amount due second business day following the date of such termination of this Agreement; provided, that the existence of circumstances which could require the Termination Fee (less any Expense Reimbursement previously paid to Parent by the Company) to become subsequently payable by the Company shall not relieve the Company of its obligations to pay the Expense Reimbursement pursuant to this Section; and provided, further, that the payment by the Company of the Expense Reimbursement pursuant to this Section 6.2 from 6.2(d) shall not relieve the date such payment was required Company of any subsequent obligation to be made until pay the date of payment at Termination Fee (less any Expense Reimbursement previously paid to Parent by the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable LawCompany).
(de) Notwithstanding anything to the contrary in this Agreement, (i) subject in all respect to Parent’s rights to injunction, and specific performance set forth in Section 7.7, in the event that this Agreement is validly terminated in accordance with this Article VI and the Termination Fee is payable pursuant to Section 6.2(b) and is paid to Parent (or its designee) in accordance with the provisions of this Agreement, payment of the Termination Fee shall be the sole and exclusive remedy of Parent and Merger Sub, and each of their respective Affiliates, as applicable, against the Company and each of its Affiliates, and each of their respective former, current and future directors, officers, employees, holder of any equity, stockholders, controlling Persons, Affiliates, attorneys, members, managers, general or limited partners, assignees, agents or representatives (collectively, the “Company Related Parties”) for any liability, loss or damage based upon, arising out of or relating to this Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the Transactions or in respect of any other document or theory of law or equity or in respect of any representations, warranties, covenants or agreements made or alleged to be made in connection herewithherewith or therewith, whether at law or equity, in contract, in tort or otherwise and (except ii) subject in all respect to the Company’s rights to injunction, and specific performance set forth in Section 7.7, in the case event that this Agreement is validly terminated in accordance with Article VI and the Parent Termination Fee is payable pursuant to Section 6.2(c) and is paid to the Company (or its designee) in accordance with the provisions of fraud)this Agreement, payment of the Parent Termination Fee shall be the sole and exclusive remedy of the Company and its Affiliates and the other Company Related Parties, as applicable, against Parent, Merger Sub, any Lender Related Party and each of their respective Affiliates, directors, officers, employees, stockholders, controlling Persons, agents or representatives (collectively, the “Parent Related Parties”) for any liability, loss or damage based upon, arising out of or relating to this Agreement, the negotiation, execution, performance or any actual or purported breach hereof or the Transactions or in respect of any other document or theory of law or equity or in respect of any representations, warranties, covenants or agreements made or alleged to be made in connection herewith or therewith, whether at law or equity, in contract, in tort or otherwise. Each While each of the Company, Parent and Merger Sub Sub, as applicable, may pursue both a grant of specific performance in accordance with Section 7.7 and the payment of the Termination Fee or the Parent Termination Fee, as applicable, under Section 6.2(b) or Section 6.2(c); provided that , respectively, under no circumstances shall the Company, Parent or Merger Sub Sub, as applicable, be permitted or entitled to receive both a grant of specific performance that results in the Closing and any money damages, including all or any portion of the Termination Fee or the Parent Termination Fee, as applicable. Acceptance Neither Parent nor Merger Sub shall be entitled to specific performance under Section 7.7 if this Agreement has been validly terminated in accordance with Article VI and in no event shall Parent or Merger Sub or their respective Affiliates be permitted or entitled to receive both a grant of specific performance and the Termination Fee; provided, however, and, for further clarity, in any circumstance where performance by the Company of its obligations under this Agreement would relieve the Company of its obligation to pay the Termination Fee, Parent may, in its sole discretion: (i) seek specific performance pursuant to Section 7.7, (ii) withdraw any claim for specific performance and require payment of the Termination Fee if entitled to payment of the Termination Fee under Section 6.2 or (iii) if Parent is unable for any reason to obtain specific performance, require payment of the Termination Fee if entitled to payment of the Termination Fee under Section 6.2. The Company shall constitute acceptance not be entitled to specific performance under Section 7.7 if this Agreement has been validly terminated in accordance with Article VI and in no event shall the Company or its Affiliates be permitted or entitled to receive both a grant of specific performance and the Parent Termination Fee; provided, however, and, for further clarity, in any circumstance where performance by Parent and/or Merger Sub of their obligations under this Agreement would relieve Parent of its obligation to pay the Parent Termination Fee, the Company may, in its sole discretion: (i) seek specific performance pursuant to Section 7.7, (ii) withdraw any claim for specific performance and require payment of the Parent Termination Fee if entitled to payment of the Parent Termination Fee under Section 6.2, or (iii) if the Company is unable for any reason to obtain specific performance, require payment of the Parent Termination Fee if entitled to payment of the Parent Termination Fee under Section 6.2.
(f) Notwithstanding anything to the contrary in this Agreement, in no event shall (i) any Parent Related Party have any liability for monetary damages to the Company or its Subsidiaries or any other Company Related Party (whether at law, in contract, in tort or otherwise) relating to or arising out of this Agreement or the Transactions, other than Sponsor’s obligations under the Limited Guarantee and the Equity Commitment Letter and other than the obligations of Parent and Merger Sub as provided herein, or (ii) any former, current or future general or limited partners, equity holders, directors, officers, employees, managers, members, Affiliates or agents of the validity Company or any of its Subsidiaries have any liability to Sponsor, Parent or Merger Sub or any Parent Related Party for monetary damages (whether at law, in contract, in tort or otherwise) relating to or arising out of this Agreement or the Transactions. In no event shall the Company seek or obtain, nor shall it permit any of its Representatives to seek or obtain, nor shall any Person be entitled to seek or obtain, any monetary recovery or monetary award against any Parent Related Party with respect to, this Agreement, the Equity Commitment Letter or the Limited Guarantee or the transactions contemplated hereby and thereby (including, any breach by Sponsor, Parent or Merger Sub), the termination of this Agreement, the failure to consummate the Transactions or any claims or actions under applicable Law arising out of any such breach, termination or failure, other than from Parent or Merger Sub to the extent expressly provided for in this Agreement or Sponsor to the extent expressly provided for in the Limited Guarantee or the Equity Commitment Letter.
(g) Notwithstanding anything to the contrary in this Agreement, in no event shall the Company Related Parties be entitled to monetary recovery, award or fees in excess of the amount of $101,310,000 in the aggregate (the “Parent Liability Limitation”) for, or with respect to, this Agreement, the Equity Commitment Letter or the Limited Guarantee or the transactions contemplated hereby and thereby (including, any breach by Sponsor, Parent or Merger Sub), the termination of this Agreement in accordance with its terms, the failure to consummate the Transactions or any claims or actions under applicable Law arising out of any such breach, termination or failure. In no event shall the Company Related Parties seek or obtain, nor shall they permit any of the Company Representatives or any other Person on their behalf to seek or obtain, nor shall any Person be entitled to seek or obtain, any monetary recovery, award or fees in excess of the Parent Liability Limitation against the Parent Related Parties, and in no event shall the Company or any of its Subsidiaries be entitled to seek or obtain any monetary recovery, award or fees of any kind in excess of the Parent Liability Limitation against the Parent Related Parties, including consequential, special, indirect or punitive damages for, or with respect to, this Agreement, the Equity Commitment Letter or the Limited Guarantee or the transactions contemplated hereby and thereby (including, any breach by Sponsor, Parent or Purchaser), the termination of this Agreement, the failure to consummate the transactions contemplated by this Agreement or any claims or actions under applicable Law arising out of any such breach, termination or failure.
(h) Notwithstanding anything to the contrary in this Agreement, in no event shall the Parent Related Parties be entitled to monetary recovery, award or fees in excess of the amount of $42,862,000 in the aggregate (the “Company Liability Limitation”) for, or with respect to, this Agreement or the Transactions, the termination of this Agreement in accordance with its terms, the failure to consummate the Transactions or any claims or actions under applicable Law arising out of any such breach, termination or failure. In no event shall the Parent Related Parties seek or obtain, nor shall they permit any of the Parent Representatives or any other Person on their behalf to seek or obtain, nor shall any Person be entitled to seek or obtain, any monetary recovery, award or fees in excess of the Company Liability Limitation against the Company Related Parties, and in no event shall Parent or any of its Subsidiaries be entitled to seek or obtain any monetary recovery, award or fees of any kind in excess of the Company Liability Limitation against the Company Related Parties, including consequential, special, indirect or punitive damages for, or with respect to, this Agreement or the transactions contemplated hereby, the termination of this Agreement, the failure to consummate the Transactions or any claims or actions under applicable Law arising out of any such breach, termination or failure.
Appears in 1 contract
Samples: Merger Agreement (Infoblox Inc)
Effect of Termination; Termination Fees. (a) In the event of valid termination of this Agreement by either the Company or Parent as provided in Section 6.1, this Agreement shall forthwith become void and of no further force or effect and there shall be no Liability on the part of Parent, Merger Sub Subs or the Company or their respective Subsidiaries, officers, directors, employees, agents or representatives or any of the foregoing’s successors or assigns, except that (i) with respect to Section 4.2(b4.3(b) (Confidentiality), Section 4.11 (Public Announcements), this Section 6.2 and Article VII (and all the defined terms appearing in such sections) shall survive termination and remain in full force and effect in accordance with their respective terms and conditions 7 and (ii) subject in all respects with respect to the limitations any Liabilities incurred or suffered by a Party as a result of an Intentional Breach by another Party of any of its representations, warranties, covenants or other agreements set forth in this Section 6.2 and Section 7.7 (Specific Performance)Agreement, nothing herein shall relieve any Person or from any Liabilities resulting from fraud obligation to pay the Termination Fee, Parent Termination Fee, Regulatory Termination Fee or an Intentional Breach prior to such valid termination of this Agreement. Nothing shall limit or prevent any Party from exercising any rights or remedies it may have under Section 7.7 in lieu of terminating this Agreement Financing Termination Fee pursuant to this Section 6.2.
(b) In the event that:
that this Agreement is terminated (i) this Agreement is validly terminated by Parent pursuant to Section 6.1(d6.1(e), (ii) or by the Company pursuant to Section 6.1(g) or (iii) pursuant to Section 6.1(d)(i) at a time when Parent has a right to terminate pursuant to Section 6.1(e), then the Company shall pay to Parent prior to or concurrently with such termination, termination in the case of a termination by the Company, or within two Business Days thereafter, thereafter in the case of a termination by Parent, a termination fee of $78.9 million (the “Termination Fee”).
(c) In the event that this Agreement is terminated (i) by the Company pursuant to Section 6.1(f), (ii) by Parent pursuant to Section 6.1(h), or (iii) pursuant to Section 6.1(d)(ii) at a time when the Company has a right to terminate pursuant to Section 6.1(f), then Parent shall pay to the Company concurrently with such termination in the case of a termination by Parent, or within two Business Days thereafter in the case of a termination by the Company, the Parent Termination Fee.
(d) In the event that (i) this Agreement is validly terminated by Parent or the Company pursuant to (x) Section 6.1(b)(i6.1(b) or (y) Section 6.1(b)(ii) (but only in the case of clause (y) if, as of the time of such termination, (1) either Party is then entitled to terminate this Agreement pursuant to Section 6.1(b)(i) or (2) Parent is then entitled to terminate this Agreement pursuant to Section 6.1(f)) or by Parent pursuant to Section 6.1(f6.1(d)(i), and (Aii) following the Agreement Date and prior to the date of such terminationtermination of this Agreement, an a bona fide Acquisition Proposal shall have been publicly disclosed made to the Company or any of its Subsidiaries or shall have otherwise become been made directly to the Company Stockholders generally or any Person shall have publicly known announced (and not publicly withdrawn prior to such termination) an intention (whether or not conditional) to make a bona fide Acquisition Proposal with respect to the Company, and (Biii) within 12 months after such termination, the Company either (1) consummates any transaction contemplated by the definition of Acquisition Proposal or (2) enters into a definitive Contract agreement with respect to an any transaction contemplated by the definition of Acquisition Proposal or and subsequently consummates an Acquisition Proposal (which need not be the same Acquisition Proposal that was madesuch transaction, announced or publicly known prior to the termination of this Agreement) even if such transaction is consummated after such 12-month period (provided that for all purposes of this Section 6.2(b)(ii6.2(d), the term Acquisition Proposal shall have the meaning assigned to such term in Exhibit A, except that the references to “15%” shall be deemed to be references to 50%), then the Company shall pay to Parent the Termination Fee concurrently with entering into a definitive Contract or on the date no later than two Business Days after the consummation of such Acquisition Proposal.
(e) In the event that (i) this Agreement is terminated by Parent or the Company pursuant to Section 6.1(b) or Section 6.1(d)(ii), and (ii) prior to the date of such termination of this Agreement, a bona fide Parent Acquisition Proposal shall have been made to Parent or any of its Subsidiaries or shall have been made directly to the Parent Stockholders generally or any Person shall have publicly announced (and not publicly withdrawn prior to such termination) an intention (whether or not conditional) to make a bona fide Parent Acquisition Proposal with respect to Parent, and (iii) within 12 months after such termination, Parent either (1) consummates any transaction contemplated by the definition of Parent Acquisition Proposal or (2) enters into a definitive agreement with respect to any transaction contemplated by the definition of Parent Acquisition Proposal and subsequently consummates such transaction, even if after such 12-month period, then Parent shall pay to the Company the Parent Termination Fee on the date no later than two Business Days after the consummation of such Parent Acquisition Proposal.
(f) In the event that this Agreement is terminated by Parent or the Company pursuant to either Section 6.1(b) or Section 6.1(c) and at such time either of the conditions set forth in Section 5.1(c) or Section 5.1(d) (but only with respect to any Order or restraint relating to Antitrust Laws) of this Agreement have not been satisfied, then Parent shall pay to the Company the Regulatory Termination Fee on the date no later than two Business Days following such termination.
(g) In the event that (i) this Agreement is terminated by Parent or the Company pursuant to either Section 6.1(b) and at such time all of the conditions set forth in Article 5 have been satisfied or waived (other than those conditions that by their terms are to be satisfied by actions taken at the Closing or are within the control of Parent (including Section 5.1(f)) and Parent does not then have readily available the Required Amount, or Parent and Merger Subs otherwise fail to consummate the transactions contemplated by this Agreement on the date the Closing should have occurred pursuant to Section 1.3, or (ii) this Agreement is otherwise terminated by Parent or the Company at a time at which the Company could terminate this Agreement under circumstances described in clause (iii) of this Section 6.2(g), or (iii) this Agreement is terminated by the Company pursuant to Section 6.1(j) as a result of a breach by Parent of Section 3.15 or Section 4.9, then Parent shall pay to the Company the Financing Termination Fee on the date no later than two Business Days following such termination.
(h) All payments under this Section 6.2(b) or Section 6.2(c) 6.2 shall be made by the Company to Parent by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall Parent or the Company be required to pay the Termination Fee on more than one occasionCompany, as applicable.
(ci) Each of the Company, Parent and Merger Sub Subs acknowledges that (i) the agreements contained in this Section 6.2 are an integral part of the Transactions, (ii) without these agreements, Parent, Merger Sub Subs and the Company would not enter into this Agreement, and (iii) none of the Parent Termination Fee, Regulatory Termination Fee, Financing Termination Fee or Termination Fee is not a penalty, but is liquidated damages, rather constitute damages in a reasonable amount that will will, subject to Section 6.2(j), compensate Parent or the Company, as applicable, in the circumstances in which such fee Parent Termination Fee, Regulatory Termination Fee, Financing Termination Fee or Termination Fee 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 Transactions, which amount would otherwise be impossible to calculate with precisionpayable. Accordingly, if the Company a Party fails to pay in a timely pay any amount due pursuant to this Section 6.2manner the Parent Termination Fee, Regulatory Termination Fee, Financing Termination Fee or the Termination Fee, as applicable, and, in order to obtain such payment, Parent commences the Party to receive such fee makes a Proceeding claim that results in a judgment against for the Company for any amount due pursuant to set forth in this Section 6.2, then the Company Party paying such fee shall also pay Parent to the Party receiving such fee its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expensescosts of counsel) in connection with such Proceedingsuit, together with interest on the amount due pursuant to set forth in this Section 6.2 at the prime rate of Bank of America, N.A. in effect from time to time from the date such payment was required to be made until the date of payment at the annual rate of two percent (2%) plus the prime lending rate as published in The Wall Street Journal in effect on the date such payment was required to be made (or such lesser rate as is the maximum permitted by applicable Law).hereunder
(dj) Notwithstanding anything to the contrary in this Agreement, in the event that this Agreement is validly terminated as described in accordance with this Article VI Section 6.2(g) and the Financing Termination Fee is payable pursuant to Section 6.2(b) and is paid to Parent the Company (or its designee) in accordance with the provisions of this Agreement, the Company shall have the right, exercisable by written notice to Parent within two Business Day after receipt of payment of the such Financing Termination Fee, to refund such Financing Termination Fee to Parent, and in the event that Parent receives a full refund of the Financing Termination Fee within two Business Day after the delivery of such notice, the Company shall be entitled to all remedies available to it pursuant to Section 6.2(a) and Section 7.7. If, after receiving a Financing Termination Fee, the sole Company fails to exercise its right to refund the Financing Termination Fee in accordance with the time periods provided for in this Section 6.2(j), the Company shall be deemed to have irrevocably waived such right and exclusive remedy of Parent and Merger Sub, its agents and each of their respective Affiliates, as applicable, against representatives shall have no further liability to the Company and each of its Affiliates, and each of their respective directors, officers, employees, stockholders, controlling Persons, agents or representatives for any liability, loss or damage based upon, arising out of or relating to or under this Agreement, or with respect to the negotiation, execution, performance or any actual or purported breach hereof or the Transactions Transactions, or in respect of any other document or theory of law or equity equity, or in respect of any representations, warranties, covenants or and agreements made or alleged to be made in connection herewithherewith or therewith, whether at law or equity, in contract, in tort or otherwise (otherwise, except as set forth in the case of fraudSection 6.2(a)(i). Each of In no event shall any Party be required to pay the Parent and Merger Sub may pursue both a grant of specific performance in accordance with Section 7.7 and Termination Fee, the payment of Regulatory Termination Fee, Financing Termination Fee or the Termination Fee under Section 6.2(b); provided that under no circumstances shall Parent or Merger Sub be permitted or entitled to receive both a grant of specific performance that results in the Closing and any money damages, including all or any portion of the Termination Fee. Acceptance of the Termination Fee shall constitute acceptance by Parent and Merger Sub of the validity of the termination of this Agreementon more than one occasion.
Appears in 1 contract
Samples: Merger Agreement (Diamond Foods Inc)
