Expenses and Other Payments. (a) Except as otherwise provided in this Agreement (including payment of the Transaction Expense Fee), each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 4 contracts

Samples: Transaction Support Agreement (Bonanza Creek Energy, Inc.), Merger Agreement (HighPoint Resources Corp), Merger Agreement (Bonanza Creek Energy, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the ~~Merger~~ Mergers shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act in connection with the ~~Merger~~ Mergers shall be borne ~~equally~~ by ~~Parent and the Company~~Parent. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If ~~(i)~~ the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(d)(i) (Parent Change of Recommendation~~), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If ~~either~~ the Company ~~or Parent~~ terminates this Agreement pursuant to ~~(i)~~ Section ~~8.1(b)(iv)(A~~8.1(d)(ii) (~~Failure to Obtain~~ Company ~~Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Superior Proposal), then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds to an account designated by Parent ~~Expenses or~~ concurrently with the termination of this Agreement. (iie) If Parent terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(c)(ii) (~~Failure to Obtain~~ Parent ~~Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3~~Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company ~~Expenses in each case, no later than three (3) Business Days after notice of~~ concurrently with the termination of this Agreement. (ef) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such ~~termination~~ termination, a Company Competing Proposal shall have been publicly announced or publicly disclosed ~~and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting~~ or (B) (1) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or (2) Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and, in the case of each of clauses (1) and (2), following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months ~~after~~ of the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee ~~less any amount previously paid by~~ within three (3) Business Days after the earlier to occur of (x) the consummation of such Company ~~pursuant~~ Competing Proposal or (y) entering into a definitive agreement relating to ~~Section 8.3(d)(i)~~a Company Competing Proposal. For purposes of this Section ~~8.3(e~~8.3(f), any reference in the definition of Company Competing Proposal to “1520% or more” and “at least 20%” shall be deemed to be a reference to “more than 8050%”. (fg) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such ~~termination~~ termination, a Parent Competing Proposal shall have been publicly announced or publicly disclosed ~~and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting~~ or (B) (1) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or (2) the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and, in the case of each of clauses (1) and (2), following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months ~~after~~ of the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee ~~less any amount previously paid by~~ within three (3) Business Days after the earlier to occur of (x) the consummation of such Parent ~~pursuant~~ Competing Proposal or (y) entering into a definitive agreement relating to ~~Section 8.3(d)~~a Parent Competing Proposal. For purposes of this Section ~~8.3(f~~8.3(g), any reference in the definition of Parent Competing Proposal to “1520% or more” and “at least 20%” shall be deemed to be a reference to “more than 8050%”. (gh) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval), then the Company shall pay Parent the Parent Expenses. (i) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), then Parent shall pay the Company the Company Expenses. (j) In no event shall Parent or the Company, respectively, be entitled to receive more than one payment of the Company Termination Fee or ~~more than one payment of~~ Parent ~~Expenses. If Parent receives the Company~~ Termination Fee, ~~then Parent will not be entitled~~ as applicable. Notwithstanding anything in this Agreement to ~~also receive a~~ the contrary, the payment of the Parent ~~Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment~~ Expenses or of the Company ~~Termination Fee~~Expenses shall not relieve the Company or Parent, ~~then the amount~~ respectively, of any subsequent obligation to pay the Company Termination Fee ~~payable~~ pursuant to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of Section 8.3(b), Section 8.3(d) or Section 8.3(f) or the Parent Termination Fee pursuant to Section 8.3(c), Section 8.3(e) or ~~more than one payment of Company Expenses. If the Company receives the Parent Termination Fee~~Section 8.3(g), ~~then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses~~as applicable; provided, ~~and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to~~ that the Company shall be ~~reduced~~ entitled to credit any prior Parent Expenses actually paid by the Company ~~Expenses. If Parent is~~ against the amount of any Company Termination Fee required to ~~pay~~ be paid pursuant to Section 8.3(b), Section 8.3(d) or Section 8.3(f) and Parent shall be entitled to credit any prior Company Expenses actually paid by Parent against the ~~Company the~~ amount of any Parent Termination ~~Fee~~Fee required to be paid pursuant to Section 8.3(c), ~~then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee~~Section 8.3(e) or Section 8.3(g). The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section ~~9.11~~ 9.10 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against the Parent ~~and Merger Sub~~ Parties and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of any of the ~~Merger~~ Mergers to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Parent ~~and Merger Sub~~ Parties shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Parent ~~or Merger Sub~~ Parties or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Parent Parties in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and ~~Merger Sub~~ its Subsidiaries against the Company ~~and its Subsidiaries~~ Parties and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of any of the ~~Merger~~ Mergers to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company Parties shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company ~~and its Subsidiaries~~ Parties or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company Parties in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 4 contracts

Samples: Merger Agreement (Earthstone Energy Inc), Merger Agreement (Earthstone Energy Inc), Merger Agreement (Permian Resources Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each ~~Party~~ party hereto shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section ~~8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~7.1(c) or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii) the Company terminates this Agreement pursuant to Section 7.1(d), then the Company shall pay Parent a fee of $225 million plus the Reimbursement Amount, in cash, by wire transfer of immediately available funds to an account designated by Parent. If the fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid on the date of termination of this Agreement. (c) If either Parent or the Company terminates this Agreement pursuant to clause (B) of Section 7.1(b)(i) and (i) (x) at the time of the stockholders’ meeting there shall have been publicly announced a bona fide Competing Proposal (provided, that any reference in the definition of Competing Proposal to 25% shall be deemed to be a reference to 50.1% for the purposes of this clause (x)) that shall have not been withdrawn at least five Business Days prior to the date of the stockholders meeting or (y) at the time of the stockholders’ meeting less than 50.1% of the total issued and outstanding voting power of the Company Common Stock shall be contractually committed (whether pursuant to the Voting Agreements or another similar voting agreement with Parent) to vote in favor of the adoption of this Agreement and the Merger and (ii) within 12 months after the date of such stockholders’ meeting, the Company enters into a definitive agreement with respect to or consummates a Competing Proposal, then at the closing or other consummation of such Competing Proposal the Company shall pay Parent (I) under the circumstances in the foregoing clause (x), a fee of $225 million plus the Reimbursement Amount or (II) under the circumstances in the foregoing clause (y), the Reimbursement Amount, in either case in cash, by wire transfer of immediately available funds to an account designated by Parent. (d) If (i) either Parent or the Company terminates this Agreement pursuant to Section ~~8.1(h)(i~~7.1(b)(i)(A) and at that time there exists any Antitrust Prohibition, (ii) either Parent or the Company terminates this Agreement pursuant to Section 7.1(b)(ii) including if the Board of Directors of the Company determines not to extend the Termination Date pursuant to the third proviso of ~~Support~~Section 7.1(b)(ii) and (A) the condition specified in Section 6.1(b) has not been satisfied or (B) there exists any Antitrust Prohibition, (iii) the Company terminates this Agreement pursuant to Section ~~8.1(e~~7.1(b)(iii) as a result of a breach by Parent or Merger Sub of Section 5.4 or Section 5.12, or (iv) the Company ~~Superior Proposal~~terminates this Agreement pursuant to Section 7.1(e), then Parent shall pay to the Company ~~shall pay Parent the Company Termination Fee, in each case,~~ a fee of $325 million in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ the Company. If the fee shall be payable pursuant to the immediately preceding sentence as a result of a termination of this Agreement by the Company, the fee shall be paid no later than three (3) Business Days after notice of termination of this Agreement~~. (c) If (i)~~ , and if the ~~Company terminates~~ fee shall be payable pursuant to the immediately preceding sentence as a result of a termination of this Agreement ~~pursuant to Section 8.1(d) (Parent Change of Recommendation)~~by Parent, ~~or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent~~ the fee shall ~~pay~~ be paid on the ~~Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice~~ date of termination of this Agreement~~. (d)~~ . If ~~either~~ Parent does not pay the ~~Company or Parent terminates this Agreement pursuant~~ fee required to ~~(i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company~~ be paid pursuant to this Section ~~8.3, then~~ 7.3(d) when due and the Company ~~shall pay~~ provides notice to Parent ~~the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation~~ that such fee is due and ~~the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3~~payable, then Parent shall, not later than two Business Days thereafter, (I) draw from the Financing (or Alternate Financing) an amount not less than $325 million and cause such funds to be held in an escrow account pursuant to the terms of the Commitment Letter (or New Commitment Letter, as applicable) or (II) ensure that the commitment contemplated by the Commitment Letter (or New Commitment Letter, as applicable) shall ~~pay~~ have been extended, in either case until such time as such amount is paid or either (x) a court of competent jurisdiction determines in a final, non-appealable decision that no such amount will be due and payable or (y) Parent and the Company ~~the Company Expenses in each case,~~ mutually agree that no ~~later than three (3) Business Days after notice of termination of this Agreement~~such fee will be due and payable. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent ~~be entitled to receive more than one payment of the Company Termination Fee~~ or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of a termination fee in addition to the ~~Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a~~ payment of the ~~Company Expenses. If the Company receives payment of Company Expenses,~~ Reimbursement Amount. (f) The parties acknowledge and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section ~~8.3~~ 7.3 are an integral part of the ~~Transactions~~transactions contemplated by this Agreement, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~7.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a ~~Proceeding~~ suit that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable ~~out-of-pocket~~ costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such ~~Proceeding~~suit. ~~The Parties~~ Each of the parties hereto further acknowledges that neither the payment of the amounts by the Company specified in Section 7.3(b) or Section 7.3(c) nor the payment of the amounts by Parent specified in Section 7.3(d) is a penalty, but in each case is liquidated damages in a reasonable amount that will compensate Parent and Merger Sub or the Company, as the case may be, in the circumstances in which such fees are payable and which do not involve fraud or a knowing or intentional breach as described in Section 7.2(b) for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary in this Agreement, the parties agree that the monetary remedies set forth in this Section ~~8.3,~~ 7.3 and in Section ~~6.24(h)~~ 7.4 and the specific performance remedies set forth in Section ~~9.11~~ 8.11 shall be the sole and exclusive remedies of (iA) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future general or limited partners, stockholders, managers, employees, representatives, members, directors, officers, ~~shareholders, Representatives~~ Affiliates or ~~Affiliates~~ agents for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or ~~a Willful and Material Breach of any covenant, agreement or obligation (in which case only~~ with respect to Parent and Merger Sub ~~shall be liable for damages for such fraud or Willful~~ only, a knowing and ~~Material Breach~~intentional breach as described in Section 7.2(b), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future general or limited partners, stockholders, managers, employees, representatives, members, directors, officers, ~~shareholders, Representatives~~ Affiliates or ~~Affiliates~~ agents shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions,~~ transactions contemplated hereby except ~~for the liability of Parent~~ in the case of fraud or or, with respect to Parent and Merger Sub only, a ~~Willful~~ knowing and ~~Material Breach of any covenant, agreement or obligation~~intentional breach as described in Section 7.2(b); and (iiB) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future stockholders, managers, employees, representatives, members, directors, officers, ~~shareholders, Representatives~~ Affiliates or ~~Affiliates~~ agents for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or ~~a Willful and Material Breach of any covenant, agreement or obligation (in which case only~~ with respect to the Company ~~shall be liable for damages for such fraud or Willful~~ and ~~Material Breach)~~its Subsidiaries, a knowing and intentional breach as described in Section 7.2(b) but subject to the terms of Section 8.10, and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future stockholders, managers, employees, representatives, members, directors, officers, ~~shareholders, Representatives~~ Affiliates or ~~Affiliates~~ agents shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions,~~ transactions contemplated hereby except ~~for the liability of the Company~~ in the case of fraud or, with respect to the Company and its Subsidiaries, a knowing and intentional breach as described in Section 7.2(b) but subject to the terms of Section 8.10. (g) In the event that Parent or the Company terminates this Agreement pursuant to Section 7.1(b)(iii), then in the event that such termination arises from a ~~Willful~~ willful or intentional action by the breaching party, the breaching party shall pay to the terminating party an amount equal to the Reimbursement Amount, not later than three Business Days following the date of termination; provided, that, notwithstanding the foregoing, in no event shall any payment be made by Parent pursuant to this Section 7.3(g) in the event that Parent is obligated to, or does, make the payment to the Company contemplated by Section 7.3(d). (h) Except as provided in paragraphs (c) and ~~Material Breach of any covenant~~(g) above, ~~agreement or obligation~~the Reimbursement Amount shall not be repayable by the Company to Parent.

Appears in 3 contracts

Samples: Merger Agreement, Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated; provided, ~~except~~ however, that ~~all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by~~ Parent and the ~~Company~~Company shall each be responsible for the payment of 50% of the HSR filing fee applicable to the Merger. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), (ii) the Company terminates this Agreement pursuant to Section ~~8.1(h)(iii~~8.1(d) (~~Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan~~Company Superior Proposal), or (iiiii) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(h)(i~~8.1(b)(ii) (~~Termination of Support~~Outside Date) or Section 8.1(b)(iv) (~~iii~~Failure to Obtain Company Stockholder Approval) ~~the Company terminates~~ at a time when Parent would have been entitled to terminate this Agreement pursuant to Section ~~8.1(e~~8.1(c) (Company ~~Superior Proposal~~Change of Recommendation), then the Company shall pay Parent the Company Termination Fee, in ~~each case~~the case of termination pursuant to Section 8.1(d), as provided in Section 8.1(d)(iii), and in such other cases, in cash or by wire transfer of immediately available funds to an account designated by Parent ~~no later than~~ within three (3) Business Days ~~after notice~~ of ~~termination of this Agreement~~such termination. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval~~ Approval) or ~~Confirmation Order~~pursuant to Section 8.1(b)(ii) (Outside Date) at any time when this Agreement could have been terminated pursuant to Section 8.1(b)(iv) (Failure to Obtain Company Stockholder Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn ~~without qualification~~ at least ~~seven~~ five (75) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been ~~announced,~~ publicly announced or disclosed ~~or otherwise communicated to the Company Board~~ and not withdrawn ~~without qualification~~ at least ~~seven~~ five (75) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee ~~less any amount previously paid by~~ within three (3) Business Days after the earlier of the consummation of such Company ~~pursuant~~ Competing Transaction or entering into a definitive agreement relating to ~~Section 8.3(d)(i)~~a Company Competing Transaction. ~~For purposes of this Section 8.3(e~~It is understood and agreed that with respect to the preceding clause (i) and (ii), any reference in the definition of Company Competing Proposal to “1525%” shall be deemed to be a reference to “~~more than 80~~50%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). ~~For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g)~~ In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and the Merger ~~Sub~~ Subs and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and the Merger ~~Sub~~ Subs shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of ~~Parent~~ Parent, Merger Sub Inc. or Merger Sub LLC or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and the Merger ~~Sub~~ Subs against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 3 contracts

Samples: Merger Agreement (Chesapeake Energy Corp), Merger Agreement (Chesapeake Energy Corp), Merger Agreement (Vine Energy Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation~~), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~) or Section ~~8.1(h)(iv~~8.1(d) (~~Withdrawal of Prepackaged Plan), (ii) Parent or~~ No Solicitation by the ~~Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal~~Company), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement~~. (c)~~ . If ~~(i)~~ the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(e) (~~Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent~~ Company Superior Proposal), then ~~Parent~~ the Company shall pay Parent the Company ~~the Parent~~ Termination Fee in cash by wire transfer of immediately available funds prior to ~~an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement~~or concurrently with such termination. (dc) If either the Company or Parent terminates this Agreement pursuant to ~~(i)~~ Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Approval), then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this AgreementExpenses. (ed) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(c). ~~For purposes of this Section 8.3(e~~It is understood and agreed that (1) with respect to the preceding clause (ii), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “~~more than 80~~50%”. , (f2) If with respect to the preceding clause (i~~) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval~~), ~~and on or before the date of any such termination~~ a ~~Parent~~ Company Competing Proposal ~~shall~~ will not be deemed to have been “publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of withdrawn” by any ~~such termination a Parent Competing Proposal shall have been announced~~Person if, ~~disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii)~~ within twelve (12) months ~~after~~ of the ~~date~~ termination of ~~such termination~~the Agreement, ~~Parent enters~~ the Company or any of its Subsidiaries will have entered into a definitive agreement with respect ~~to a Parent Competing Proposal (~~to, or ~~publicly approves~~ will have consummated, or ~~recommends~~ will have approved or recommended to the stockholders of ~~Parent~~ the Company or otherwise ~~does~~ not ~~oppose~~opposed, in the case of a tender offer or exchange offer, a ~~Parent~~ Company Competing ~~Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For~~ Proposal (as defined for purposes of ~~this Section 8.3(f~~the preceding clause (i), ) made by or on behalf of such Person or any ~~reference in the definition~~ of ~~Parent~~ its Affiliates and (3) any Company Competing Proposal made prior to ~~“15%” shall~~ the execution of this Agreement will be deemed to ~~be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of~~ have been made following the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms execution of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) if the Company ~~and~~ breaches its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligationobligations under Section 6.3 with respect thereto.

Appears in 3 contracts

Samples: Merger Agreement (Marathon Oil Corp), Merger Agreement (Marathon Oil Corp), Merger Agreement (Conocophillips)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the ~~Merger~~ Mergers shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act in connection with the ~~Merger~~ Mergers shall be borne equally by ~~Parent~~ Ohm and ~~the Company~~Firefly. (b) If ~~(i) Parent~~ Ohm terminates this Agreement pursuant to Section 8.1(c) (~~Company~~ Firefly Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then ~~the Company~~ Firefly shall pay ~~Parent~~ Ohm the ~~Company~~ Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Ohm no later than three (3) Business Days after notice of termination of this Agreement. (c) If ~~(i) the Company~~ Firefly terminates this Agreement pursuant to Section 8.1(d) ), (~~Parent~~ Ohm Change of Recommendation), ~~or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal),~~ then ~~Parent~~ Ohm shall pay Firefly the ~~Company the Parent~~ Termination Fee in cash by wire transfer of immediately available funds to an account designated by ~~the Company~~ Firefly no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) ~~Parent~~ Ohm or ~~the Company~~ Firefly terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain ~~Company~~ Firefly Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a ~~Company~~ Firefly Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the ~~Company~~ Firefly Stockholders Meeting or (B) ~~the Company~~ Firefly terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when ~~Parent~~ Ohm would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (~~Company~~ Firefly Terminable Breach) or ~~Parent~~ Ohm terminates this Agreement pursuant to Section 8.1(b)(iii) (~~Company~~ Firefly Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a ~~Company~~ Firefly Competing Proposal shall have been announced, disclosed or otherwise communicated to the ~~Company~~ Firefly Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, ~~the Company~~ Firefly enters into a definitive agreement with respect to a ~~Company~~ Firefly Competing Proposal (or publicly approves or recommends to the stockholders of ~~the Company~~ Firefly or otherwise does not oppose, in the case of a tender or exchange offer, a ~~Company~~ Firefly Competing Proposal) or consummates a ~~Company~~ Firefly Competing Proposal, then ~~the Company~~ Firefly shall pay ~~Parent~~ Ohm the ~~Company~~ Termination Fee ~~less any amount previously paid by~~ within three (3) Business Days after the ~~Company pursuant~~ earlier to ~~Section 8.3(d)(i)~~occur of (x) the consummation of such Firefly Competing Proposal or (y) entering into a definitive agreement relating to a Firefly Competing Proposal. For purposes of this Section ~~8.3(e~~8.3(d), any reference in the definition of ~~Company~~ Firefly Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (fe) If (i) (A) ~~Parent~~ Ohm or ~~the Company~~ Firefly terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain ~~Parent~~ Ohm Stockholder Approval), and on or before the date of any such termination ~~a Parent~~ an Ohm Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the ~~Parent~~ Ohm Stockholders Meeting or (B) ~~Parent~~ Ohm terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when ~~the Company~~ Firefly would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (~~Parent~~ Ohm Terminable Breach) or ~~the Company~~ Firefly terminates this Agreement pursuant to Section 8.1(b)(iii) (~~Parent~~ Ohm Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination ~~a Parent~~ an Ohm Competing Proposal shall have been announced, disclosed or otherwise communicated to the ~~Parent~~ Ohm Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, ~~Parent~~ Ohm enters into a definitive agreement with respect to ~~a Parent~~ an Ohm Competing Proposal (or publicly approves or recommends to the stockholders of ~~Parent~~ Ohm or otherwise does not oppose, in the case of a tender or exchange offer, ~~a Parent~~ an Ohm Competing Proposal) or consummates ~~a Parent~~ an Ohm Competing Proposal, then ~~Parent~~ Ohm shall pay Firefly the ~~Company the Parent~~ Termination Fee ~~less any amount previously paid by Parent pursuant~~ within three (3) Business Days after the earlier to ~~Section 8.3(d)~~occur of (x) the consummation of such Ohm Competing Proposal or (y) entering into a definitive agreement relating to a Ohm Competing Proposal. For purposes of this Section ~~8.3(f~~8.3(e), any reference in the definition of ~~Parent~~ Ohm Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (gf) In no event shall ~~Parent~~ Ohm or Firefly, respectively, be entitled to receive more than one payment of the ~~Company~~ Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section ~~9.11~~ 9.10 shall be the sole and exclusive remedies of (i) ~~the Company~~ Firefly and its Subsidiaries against ~~Parent~~ Ohm, Merger Sub and ~~Merger~~ LLC Sub and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of any of the ~~Merger~~ Mergers to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only ~~Parent~~ Ohm, Merger Sub and ~~Merger~~ LLC Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of ~~Parent~~ Ohm, Merger Sub or ~~Merger~~ LLC Sub or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of ~~Parent~~ Ohm in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) ~~Parent and~~ Ohm, Merger Sub and LLC Sub against ~~the Company~~ Firefly and its Subsidiaries and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of any of the ~~Merger~~ Mergers to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only ~~the Company~~ Firefly shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of ~~the Company~~ Firefly and its Subsidiaries or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of ~~the Company~~ Firefly in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 3 contracts

Samples: Merger Agreement (Whiting Petroleum Corp), Merger Agreement (Oasis Petroleum Inc.), Merger Agreement (Oasis Petroleum Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (~~iii~~ii) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (~~Company~~ Superior Proposal), then the Company shall pay Parent the Company Termination ~~Fee~~Fee (in the form of either, ~~in each case, in~~ at the election of the Company: (x) cash by wire transfer of immediately available funds to an account designated by Parent and/or (y) Bitcoin to a Bitcoin wallet designated by Parent). If the fee is payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three (3) Business Days after ~~notice~~ the termination of this Agreement, and if the fee is payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a ~~Company~~ Competing Proposal shall have been publicly announced or publicly disclosed and not been ~~publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such terminationMeeting, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a ~~Company~~ Competing Proposal or consummates a Competing Proposal (in each case, whether or ~~publicly approves or recommends~~ not such Competing Proposal is the same Competing Proposal referred to ~~the stockholders of the Company or otherwise does not oppose,~~ in ~~the case of a tender or exchange offer, a Company Competing Proposal~~clause (i) ~~or consummates a Company Competing Proposal~~above), then the Company shall pay Parent the Company Termination Fee ~~less any amount previously paid~~ (in the form of either, at the election of the Company: (x) cash by wire transfer of immediately available funds to an account designated by Parent and/or (y) Bitcoin to a Bitcoin wallet designated by Parent) no later than three (3) Business Days after the ~~Company pursuant~~ earlier to ~~Section 8.3(d)(i)~~occur of the entry into such definitive agreement or consummation of such Competing Proposal. For purposes of this Section ~~8.3(e~~8.3(c), any reference in the definition of ~~Company~~ Competing Proposal to “15%” shall be deemed to be a reference to “~~more than 80~~50%”.” If the Company fails to timely pay the Company Termination Fee under this Section 8.3(c) or Section 8.3(b) and Parent obtains a final, non-appealable judgment against the Company for the Company Termination Fee or any portion thereof, then the Company shall pay Parent (in addition to the Company Termination Fee or portion thereof deemed owing) its costs and expenses (including reasonable and documented out-of-pocket attorney’s fees and disbursements) in connection with such suit. (fd) If ~~(i) (A) Parent or~~ the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(e) (~~Failure to Obtain Parent Stockholder Approval~~Closing Failure), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee ~~less any amount previously~~ (in the form of either, at the election of Parent: (x) cash by wire transfer of immediately available funds to an account designated by the Company and/or (y) Bitcoin to a Bitcoin wallet designated by the Company). The fee shall be paid by no later than three (3) Business Days after the termination of this Agreement. If Parent ~~pursuant~~ fails to timely pay the Parent Termination Fee under this Section 8.3(d~~). For purposes of this Section 8.3(f)~~) and the Company obtains a final, non-appealable judgment against Parent for the Parent Termination Fee or any ~~reference~~ portion thereof, then Parent shall pay the Company (in addition to the ~~definition of~~ Parent ~~Competing Proposal to “15%” shall be~~ Termination Fee or portion thereof deemed ~~to be a reference to “more than 80%”~~owing) the Company’s costs and expenses (including reasonable and documented out-of-pocket attorney’s fees and disbursements) in connection with such suit. (ge) ~~In no event shall Parent be entitled~~ Notwithstanding anything to ~~receive more than one payment of~~ the ~~Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee~~contrary in this Agreement, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent (i) in ~~excess of the Transaction Expense Fee. In~~ no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable pursuant to more than one provision of this Agreement at the same time or at different times and upon the occurrence of different events, and (ii) in no event shall Parent be required to pay the Parent Termination ~~Fee~~Fee on more than one occasion, ~~then~~ whether or not the Parent ~~shall concurrently with such payment reimburse~~ Termination Fee may be payable pursuant to more than one provision of this Agreement at the ~~Company for~~ same time or at different times and upon the ~~Transaction Expense Fee~~occurrence of different events. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that (i) if this Agreement is validly terminated in accordance with Section 8.1 in the ~~monetary remedies set forth in this~~ circumstances under which a Parent Termination Fee is payable pursuant to Section ~~8.3~~8.3(d), ~~Section 6.24(h)~~ the Company’s right to receive such Parent Termination Fee from Parent (plus, if such Parent Termination Fee is not timely paid, the costs and ~~the specific performance remedies set forth~~ expenses described in Section ~~9.11~~ 8.3(d)) shall be the sole and exclusive remedies of ~~(i)~~ the Company and its Subsidiaries against ~~Parent~~ Parent, BMS and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated ~~except in~~ or any matter forming the ~~case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages~~ basis for such ~~fraud or~~ termination (including Willful and Material Breach), and upon payment of such amount, none of ~~Parent or~~ Parent, BMS and Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, ~~except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation;~~ and (ii) ~~Parent~~ if this Agreement is validly terminated in accordance with Section 8.1 in the circumstances under which a Company Termination Fee is payable pursuant to Section 8.3(b) or Section 8.3(c), Parent’s right to receive the Company Termination Fee from the Company (plus, if the Company Termination Fee is not timely paid, the costs and expenses described in Section 8.3(c)) shall be the sole and exclusive remedies of Parent, BMS and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation. Nothing in this Section 8.3(e) shall limit the rights of Parent, BMS, Merger Sub or the Company under Section 9.11 prior to the termination of this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Q Power LLC), Merger Agreement (Bitfarms LTD)

Expenses and Other Payments. (a) ~~Except as otherwise provided in~~ If this Agreement ~~(including payment of the Transaction Expense Fee~~is terminated pursuant to Section 11.1(b), Section 11.1(f), Section 11.1(g) or Section 11.1(h), then Target shall reimburse Parent, in cash, for Parent’s Expenses by wire transfer of immediately available funds to an account designated by Parent, no later than two (2) Business Days after receipt by Target of an invoice from Parent for Parent’s Expenses; provided, however, that in no event shall the amount reimbursed to Parent for its Expenses exceed $1,000,000. In all other cases, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal11.1(g), then ~~the Company~~ Target shall pay Parent the ~~Company~~ Termination Fee, in ~~each case~~cash, ~~in cash~~ by wire transfer of immediately available funds to an account designated by ~~Parent~~ Parent, no later than ~~three~~ two (32) Business Days after ~~notice of termination of this Agreement~~such termination. (c) If ~~(i) the Company~~ Target terminates this Agreement pursuant to Section ~~8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~11.1(h), then ~~Parent~~ Target shall pay Parent the ~~Company the Parent~~ Termination ~~Fee~~ Fee, in ~~cash~~ cash, by wire transfer of immediately available funds to an account designated by ~~the Company no later than three (3) Business Days after notice of termination of this Agreement~~Parent, concurrently with such termination. (d) If ~~either the Company~~ (i) Parent or ~~Parent terminates~~ Target terminate this Agreement pursuant to Section 11.1(b), (iii) ~~Section 8.1(b)(iv)(A~~prior to the Termination Date, any Person (other than Parent or its Affiliates) makes an Acquisition Proposal for Target, whether or not publicly announced, and (~~Failure to Obtain Company Stockholder Approval~~ iii) within nine (9) months of the date of such termination Target enters into a definitive agreement or ~~Confirmation Order) and the Company Termination Fee is not otherwise payable~~ consummates a transaction contemplated by ~~the Company pursuant to this Section 8.3~~an Acquisition Proposal, then ~~the Company~~ Target shall pay Parent the ~~Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure~~ Termination Fee, in cash, by wire transfer of immediately available funds to ~~Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable~~ an account designated by ~~Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case~~Parent, no later than ~~three~~ two (32) Business Days after ~~notice~~ Target consummates a transaction contemplated by an Acquisition Proposal irrespective of ~~termination of this Agreement~~the date upon which such transaction is consummated. (e) If (i) ~~(A) Parent or the Company~~ Target terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order~~11.1(f), ~~and on or before~~ (ii) prior to the date of the Target Shareholders Meeting any Person (other than Parent or its Affiliates) makes an Acquisition Proposal for Target, whether or not publicly announced, and (iii) within nine (9) months of the date of such termination Target enters into a ~~Company Competing Proposal~~ definitive agreement or consummates a transaction contemplated by an Acquisition Proposal, then Target shall ~~have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven~~ pay Parent the Termination Fee, in cash, by wire transfer of immediately available funds to an account designated by Parent, no later than two (72) Business Days ~~prior to~~ after Target consummates a transaction contemplated by an Acquisition Proposal irrespective of the ~~Company Stockholders Meeting or~~ date upon which such transaction is consummated. (Bf) ~~the Company~~ If Target terminates this Agreement pursuant to Section ~~8.1(b)(ii~~11.1(d), then Parent shall pay Target the Termination Fee, in cash, by wire transfer of immediately available funds to an account designated by Target, no later than two (2) Business Days after such termination. (~~Outside Date~~g) ~~at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or~~ If Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal11.1(e), then ~~the Company~~ Target shall pay Parent the ~~Company~~ Termination ~~Fee less any amount previously paid~~ Fee, in cash, by ~~the Company pursuant~~ wire transfer of immediately available funds to ~~Section 8.3(d)(i). For purposes of this Section 8.3(e)~~an account designated by Parent, ~~any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more~~ no later than ~~80%”~~two (2) Business Days after such termination. (fh) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section ~~8.1(b)(ii~~11.1(i) only and for none of the other reasons specified in Section 11.1, then Parent shall pay Target the Termination Fee, in cash, by wire transfer of immediately available funds to an account designated by Target, concurrently with such termination. Target agrees (~~Outside Date~~for itself and on behalf of its Subsidiaries, Affiliates, stockholders or Representatives) ~~at a time when~~ that if Parent pays the ~~Company would~~ Termination Fee pursuant to this Section 11.3(h), the payment of such Termination Fee shall be ~~permitted to terminate~~ the sole and exclusive remedy of Target, its Subsidiaries, Affiliates, stockholders or Representatives against Parent, Merger Sub or any of their respective Subsidiaries, Affiliates, partners or Representatives for Parent’s termination of this Agreement pursuant to Section ~~8.1(b)(iii)~~ 11.1(i), and in no event will Target seek to recover any other money damages or seek any other remedy based on a claim in law or equity (~~Parent Terminable Breach)~~ including specific performance). Upon payment to Target of the Termination Fee, neither Parent, Merger Sub nor any of their Subsidiaries, Affiliates, stockholders or ~~the Company terminates this Agreement pursuant~~ Representatives shall have any further liability or obligation to ~~Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution~~ Target or its Subsidiaries, Affiliates, stockholders or Representatives relating to or arising out of this Agreement ~~and on~~ or ~~before~~ the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”Transactions. (gi) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, The parties acknowledge and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this ~~Section 8.3~~ section are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this ~~Section 8.3 or Section 6.24(h)~~section, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% six percent (6%) per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a ~~Proceeding~~ suit that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable ~~out-of-pocket~~ costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such ~~Proceeding~~suit. ~~The Parties agree~~ Each of the parties further acknowledges that the ~~monetary remedies set forth~~ payment of the amounts by Parent and Target specified in this ~~Section 8.3~~section is not a penalty, ~~Section 6.24(h) and the specific performance remedies set forth~~ but in ~~Section 9.11 shall be the sole and exclusive remedies of~~ each case (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of ~~fraud~~ a Parent Breach or a ~~Willful and Material Breach of any covenant~~Target Breach) are liquidated damages in a reasonable amount that will compensate Target or Parent, ~~agreement or obligation (~~as the case may be, in the circumstances in which ~~case only Parent~~ such fees are payable for the efforts and ~~Merger Sub shall be liable for damages for such fraud or Willful~~ resources expended and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of the opportunities foregone while negotiating this Agreement or and in reliance on this Agreement and on the expectation of the consummation of the Transactions, ~~except for~~ which amount would otherwise be impossible to calculate with precision. In no event shall Parent or Target, as applicable, be required to pay the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligationTermination Fee more than once.

Appears in 2 contracts

Samples: Merger Agreement (Alta Mesa Energy LLC), Merger Agreement (Meridian Resource Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of ~~Recommendation), Section 8.1(h)(iii) (Modification~~ Recommendation or Material Breach of ~~Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support~~Non-Solicit) or (~~iii~~ii) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (Company Superior Proposal), then the Company shall pay Parent the ~~Company~~ Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Parent. If the fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than ~~three (3)~~ two Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If ~~(i)~~ the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(e) (Parent Change of ~~Recommendation),~~ Recommendation or ~~(ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~Material Breach of Non-Solicit), then Parent shall pay the Company the ~~Parent~~ Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than ~~three (3)~~ two Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Approval), then the Company shall pay Parent the Expenses (unless Parent ~~Expenses~~ is then entitled to terminate this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation or Material Breach of Non-Solicit), in which event the Company shall pay Parent the Termination Fee) or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent ~~Stockholder~~ Shareholder Approval~~) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3~~), then Parent shall pay the Company the Expenses (unless the Company ~~Expenses~~ is then entitled to terminate this Agreement pursuant to Section 8.1(e) (Parent Change of Recommendation or Material Breach of Non-Solicit), in which event Parent shall pay the Company the Termination Fee), in each case, no later than ~~three (3)~~ two Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date), or (C) ~~at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or~~ Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach), (ii) ~~and following the execution of this Agreement and~~ on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn ~~without qualification~~ (A) at least ~~seven~~ three (73) Business Days prior to the Company Stockholders Meeting (in the case of a termination pursuant to clause (i)(A)) or (B) at least three (3) Business Days prior to the date of such ~~termination,~~ termination (in the case of a termination pursuant to clauses (i)(B) or (i)(C)) and (iiiii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates any transaction meeting the parameters of a Company Competing Proposal, then the Company shall pay Parent the ~~Company~~ Termination ~~Fee~~ Fee, less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(d), in cash by wire transfer of immediately available funds to an account designated by Parent, on the earliest date of when such definitive agreement is executed or such transaction is consummated. For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%.”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent ~~Stockholder~~ Shareholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date) ~~at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii~~or (C) ~~(Parent Terminable Breach) or~~ the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach), (ii) ~~and following the execution of this Agreement and~~ on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn ~~without qualification~~ (A) at least ~~seven~~ three (73) Business Days prior to the Parent Stockholders Meeting (in the case of a termination pursuant to clause (i)(A)) or (B) at least three (3) Business Days prior to the date of such ~~termination,~~ termination (in the case of a termination pursuant to clauses (i)(B) or (i)(C)) and (iiiii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal ~~(or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal)~~ or consummates any transaction meeting the parameters of a Parent Competing Proposal, then Parent shall pay the Company the ~~Parent~~ Termination ~~Fee~~ Fee, less any amount previously paid by Parent pursuant to Section 8.3(d), in cash by wire transfer of immediately available funds to an account designated by the Company, on the earliest date of when such definitive agreement is executed or such transaction is consummated. For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%.”. (g) In no event shall ~~Parent~~ either party be entitled to receive more than one payment of the ~~Company~~ applicable Termination Fee ~~or more than~~ and one payment of ~~Parent~~ the applicable Expenses. ~~If Parent~~ Notwithstanding the foregoing sentence, if a party receives ~~the Company~~ an applicable Termination Fee, then ~~Parent~~ such party will not be entitled to also receive a payment of the ~~Parent Expenses. If Parent receives payment of Parent~~ applicable Expenses, and ~~following receipt thereof Parent becomes entitled to~~ any payment of the ~~Company Termination Fee, then~~ Expenses shall be fully creditable against any subsequent payment by the ~~amount~~ applicable party of the ~~Company~~ Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate ~~of 8% per annum~~set forth in The Wall Street Journal in effect on the date such payment was required to be made. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in Section 8.1(d) and this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section ~~9.11~~ 9.10 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a ~~Willful~~ willful and ~~Material Breach~~ material breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or ~~Willful~~ willful and ~~Material Breach~~material breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a ~~Willful~~ willful and ~~Material Breach~~ material breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a ~~Willful~~ willful and ~~Material Breach~~ material breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or ~~Willful~~ willful and ~~Material Breach~~material breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a ~~Willful~~ willful and ~~Material Breach~~ material breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Rice Energy Operating LLC), Merger Agreement (EQT Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation~~), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~) or Section ~~8.1(h)(iv~~8.1(d) (~~Withdrawal~~ Material Breach of ~~Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support~~Non-Solicit) or (~~iii~~ii) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (Company Superior Proposal), then the Company shall pay Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Parent. If the fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three (3) Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If ~~(i)~~ the Company ~~terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent~~ terminates this Agreement pursuant to Section 8.1(f) (Parent ~~Superior Proposal~~Change of Recommendation) or Section 8.1(g) (Material Breach of Non-Solicit), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Approval), then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval~~) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3~~), then Parent shall pay the Company the Company ~~Expenses~~ Expenses, in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Company ~~Stockholders~~ Stockholder Meeting or (B) ~~the Company~~ Parent terminates ~~this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate~~ this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iii~~8.1(b)(ii) (~~Company Terminable Breach~~End Date) ~~and following the execution of this Agreement~~ and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company ~~Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination~~Board, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(d). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%.”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) ~~and following~~ or Parent or the ~~execution of~~ Company terminates this Agreement pursuant to Section 8.1(b)(ii) (End Date) and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent ~~Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination~~Board, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal ~~(or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal)~~ or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “1525%” shall be deemed to be a reference to “more than 8050%.”. (g) In no event shall Parent be entitled to receive more than one (1) payment of ~~the~~ a Company Termination Fee or more than one (1) payment of Parent Expenses. If Parent receives ~~the~~ a Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one (1) payment of ~~the~~ a Parent Termination Fee or more than one (1) payment of Company Expenses. If the Company receives ~~the~~ a Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in Section 8.1(d) and this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Chesapeake Energy Corp), Merger Agreement (WildHorse Resource Development Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the ~~Merger~~ Mergers shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act and the Competition Act, applications, filings or notices in the jurisdictions set forth on Schedule 7.1(b) of the Parent Disclosure Letter, and the Registration Statement in connection with the ~~Merger~~ Mergers shall be borne equally by Parent and the Company. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section ~~8.1(c~~8.1(c)(i) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the ~~Company~~ Termination ~~Fee, in each case,~~ Amount in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after ~~notice of~~ such termination of this Agreement. (c) If ~~(i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii)~~ Parent terminates this Agreement pursuant to Section ~~8.1(f~~8.1(c)(ii) (Parent Superior Proposal), then Parent shall pay the Company the Termination Amount in cash by wire transfer of immediately available funds to an account designated by the Company concurrently with such termination of this Agreement. (d) If the Company terminates this Agreement pursuant to Section 8.1(d)(i), (Parent Change of Recommendation), then Parent shall pay the Company the Termination ~~Fee~~ Amount in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after ~~notice of~~ such termination of this Agreement. (de) If ~~either~~ the Company ~~or Parent~~ terminates this Agreement pursuant to ~~(i)~~ Section ~~8.1(b)(iv)(A~~8.1(d)(ii) (~~Failure to Obtain~~ Company ~~Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Superior Proposal), then the Company shall pay Parent the ~~Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure~~ Termination Amount in cash by wire transfer of immediately available funds to ~~Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable~~ an account designated by Parent ~~pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of~~ concurrently with such termination of this Agreement. (ef) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain the Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least ~~seven~~ five (75) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (the Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (the Company Terminable Breach) ), in each case as a result of a breach by the Company of any covenant of the Company in ARTICLE VI, and following the execution of this Agreement and ~~on or~~ before the date of any such ~~termination~~ termination, a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least ~~seven~~ five (75) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company (A) enters into a definitive agreement with ~~respect to a~~ the party making such Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing ~~Proposal~~Proposal from such party), or (B) or consummates a transaction with respect to any Company Competing Proposal, then the Company shall pay Parent the Termination Amount within three (3) Business Days after the earlier to occur of (x) the consummation of such Company ~~Termination Fee less any amount previously paid by~~ Competing Proposal and (y) entering into a definitive agreement with the party making a Company ~~pursuant~~ Competing Proposal prior to ~~Section 8.3(d)(i~~such termination of this Agreement (or publicly approving, recommending or not opposing such tender or exchange offer). For purposes of this Section ~~8.3(e~~8.3(f), any reference in the definition of the Company Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (fg) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent ~~Stockholder~~ Shareholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least ~~seven~~ five (75) Business Days prior to the Parent ~~Stockholders~~ Shareholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) ), in each case as a result of a breach by Parent of any covenant of Parent in ARTICLE VI, and following the execution of this Agreement and ~~on or~~ before the date of any such ~~termination~~ termination, a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least ~~seven~~ five (75) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, (A) Parent enters into a definitive agreement with ~~respect to a~~ the party making such Parent Competing Proposal (or publicly approves or recommends to the ~~stockholders~~ shareholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing ~~Proposal~~Proposal from such party), or (B) or consummates a transaction with respect to any Parent Competing Proposal, then Parent shall pay the Company the Termination Amount within three (3) Business Days after the earlier to occur of (x) the consummation of such Parent ~~Termination Fee less any amount previously paid by~~ Competing Proposal and (y) entering into a definitive agreement with the party making such Parent ~~pursuant~~ Competing Proposal prior to ~~Section 8.3(d~~such termination of this Agreement (or publicly approving, recommending or not opposing such tender or exchange offer). For purposes of this Section ~~8.3(f~~8.3(g), any reference in the definition of Parent Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (gh) In no event shall Parent or the Company, respectively, be entitled to receive more than one payment of the ~~Company~~ Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense FeeAmount. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and ~~that~~that (i) any Termination Amount payable by a Party pursuant to this Section 8.3 shall be in consideration for the disposition of the other Party’s rights under this Agreement, and (ii) without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on ~~such~~ the unpaid amount ~~from~~ at an annual rate equal the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required to be ~~paid pursuant to the terms of this Agreement until~~ made through the date of that such payment at or portion thereof was actually received, or a lesser rate that is the ~~rate of 8% per annum~~maximum permitted by applicable Law. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section ~~9.11~~ 9.10 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against ~~Parent~~ Parent, US Holdings, Merger Sub 1 and Merger Sub 2, their Affiliates and any of their respective former, current or future directors, officers, ~~shareholders,~~ stockholders or Representatives ~~or Affiliates~~ for any ~~loss~~ costs, expenses, losses, damages, judgments, fines, claims, penalties or liabilities suffered as a result of the failure of any of the ~~Merger~~ Transactions, including the Mergers, to be ~~consummated~~ consummated, except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation set forth in this Agreement (in which case only ~~Parent~~ Parent, US Holdings, Merger Sub 1 and Merger Sub 2 shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of ~~Parent or~~ Parent, US Holdings, Merger Sub 1, Merger Sub 2, their Affiliates or any of their respective former, current or future directors, officers, ~~shareholders,~~ stockholders or Representatives ~~or Affiliates~~ shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or ~~obligation~~obligation set forth in this Agreement; and (ii) ~~Parent~~ Parent, US Holdings, Merger Sub 1 and Merger Sub 2 against the Company and its ~~Subsidiaries~~ Affiliates and any of their respective former, current or future directors, officers, ~~shareholders,~~ stockholders or Representatives ~~or Affiliates~~ for any ~~loss~~ costs, expenses, losses, damages, judgments, fines, claims, penalties or liabilities suffered as a result of the failure of any of the ~~Merger~~ Transactions, including the Mergers, to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its ~~Subsidiaries~~ Affiliates or any of their respective former, current or future directors, officers, ~~shareholders,~~ stockholders or Representatives ~~or Affiliates~~ shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or ~~obligation~~obligation set forth in this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Ritchie Bros Auctioneers Inc), Merger Agreement (IAA, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation~~), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~) or Section ~~8.1(h)(iv~~8.1(d) (~~Withdrawal of Prepackaged Plan), (ii) Parent or~~ No Solicitation by the ~~Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal~~Company), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement~~. (c)~~ . If ~~(i)~~ the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(e) (~~Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent~~ Company Superior Proposal), then ~~Parent~~ the Company shall pay Parent the Company ~~the Parent~~ Termination Fee in cash by wire transfer of immediately available funds prior to ~~an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement~~or concurrently with such termination. (dc) If either the Company or of Parent ~~terminates~~ terminate this Agreement pursuant to (iSection 8.1(b)(iv) ~~Section 8.1(b)(iv)(A) (Failure~~ ( failure to Obtain Company Stockholder ~~Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Approval), then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this AgreementExpenses. (ed) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or 63 consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(c). ~~For purposes of this Section 8.3(e~~It is understood and agreed that (1) with respect to the preceding clause (ii), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “~~more than 80~~50%”. , (f2) If with respect to the preceding clause (i~~) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval~~), ~~and on or before the date of any such termination~~ a ~~Parent~~ Company Competing Proposal ~~shall~~ will not be deemed to have been “publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of withdrawn” by any ~~such termination a Parent Competing Proposal shall have been announced~~Person if, ~~disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii)~~ within twelve (12) months ~~after~~ of the ~~date~~ termination of ~~such termination~~the Agreement, ~~Parent enters~~ the Company or any of its Subsidiaries will have entered into a definitive agreement with respect ~~to a Parent Competing Proposal (~~to, or ~~publicly approves~~ will have consummated, or ~~recommends~~ will have approved or recommended to the stockholders of ~~Parent~~ the Company or otherwise ~~does~~ not ~~oppose~~opposed, in the case of a tender offer or exchange offer, a ~~Parent~~ Company Competing ~~Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For~~ Proposal (as defined for purposes of ~~this Section 8.3(f~~the preceding clause (i), ) made by or on behalf of such Person or any ~~reference in the definition~~ of ~~Parent~~ its Affiliates and (3) any Company Competing Proposal made prior to ~~“15%” shall~~ the execution of this Agreement will be deemed to ~~be a reference to “more than 80%”~~have been made following the execution of this Agreement if the Company breaches its obligations under Section 6.3 with respect thereto. (ge) In no event shall Parent be entitled to receive more than one (1) payment of the Company Termination Fee or more than one (1) payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses~~. If Parent receives~~ ; upon payment of ~~Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the~~ any Company Termination Fee, ~~then~~ any previously paid Parent Expenses shall be credited against the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. The Parties also agree that the Company Termination Fee and Parent Expenses are liquidated damages and not penalties, and the payment of the Company Termination Fee and/or Parent Expenses in the circumstances specified herein is supported by due and sufficient consideration. If ~~a Party~~ the Company or Parent fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the ~~other Party~~ Company or Parent, as applicable, commences a Proceeding that results in judgment for ~~such Party for such amount~~the Company or Parent, as applicable, then Parent or the ~~defaulting Party~~ Company, as applicable, shall pay the ~~other Party~~ Company or Parent, as applicable, its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be ~~consummated~~ consummated, except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (GRIID Infrastructure Inc.), Merger Agreement (GRIID Infrastructure Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the ~~Company~~ Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If ~~(i)~~ the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), ~~or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal),~~ then Parent shall pay the Company the ~~Parent~~ Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the ~~Company~~ Termination ~~Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i)~~Fee. For purposes of this Section ~~8.3(e~~8.3(d), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 8050%”. (fe) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the ~~Parent~~ Termination ~~Fee less any amount previously paid by Parent pursuant to Section 8.3(d)~~Fee. For purposes of this Section ~~8.3(f~~8.3(e), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 8050%”. (gf) In no event shall Parent or the Company, respectively, be entitled to receive more than one payment of the ~~Company~~ Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Extraction Oil & Gas, Inc.), Merger Agreement (Bonanza Creek Energy, Inc.)

Expenses and Other Payments. (a) Except as otherwise specifically provided in herein, the parties to this Agreement ~~(including payment~~ shall bear their respective expenses incurred in connection with the preparation, execution and performance of ~~the Transaction Expense Fee), each Party shall pay its own expenses incident to preparing for, entering into and carrying out~~ this Agreement and the ~~consummation~~ transactions contemplated hereby, including, without limitation, all fees and expenses of the Transactions, whether or not the Merger shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Companytheir respective Agents. (b) If RCPI agrees that if this Agreement shall be terminated pursuant to: (i) ~~Parent terminates~~ Section 6.1(b)(i), 6.1(f) or 6.1(g) and within 30 months after the date on which this Agreement is terminated RCPI shall consummate an Alternate Transaction; or (ii) Section 6.1(d) (if (x) each of Parent, Sub, GSMC and each of the Investors is not in material breach of any covenant, representation or warranty; (y) each of Parent, Sub and each of the Investors is ready, willing and able to consummate the Merger; and (z) each of Parent, Sub, GSMC and each of the Investors has satisfied in all material respects the conditions set forth in Section 5.3 applicable to it) or 6.1(e) and (A) at the time this Agreement is terminated there shall exist an Alternate Transaction Proposal or any Person shall have publicly announced its intention to make an Alternate Transaction Proposal and (B) within 30 months after the date on which this Agreement is terminated RCPI shall consummate an Alternate Transaction; then RCPI shall pay to Parent an amount equal to $6.5 million less any amounts paid to Parent pursuant to Section ~~8.1(c) (Company Change of Recommendation~~7.5(c), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) ~~If (i) the Company terminates~~ RCPI agrees that if this Agreement shall be terminated pursuant to Section ~~8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~6.1(e), then ~~Parent~~ RCPI shall pay ~~the Company the~~ to Parent ~~Termination Fee in cash by wire transfer of immediately available funds~~ an amount equal to ~~an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement~~$2.925 million. (d) ~~If either the Company or Parent terminates~~ In addition, RCPI agrees that if this Agreement shall be terminated pursuant to Section 6.1 (i) other than Section ~~8.1(b)(iv)(A) (Failure~~ 6.1(c)), then RCPI shall pay to ~~Obtain Company Stockholder Approval or Confirmation Order)~~ Parent all expenses up to an aggregate amount of $2.5 million incurred by Parent, Sub and the ~~Company Termination Fee is not otherwise payable by~~ Investors in connection with the ~~Company pursuant to~~ preparation, execution and performance of this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation Agreement and the ~~Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3~~transactions contemplated hereby, ~~then Parent shall pay the Company the Company Expenses in each case~~including, ~~no later than three (3) Business Days after notice~~ without limitation, all fees and expenses of ~~termination of this Agreement~~their respective Agents. (e) ~~If (i) (A) Parent or the Company terminates this Agreement~~ Any payment required to be made pursuant to Section ~~8.1(b)(iv)(A~~7.5(b) ~~(Failure to Obtain Company Stockholder Approval or Confirmation Order)~~shall be made concurrently with the consummation of the applicable Alternate Transaction, and ~~on or before the date of~~ any ~~such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior~~ payment required to ~~the Company Stockholders Meeting or (B) the Company terminates this Agreement~~ be made pursuant to Section ~~8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~7.5(c) or ~~Parent terminates this Agreement pursuant~~ (d) shall be made promptly following any termination to which Section ~~8.1(b)(iii~~7.5(c) or (~~Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced~~d), disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in as the case ~~of a tender or exchange offer~~may be, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”applies. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Rockefeller Center Properties Inc), Merger Agreement (Tishman Speyer Properties L P)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing ~~for,~~ for entering into and carrying out this Agreement and the consummation of the ~~Transactions~~transactions contemplated hereby, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support7.1(c) or (~~iii~~ii) the Company terminates this Agreement pursuant to Section ~~8.1(e) (Company Superior Proposal~~7.1(d), then the Company shall pay Parent a fee of $9,308,146 (the ~~Company~~ “Termination Fee~~, in each case,~~ ”) in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Parent. If the Termination Fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the Termination Fee shall be paid no later than three ~~(3)~~ Business Days after notice of termination of this Agreement and if the Termination Fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the Termination Fee shall be paid on the date of termination of this Agreement. (c) If either Parent or the Company terminates this Agreement pursuant to clause (B) of Section 7.1(b)(i) or Section 7.1(b)(ii) or Parent terminates this Agreement pursuant to Section 7.1(b)(iii) and (i) at prior to such termination, an Acquisition Proposal has been publicly announced, disclosed or otherwise communicated to the Board or its stockholders or any Person shall have publicly announced an intention (whether or not conditional) to make an Acquisition Proposal and (ii) within twelve months after such termination, the Company consummates a transaction with respect to an Acquisition Proposal or the Company enters into a definitive agreement with respect of an Acquisition Proposal that is later consummated, then at the closing or other consummation of such Acquisition Proposal, the Company shall pay Parent the Termination Fee by wire transfer of immediately available funds to an account designated by Parent; provided, however, that for the purposes of clause (ii), any reference in the definition of Acquisition Proposal to 20% shall be deemed to be a reference to 50%. (d) If (i) either Parent or the Company terminates this Agreement pursuant to Section ~~8.1(d~~7.1(b)(i)(A) ~~(Parent Change~~ and at that time there exists any final and nonappealable order, decree, ruling, injunction or other action permanently restraining, enjoining or otherwise prohibiting the consummation of ~~Recommendation),~~ the Merger by any Antitrust Authority or (ii) either Parent or the Company terminates this Agreement pursuant to Section ~~8.1(f~~7.1(b)(ii) and (~~Parent Superior Proposal)~~A) the condition specified in Section 6.1(b) has not been satisfied or (B) the condition specified in Section 6.1(c) has not been satisfied because there exists any final and nonappealable order, decree, ruling, injunction or other action (whether temporary, preliminary or permanent) restraining, enjoining or otherwise prohibiting the consummation of the Merger by any Antitrust Authority, then Parent shall pay to the Company the ~~Parent~~ Termination Fee in cash by wire transfer of immediately available funds to an account designated by the ~~Company~~ Company. If the Termination Fee shall be payable pursuant to the immediately preceding sentence as a result of a termination of this Agreement by the Company, the Termination Fee shall be paid no later than three ~~(3)~~ Business Days after notice of termination of this Agreement~~. (d) If either~~ , and if the ~~Company or Parent terminates~~ Termination Fee shall be payable pursuant to the immediately preceding sentence as a result of a termination of this Agreement ~~pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and~~ by Parent, the ~~Company~~ Termination Fee ~~is not otherwise payable by~~ shall be paid on the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice date of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall either Parent ~~be entitled to receive more than one payment of the Company Termination Fee~~ or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the ~~Parent~~ Termination Fee. (f) Notwithstanding anything in this Agreement to the contrary, except in the case of fraud or a willful and material breach of this Agreement, in the event that the Termination Fee ~~or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee~~becomes payable in accordance with Section 7.3(d), then ~~the~~ payment to Company ~~will not be entitled to also receive a payment~~ of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee ~~payable to the Company~~ shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the Company’s sole and exclusive ~~remedies~~ remedy as liquidated damages for any and all losses or damages of ~~(i) the Company and its Subsidiaries~~ any nature against Parent and Merger Sub and ~~any~~ each of their respective former, current or and future directors, officers, employees, agents, general and limited partners, managers, members, shareholders, ~~Representatives~~ Affiliates and assignees and each former, current or ~~Affiliates~~ future director, officer, employee, agent, shareholder, general or limited partner, manager, member, shareholder, Affiliate or assignee of any of the foregoing (collectively, the “Parent Parties”) in respect of this Agreement, any agreement executed in connection herewith (other than Confidentiality Agreement), and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the failure of the Merger to be consummated ~~except in the case of fraud~~ or for a ~~Willful and Material Breach of any covenant~~breach or failure to perform hereunder (whether intentionally, ~~agreement~~ unintentionally, or ~~obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud~~ otherwise) or ~~Willful and Material Breach)~~otherwise, and upon payment of such ~~amount, none of~~ Termination Fee no Parent ~~or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates~~ Party shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions, except for the liability of Parent in the case of fraud or a Willful~~ transactions contemplated hereby and ~~Material Breach of any covenant, agreement or obligation; and~~ thereby. (iig) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none Each of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of Parent acknowledges that the agreements contained in this ~~Agreement or the Transactions, except for the liability~~ Section 7.3 are an integral part of the transactions contemplated by this Agreement. In the event that the Company in or Parent shall fail to pay the Termination Fee when due, the Company or Parent, as the case may be, shall reimburse the other party for all reasonable costs and expenses actually incurred or accrued by such other party (including reasonable fees and expenses of ~~fraud or a Willful and Material Breach~~ counsel) in connection with any action (including the filing of any ~~covenant~~lawsuit) taken to collect payment of such amounts, ~~agreement or obligation~~together with interest on such unpaid amounts at the prime lending rate prevailing during such period as published in The Wall Street Journal, calculated on a daily basis from the date such amounts were required to be paid to the date of actual payment.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Medical Action Industries Inc), Merger Agreement (Owens & Minor Inc/Va/)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds to an account designated by Parent contemporaneously with the termination of this Agreement. (c) If Parent terminates this Agreement pursuant to Section 8.1(d) (Company Change of Recommendation) or Section 8.1(f) (No Solicitation by the Company), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (cd) If ~~(i)~~ Parent or the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(b)(iv) (~~Parent~~ Failure to Obtain Company Stockholder Approval) and the Company Board or a committee thereof has effected a Company Change of ~~Recommendation~~Recommendation (whether or not such Company Change of Recommendation is permitted by this Agreement), then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (e) If either the Company or ~~(ii)~~ Parent terminates this Agreement pursuant to Section ~~8.1(f~~8.1(b)(iv) (Failure to Obtain Company Stockholder Approval), or if either the Company or Parent ~~Superior Proposal~~terminates this Agreement pursuant to Section 8.1(b)(v) (Dissenting Shares), then the Company shall pay Parent the Parent Expenses. (f) If the Company terminates this Agreement pursuant to Section 8.1(c) (Failure to Obtain Parent Stockholder Approval), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (eg) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order),~~ Approval) and following the execution of this Agreement and on or before the date of ~~any~~ such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company ~~Stockholders Meeting~~ Stockholder Consent Deadline or (B) the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of ~~any~~ such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(e). For purposes of this Section ~~8.3(e~~8.3(g), (1) any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”,” (2) with respect to clause (B) only, a Company Competing Proposal will not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of the termination of the Agreement, the Company or any of its Subsidiaries will have entered into a definitive agreement with respect to, or will have consummated, or will have approved or recommended to the stockholders of the Company or otherwise not opposed, in the case of a tender offer or exchange offer, a Company Competing Proposal made by or on behalf of such Person or any of its Affiliates and (3) any Company Competing Proposal made prior to the execution of this Agreement will be deemed to have been made following the execution of this Agreement if the Company breaches its obligations under Section 6.3(a) with respect thereto. (fh) If (i) ~~(A) Parent or~~ the Company ~~terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on~~ or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach~~) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination ~~Fee less any amount previously paid by Parent pursuant to Section 8.3(d)~~Fee. For purposes of this Section ~~8.3(f~~8.3(h), (1) any reference in the definition of Parent Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”” and (2) a Parent Competing Proposal will not be deemed to have been “publicly withdrawn” by any Person if, within twelve (12) months of the termination of the Agreement, Parent or any of its Subsidiaries will have entered into a definitive agreement with respect to, or will have consummated, or will have approved or recommended to the stockholders of Parent or otherwise not opposed, in the case of a tender offer or exchange offer, a Parent Competing Proposal made by or on behalf of such Person or any of its Affiliates and (3) any Parent Competing Proposal made prior to the execution of this Agreement will be deemed to have been made following the execution of this Agreement if Parent breaches its obligations under Section 6.4(a) with respect thereto. (gi) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination ~~Fee or more than one payment of Company Expenses~~Fee. If both the Company ~~receives~~ Termination Fee and the Parent Termination ~~Fee~~Fee are payable pursuant to this Section 8.3, ~~then the Company will not be entitled to also receive a~~ no payment of the Company ~~Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent~~ Termination ~~Fee, then the amount of~~ Fee or the Parent Termination Fee ~~payable to the Company~~ shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Feerequired. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Eclipse Resources Corp), Voting Agreement (Eclipse Resources Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation~~), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~) or Section ~~8.1(h)(iv~~8.1(d) (~~Withdrawal of Prepackaged Plan), (ii) Parent or~~ No Solicitation by the ~~Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal~~Company), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement~~. (c)~~ . If ~~(i)~~ the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(e) (~~Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent~~ Company Superior Proposal), then ~~Parent~~ the Company shall pay Parent the Company ~~the Parent~~ Termination Fee in cash by wire transfer of immediately available funds prior to ~~an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement~~or concurrently with such termination. (dc) If either the Company or of Parent ~~terminates~~ terminate this Agreement pursuant to (iSection 8.1(b)(iv) ~~Section 8.1(b)(iv)(A) (Failure~~ ( failure to Obtain Company Stockholder ~~Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Approval), then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this AgreementExpenses. (ed) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(c). ~~For purposes of this Section 8.3(e~~It is understood and agreed that (1) with respect to the preceding clause (ii), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “~~more than 80~~50%”. , (f2) If with respect to the preceding clause (i~~) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval~~), ~~and on or before the date of any such termination~~ a ~~Parent~~ Company Competing Proposal ~~shall~~ will not be deemed to have been “publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of withdrawn” by any ~~such termination a Parent Competing Proposal shall have been announced~~Person if, ~~disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii)~~ within twelve (12) months ~~after~~ of the ~~date~~ termination of ~~such termination~~the Agreement, ~~Parent enters~~ the Company or any of its Subsidiaries will have entered into a definitive agreement with respect ~~to a Parent Competing Proposal (~~to, or ~~publicly approves~~ will have consummated, or ~~recommends~~ will have approved or recommended to the stockholders of ~~Parent~~ the Company or otherwise ~~does~~ not ~~oppose~~opposed, in the case of a tender offer or exchange offer, a ~~Parent~~ Company Competing ~~Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For~~ Proposal (as defined for purposes of ~~this Section 8.3(f~~the preceding clause (i), ) made by or on behalf of such Person or any ~~reference in the definition~~ of ~~Parent~~ its Affiliates and (3) any Company Competing Proposal made prior to ~~“15%” shall~~ the execution of this Agreement will be deemed to ~~be a reference to “more than 80%”~~have been made following the execution of this Agreement if the Company breaches its obligations under Section 6.3 with respect thereto. (ge) In no event shall Parent be entitled to receive more than one (1) payment of the Company Termination Fee or more than one (1) payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses~~. If Parent receives~~ ; upon payment of ~~Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the~~ any Company Termination Fee, ~~then~~ any previously paid Parent Expenses shall be credited against the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. The Parties also agree that the Company Termination Fee and Parent Expenses are liquidated damages and not penalties, and the payment of the Company Termination Fee and/or Parent Expenses in the circumstances specified herein is supported by due and sufficient consideration. If ~~a Party~~ the Company or Parent fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the ~~other Party~~ Company or Parent, as applicable, commences a Proceeding that results in judgment for ~~such Party for such amount~~the Company or Parent, as applicable, then Parent or the ~~defaulting Party~~ Company, as applicable, shall pay the ~~other Party~~ Company or Parent, as applicable, its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be ~~consummated~~ consummated, except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Cleanspark, Inc.), Merger Agreement (Cleanspark, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (~~Agreement, including ~~payment~~ in this Section 8.3, and except with respect to costs and expenses of printing and mailing the ~~Transaction Expense Fee)~~Proxy Statement, which shall be borne by Crosstex, and all filing and other fees paid to the SEC in connection with the Registration Statement and the Mergers, which shall be borne equally by Crosstex and Devon, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the ~~Transactions~~transactions contemplated by this Agreement, whether or not the ~~Merger~~ Mergers shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company Devon terminates this Agreement pursuant to Section 8.1(e) ~~(Company Superior Proposal~~or Crosstex terminates this Agreement pursuant to Section 8.1(g), ~~then~~ Crosstex shall (i) pay Devon the ~~Company shall pay Parent the Company~~ Termination Fee~~, in each case~~, in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Devon, (A) no later than ~~three~~ two (32) Business Days after ~~notice~~ such termination, in the case of a termination pursuant to Section 8.1(e) or (B) prior to or concurrently with such termination, in the case of a termination pursuant to Section 8.1(g), and (ii) reimburse Devon, in cash, for the Devon Expenses, by wire transfer of immediately available funds to an account designated by Devon no later than two (2) Business Days after receipt by Crosstex of an invoice from Devon for the Devon Expenses; provided, however, that if this ~~Agreement~~Agreement is terminated by Crosstex pursuant to Section 8.1(g) prior to 5:00 p.m. Dallas, Texas time on the date that is forty-five (45) days following the Execution Date, then Crosstex shall have no obligation to reimburse Devon for any expenses pursuant to clause (ii). (c) If (ieither Devon or Crosstex terminates this Agreement pursuant to Section 8.1(f) ~~the Company~~ or Devon terminates this Agreement pursuant to Section 8.1(d) and (~~Parent Change~~ i) in the case of ~~Recommendation), or (ii) Parent terminates this Agreement~~ a termination pursuant to Section 8.1(f), there shall have been publicly announced, publicly disclosed or otherwise publicly made known an Acquisition Proposal for Crosstex (other than by any Devon Party or any of their respective Affiliates) on or after the Execution Date and prior to the Crosstex Stockholder Meeting; or in the case of a termination pursuant to Section 8.1(d), an Acquisition Proposal shall have been made for Crosstex on or after the Execution Date and prior to such termination, whether or not publicly announced, disclosed or otherwise made known, and (~~Parent Superior Proposal~~ii) within twelve (12) months after such termination, Crosstex enters into a definitive agreement with respect to or consummates any Acquisition Proposal (provided, that, for purposes of this sentence, any reference in the definition of Acquisition Proposal to 15% shall be deemed to be a reference to 50%), then ~~Parent~~ on the earlier of (A) the date of entering into such definitive agreement and (B) the closing or other consummation of such Acquisition Proposal, Crosstex shall pay Devon the ~~Company the Parent~~ Termination ~~Fee~~ Fee, in cash by wire transfer of immediately available funds to an account designated by Devon and, in addition, if no obligation to reimburse Devon Expenses has previously arisen under Section 8.3(d), Crosstex shall reimburse Devon in cash for the ~~Company~~ Devon Expenses by wire transfer of immediately available funds to an account designated by Devon no later than ~~three~~ two (32) Business Days after ~~notice~~ receipt by Crosstex of ~~termination of this Agreement~~an invoice for the Devon Expenses. (d) If either ~~the Company~~ Devon or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company Crosstex terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order~~8.1(f), ~~and on or before~~ then, in addition to any other obligations of Crosstex hereunder, Crosstex shall reimburse Devon in cash for the ~~date~~ Devon Expenses by wire transfer of ~~any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven~~ immediately available funds to an account designated by Devon, no later than two (72) Business Days ~~prior to~~ after receipt by Crosstex of an invoice from Devon for the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”Devon Expenses. (fe) ~~If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval),~~ The parties acknowledge and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the ~~Transactions~~transactions contemplated by this Agreement, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain ~~such~~ payment, the other ~~Party~~ party commences a ~~Proceeding~~ suit that results in judgment for such ~~Party for such amount~~party, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable ~~out-of-pocket~~ costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such ~~Proceeding~~suit. Each of the parties further acknowledges that the payment of the amounts by Devon and Crosstex specified in this Section 8.3 is not a penalty, but in each case is liquidated damages in a reasonable amount that will compensate Devon or Crosstex, as the case may be, in the circumstances in which such fees are payable and which do not involve fraud or a Willful and Material Breach as described in Section 8.2(b), for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance and equitable remedies set forth in Section ~~9.11~~ 10.11, shall be the ~~sole and~~ exclusive remedies of ~~(i)~~ the ~~Company and its Subsidiaries~~ Devon Parties against ~~Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates~~ Crosstex for any loss suffered as a result of the failure of the ~~Merger~~ Mergers to be consummated or any breach of this Agreement except in the case of fraud or a Willful and Material Breach and upon payment of such amounts Crosstex shall have no further liability relating to such events except in the case of fraud or a Willful and Material Breach of ~~any covenant, agreement or obligation (in which case only Parent and Merger Sub~~ this Agreement. In no event shall Crosstex be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating required to ~~or arising out of this Agreement or~~ pay the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligationTermination Fee more than once.

Appears in 2 contracts

Samples: Merger Agreement (Crosstex Energy Inc), Merger Agreement (Devon Energy Corp/De)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to (A) Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support8.1(c)(i) or (~~iii~~B) Section 8.1(c)(ii) or (ii) the Company terminates this Agreement pursuant to Section ~~8.1(e) (Company Superior Proposal~~8.1(d)(i), then the Company shall pay Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Parent. If the fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three ~~(3)~~ Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If ~~(i)~~ the Company terminates this ~~Agreement~~ agreement pursuant to Section ~~8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~8.1(d)(ii), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three ~~(3)~~ Business Days after notice of termination of this Agreement. (d) If either the Company or ~~Parent~~ Parent, as applicable, terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A~~) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~), then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3), then Parent shall pay the Company the Company ~~Expenses~~ Expenses, in each ~~case,~~ case no later than three ~~(3)~~ Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A~~) (Failure to Obtain Company Stockholder Approval or Confirmation Order~~), ~~and~~ or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(iii), (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company ~~Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination~~Board, and (iiiii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a ~~Company~~ Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a ~~Company~~ Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any ~~amount~~ Parent Expenses previously ~~paid by the Company pursuant to Section 8.3(d)(i)~~paid. For purposes of this Section 8.3(e), any reference in the definition of ~~Company~~ Competing Proposal to “~~15%~~20% or more” shall be deemed to be a reference to “more than 8050%.” (f) If the Company terminates this Agreement pursuant to Section 8.1(d)(iii), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three Business Days after notice of termination of this Agreement. (fg) If (i) (A) the Company terminates this Agreement pursuant to Section 8.1(b)(iii), Section 8.1(d)(ii) or Section 8.1(d)(iii) or (B) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B~~) (Failure to Obtain Parent Stockholder Approval~~), ~~and~~ (ii) on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing an Alternative Proposal shall have been announced, disclosed or otherwise communicated to the Parent ~~Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination~~Board, and (iiiii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to ~~a Parent Competing~~ an Alternative Proposal ~~(or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal)~~ or consummates ~~a Parent Competing~~ an Alternative Proposal, then Parent shall pay the Company the Parent ~~Termination~~ Alternative Proposal Fee less any ~~amount~~ Parent Termination Fee or Company Expenses previously ~~paid by Parent pursuant to Section 8.3(d)~~paid. For purposes of this Section ~~8.3(f~~8.3(g), any reference in the definition of ~~Parent Competing~~ Alternative Proposal to “1520%” shall be deemed to be a reference to “~~more than 80~~50%.” (h) If Parent terminates this Agreement pursuant to Section 8.1(c)(iii), then Parent shall pay the Company the Parent Alternative Proposal Fee in cash by wire transfer of immediately available funds to an account designated by the Company contemporaneously with such termination of this Agreement. (gi) In no event shall Parent be entitled to receive more than one payment of ~~the~~ a Company Termination Fee or more than one payment of the Parent Expenses. If Parent receives ~~the~~ a Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of ~~the~~ a Parent Termination ~~Fee~~ Fee, more than one payment of the Company Expenses or more than one payment of ~~Company Expenses~~the Parent Alternative Proposal Fee. If the Company receives ~~the~~ a Parent Termination Fee or a Parent Alternative Proposal Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If Parent or the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay ~~the~~ a Parent Termination Fee or Company ~~the Parent~~ Termination Fee, as applicable, pursuant to Section 8.3(b)(i)(B) or Section 8.3(c), as applicable, then ~~Parent shall concurrently~~ the payment of such fees will be taken into account in any determination of the damages with ~~such~~ respect to any intentional and material breach of the applicable obligations under Section 6.5 or Section 6.6 that give rise to the payment ~~reimburse the Company for the Transaction Expense Fee~~of damages in accordance with Section 8.3(j). The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. . (j) The ~~Parties~~ parties agree that the monetary remedies set forth in Section 8.1(d)(i) and this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or an intentional and material breach of a ~~Willful and Material Breach of any~~ covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or ~~Willful~~ intentional and ~~Material Breach~~material breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions~~transactions contemplated hereby, except for the liability of Parent in the case of intentional fraud or an intentional and material breach of a ~~Willful and Material Breach of any~~ covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or an intentional and material breach of a ~~Willful and Material Breach of any~~ covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud ~~or Willful~~ intentional and ~~Material Breach~~material breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions~~transactions contemplated hereby, except for the liability of the Company in the case of intentional fraud or an intentional and material breach of a ~~Willful and Material Breach of any~~ covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Range Resources Corp), Merger Agreement (Memorial Resource Development Corp.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated. For the avoidance of doubt, ~~except that all filing fees paid in respect of~~ Parent shall bear and pay the ~~filings under the HSR Act~~ expenses incurred in connection with the filing of the Registration Statement and the printing and mailing to the stockholders of Parent of the Joint Proxy Statement and the Company shall bear and pay the expenses incurred in connection with the filing, printing and mailing to the stockholders of the Company of the Joint Proxy Statement. Except as otherwise provided in Section 3.3(b)(v), all transfer, documentary, sales, use, stamp, registration and other similar Taxes and fees imposed with respect to, or as a result of, the Merger shall be borne ~~equally~~ by Parent or the Surviving Corporation, and ~~the Company~~expressly shall not be a Liability of holders of Company Common Stock. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), ~~Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(h)(i~~8.1(b)(ii) (~~Termination~~ End Date) and, in the case of ~~Support~~clause (ii) only, both the Company Stockholder Approval shall not have been obtained and the Company Board or a committee thereof shall have effected a Company Change of Recommendation, or (iii) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval) at a time when Parent had the right to terminate this Agreement pursuant to Section 8.1(c) (Company ~~Superior Proposal~~Change of Recommendation), then the Company shall pay Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds to an account designated by Parent no later than ~~three (3)~~ two Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (End Date) and, in the case of clause (ii) only, both the Parent Stockholder Approval shall not have been obtained and the Parent Board or a committee thereof shall have effected a Parent Change of Recommendation, or (iiiii) Parent terminates this Agreement pursuant to Section ~~8.1(f~~8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) at a time when the Company had the right to terminate this Agreement pursuant to Section 8.1(d) (Parent ~~Superior Proposal~~Change of Recommendation), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than ~~three (3)~~ two Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval~~ Approval), other than in the circumstances described in Section 8.3(b) or ~~Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this~~ Section ~~8.3~~8.3(e), then the Company shall pay Parent the ~~Parent Expenses~~ Expense Amount or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), other than in the circumstances described in Section 8.3(c) ~~following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this~~ or Section ~~8.3~~8.3(f), then Parent shall pay the Company the ~~Company Expenses~~ Expense Amount, in each case, no later than ~~three (3)~~ two Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal made after the entry into this Agreement but before any termination shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least ~~seven (7)~~ five Business Days prior to the Company Stockholders Meeting or (B) the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been ~~announced,~~ publicly announced or publicly disclosed ~~or otherwise communicated to the Company Board~~ and not publicly withdrawn without qualification at least ~~seven (7)~~ five Business Days prior to the date of such termination, and (ii) (x) within ~~twelve (12)~~ nine months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal and (y) such transaction is subsequently consummated, whether during or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposalfollowing such nine-month period, then the Company shall pay ~~Parent~~ Parent, within two Business Days of the consummation of such transaction, the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). ~~For purposes of this Section 8.3(e~~It is understood and agreed that with respect to the preceding clauses (i) and (ii), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “~~more than 80~~50%.”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal made after the entry into this Agreement but before any termination shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least ~~seven (7)~~ five Business Days prior to the Parent Stockholders Meeting or (B) the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach~~) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been ~~announced,~~ publicly announced or publicly disclosed ~~or otherwise communicated to the Parent Board~~ and not publicly withdrawn without qualification at least ~~seven (7)~~ five Business Days prior to the date of such termination, and (ii) (x) within ~~twelve (12)~~ nine months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal and (y) such transaction is subsequently consummated, whether during or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposalfollowing such nine-month period, then Parent shall pay the ~~Company~~ Company, within two Business Days of the consummation of such transaction, the Parent Termination Fee less any amount previously paid by Parent pursuant to Section ~~8.3(d~~8.3(d)(ii). ~~For purposes of this Section 8.3(f~~It is understood and agreed that (1) with respect to the preceding clause (i) and (ii), any reference in the definition of Parent Competing Proposal to “1520%” shall be deemed to be a reference to “~~more than 80~~50%.”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of ~~Parent Expenses~~the Expense Amount. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the ~~Parent Expenses. If Parent receives~~ Expense Amount; upon payment of ~~Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the~~ any Company Termination Fee, ~~then~~ any Expense Amount previously paid by the Company shall be credited against the amount of the Company Termination ~~Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense~~ Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of ~~Company Expenses~~the Expense Amount. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the ~~Company Expenses. If the Company receives~~ Expense Amount; upon payment of ~~Company Expenses, and following receipt thereof the Company becomes entitled to payment of the~~ any Parent Termination Fee, ~~then~~ any Expense Amount previously paid by Parent shall be credited against the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate equal to the greater of 85% per ~~annum~~annum and the federal funds rate. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the ~~specific performance~~ equitable remedies set forth in Section ~~9.11~~ 9.9 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of actual fraud (as defined under Delaware law) to the extent arising out of the express representations and warranties made by Parent under Article V or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), ~~and~~ and, upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further ~~liability~~ Liability or obligation relating to or arising out of this Agreement or the Transactions, except for the ~~liability~~ Liability of Parent or Merger Sub, as applicable, in the case of actual fraud (as defined under Delaware law) to the extent arising out of the express representations and warranties made by Parent under Article V or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of actual fraud (as defined under Delaware law) to the extent arising out of the express representations and warranties made by the Company under Article IV or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), ~~and~~ and, upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further ~~liability~~ Liability or obligation relating to or arising out of this Agreement or the Transactions, except for the ~~liability~~ Liability of the Company in the case of actual fraud (as defined under Delaware law) to the extent arising out of the express representations and warranties made by the Company under Article IV or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Arch Resources, Inc.), Merger Agreement (CONSOL Energy Inc.)

Appears in 2 contracts

Samples: Merger Agreement (Lyondell Chemical Co), Agreement and Plan of Merger (AI Chemical Investments LLC)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Company Merger shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Company Merger shall be borne equally by ~~Parent~~ the Company and ~~the Company~~Parent. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section ~~8.1(c~~8.1(c)(i) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If ~~(i)~~ the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation~~), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the ~~stockholders~~ shareholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee ~~less any amount previously paid by~~ within three (3) Business Days after the earlier to occur of (x) the consummation of such Company ~~pursuant~~ Competing Proposal or (y) entering into a definitive agreement relating to ~~Section 8.3(d)(i)~~a Company Competing Proposal. For purposes of this Section ~~8.3(e~~8.3(d), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (fe) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent ~~Stockholder~~ Shareholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent ~~Stockholders~~ Shareholder Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the ~~stockholders~~ shareholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee ~~less any amount previously paid by~~ within three (3) Business Days after the earlier to occur of (x) the consummation of such Parent ~~pursuant~~ Competing Proposal or (y) entering into a definitive agreement relating to ~~Section 8.3(d)~~a Parent Competing Proposal. For purposes of this Section ~~8.3(f~~8.3(e), any reference in the definition of Parent Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (f) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval), then the Company shall pay Parent the Parent Expenses. (g) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Shareholder Approval), then Parent shall pay the Company the Company Expenses. (h) In no event shall Parent or the Company, respectively, be entitled to receive more than one payment of the Company Termination Fee or ~~more than one payment of~~ Parent ~~Expenses. If Parent receives the Company~~ Termination Fee, ~~then Parent will not be entitled~~ as applicable. Notwithstanding anything in this Agreement to ~~also receive a~~ the contrary, the payment of the Parent ~~Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment~~ Expenses or of the Company ~~Termination Fee~~Expenses shall not relieve the Company or Parent, ~~then the amount~~ respectively, of any subsequent obligation to pay the Company Termination Fee ~~payable~~ pursuant to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of Section 8.3(b) or Section 8.3(d) or the Parent Termination Fee pursuant to Section 8.3(c) or ~~more than one payment of Company Expenses. If the Company receives the Parent Termination Fee~~Section 8.3(e), ~~then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses~~as applicable; provided, ~~and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to~~ that the Company shall be ~~reduced~~ entitled to credit any prior Parent Expenses actually paid by Company against the amount of any Company ~~Expenses. If Parent is~~ Termination Fee required to ~~pay~~ be paid pursuant to Section 8.3(b) or Section 8.3(d) and Parent shall be entitled to credit any prior Company Expenses actually paid by Parent against the ~~Company the~~ amount of any Parent Termination ~~Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee~~Fee required to be paid pursuant to Section 8.3(c) or Section 8.3(e). The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section ~~9.11~~ 9.10 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against the Parent ~~and Merger Sub~~ Parties and any of their respective former, current or future directors, officers, shareholders, stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Company Merger to be consummated except in the case of ~~fraud~~ Fraud or a Willful and Material Breach by Parent of any covenant, agreement or obligation (in which case only the Parent ~~and Merger Sub~~ Parties shall be liable for damages for such ~~fraud~~ Fraud or Willful and Material Breach), and upon payment of such amount, none of the Parent ~~or Merger Sub~~ Parties or any of their respective former, current or future directors, officers, shareholders, stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of ~~fraud~~ Fraud or a Willful and Material Breach by Parent of any covenant, agreement or obligation; and (ii) each of the Parent ~~and Merger Sub~~ Parties against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Company Merger to be consummated except in the case of ~~fraud~~ Fraud or a Willful and Material Breach by the Company of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such ~~fraud~~ Fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of ~~fraud~~ Fraud or a Willful and Material Breach by the Company of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Ranger Oil Corp), Merger Agreement (Ranger Oil Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three ~~(3)~~ Business Days after notice of termination of this Agreement. (c) If ~~(i)~~ the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation~~), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three ~~(3)~~ Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) ~~following the occurrence of any Parent Change of Recommendation~~ and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company ~~Expenses~~ Expenses, in each case, no later than three ~~(3)~~ Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven ~~(7)~~ Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven ~~(7)~~ Business Days prior to the date of such termination, and (ii) within twelve ~~(12)~~ months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven ~~(7)~~ Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven ~~(7)~~ Business Days prior to the date of such termination, and (ii) within twelve ~~(12)~~ months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section ~~8.3(d~~8.3(d)(ii). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 2 contracts

Samples: Merger Agreement (Parsley Energy, Inc.), Merger Agreement (Jagged Peak Energy Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If this Agreement is terminated under any of the circumstances described in paragraph (i) of this Section 8.3(b), the Company shall be required to pay to Parent the applicable Company Termination Fee at the time and subject to such other conditions as may be set forth in such paragraph. Subject to Section 8.2, Parent shall not be entitled to any termination fee, reimbursement of expenses, or other consideration in respect of any termination of this Agreement pursuant to any provision of this Article VIII. (i) If (a) Parent terminates this Agreement pursuant to Section 8.1(c) (Change in Company ~~Change of~~ Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (ib) the Company terminates this Agreement pursuant to Section 8.1(d) (~~Parent Change of Recommendation),~~ Superior Proposal) or ~~(ii) Parent terminates this Agreement pursuant to~~ Section 8.1(f) (~~Parent Superior Proposal~~Intervening Event), then ~~Parent~~ the Company shall pay Parent the applicable Company ~~the Parent~~ Termination Fee in cash by wire transfer of immediately available funds to an account designated by Parent. If the ~~Company~~ fee shall be payable pursuant to clause (a) of the immediately preceding sentence, the fee shall be paid no later than three Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (3b) of the immediately preceding sentence, the fee shall be paid no later than two Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (~~i) (A~~a) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), ~~and~~ (b) on or before the date of any such termination a ~~Company~~ Competing ~~Proposal~~ Transaction shall have been publicly ~~announced or publicly~~ disclosed and not ~~been publicly withdrawn without qualification at least seven~~ withdrawn, (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (iic) within twelve ~~(12)~~ months after the date of such termination, the Company enters into a definitive ~~agreement~~ Agreement with respect to that Competing Transaction (which is a ~~Company Competing~~ Superior Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a ~~Company Competing Proposal~~Superior Proposal (other than one in which Parent, NuDevco Retail or Mr. Xxxxxxx (or their successors) have agreed in writing to participate in or participated in), then the Company shall pay the Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”Fee. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (gc) In no event shall Parent be entitled to receive more than one payment of ~~the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the~~ a Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of ~~(i)~~ Parent and Merger Sub against the Company and its Subsidiaries ~~against Parent and Merger Sub~~ and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of ~~fraud or~~ a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against by the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such ~~fraud or~~ Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions. (d) To the extent Company engages any proxy solicitation firm in connection with obtaining the Requisite Company Approval, ~~except for~~ Company shall bear 50% of such costs and expenses, and Parent shall bear 50% of such costs and expenses and Parent shall, promptly upon request by the ~~liability of~~ Company, reimburse the Company ~~in the case of fraud or a Willful~~ for such costs and ~~Material Breach of any covenant, agreement or obligation~~expenses.

Appears in 1 contract

Samples: Merger Agreement (Via Renewables, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If this Agreement is terminated under any of the circumstances described in paragraph (i) of this Section 8.3(b), the Company shall be required to pay to Parent the applicable Company Termination Fee at the time and subject to such other conditions as may be set forth in such paragraph. Subject to Section 8.2, Parent shall not be entitled to any termination fee, reimbursement of expenses, or other consideration in respect of any termination of this Agreement pursuant to any provision of this Article VIII. (i) If (a) Parent terminates this Agreement pursuant to Section 8.1(c) (Change in Company ~~Change of~~ Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (ib) the Company terminates this Agreement pursuant to Section 8.1(d) (~~Parent Change of Recommendation),~~ Superior Proposal) or ~~(ii) Parent terminates this Agreement pursuant to~~ Section 8.1(f) (~~Parent Superior Proposal~~Intervening Event), then ~~Parent~~ the Company shall pay Parent the applicable Company ~~the Parent~~ Termination Fee in cash by wire transfer of immediately available funds to an account designated by Parent. If the ~~Company~~ fee shall be payable pursuant to clause (a) of the immediately preceding sentence, the fee shall be paid no later than three Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (3b) of the immediately preceding sentence, the fee shall be paid no later than two Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (~~i) (A~~a) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), ~~and~~ (b) on or before the date of any such termination a ~~Company~~ Competing ~~Proposal~~ Transaction shall have been publicly ~~announced or publicly~~ disclosed and not ~~been publicly withdrawn without qualification at least seven~~ withdrawn, (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (iic) within twelve ~~(12)~~ months after the date of such termination, the Company enters into a definitive ~~agreement~~ Agreement with respect to that Competing Transaction (which is a ~~Company Competing~~ Superior Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a ~~Company Competing Proposal~~Superior Proposal (other than one in which Parent, NuDevco Retail or Xx. Xxxxxxx (or their successors) have agreed in writing to participate in or participated in), then the Company shall pay the Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”Fee. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (gc) In no event shall Parent be entitled to receive more than one payment of ~~the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the~~ a Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of ~~(i)~~ Parent and Merger Sub against the Company and its Subsidiaries ~~against Parent and Merger Sub~~ and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of ~~fraud or~~ a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against by the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such ~~fraud or~~ Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions. (d) To the extent Company engages any proxy solicitation firm in connection with obtaining the Requisite Company Approval, ~~except for~~ Company shall bear 50% of such costs and expenses, and Parent shall bear 50% of such costs and expenses and Parent shall, promptly upon request by the ~~liability of~~ Company, reimburse the Company ~~in the case of fraud or a Willful~~ for such costs and ~~Material Breach of any covenant, agreement or obligation~~expenses.

Appears in 1 contract

Samples: Merger Agreement (Maxwell W Keith III)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (iito an account designated by the Company) no later than two (2) Business Days after notice of termination of this Agreement. (c) If Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by the Company) no later than two (2) Business Days after notice of termination of this Agreement. (d) If the Company terminates this Agreement pursuant to Section 8.1(f) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) no later than two (2) Business Days after notice of termination of this Agreement. (e) If Parent terminates this Agreement pursuant to Section 8.1(e) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (to an account designated by the ~~Company~~ Company) no later than ~~three~~ two (32) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order), and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(b)(ii) (~~Failure to Obtain~~ End Date) (and the Parent Stockholder ~~Approval~~Approval has been obtained but the Company Stockholder Approval has not been obtained) or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach), (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed or otherwise publicly communicated to the Company Board and not withdrawn prior to such date, and (iii) within nine (9) months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to any Company Competing Proposal (which is ultimately consummated) or consummates any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee. For purposes of this Section 8.3(f), any reference in the definition of Company Competing Proposal to “20%” or “80%” shall be deemed to be a reference to “50%.” (g) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (End Date) (and the Company Stockholder Approval has been obtained but the Parent Stockholder Approval has not been obtained) or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach), (ii) on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Parent Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the date of~~ such ~~termination~~date, and (iiiii) within ~~twelve~~ nine (129) months after the date of such termination, Parent or any Subsidiary of Parent enters into a definitive agreement with respect to a any Parent Competing Proposal (~~or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal~~which is ultimately consummated) or consummates a any Parent Competing Proposal, then Parent shall pay the Company the Parent Termination ~~Fee less any amount previously paid by Parent pursuant to Section 8.3(d)~~Fee. For purposes of this Section ~~8.3(f~~8.3(g), any reference in the definition of Parent Competing Proposal to “1520%” or “80%” shall be deemed to be a reference to “~~more than~~ 50%.” (h) If (i) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv) (Failure to Obtain Company Stockholder Approval), (ii) on or before the date of the Company Stockholders Meeting a Company Competing Proposal shall have been publicly announced or publicly disclosed and not withdrawn prior to such date, and (iii) within nine (9) months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to any Company Competing Proposal (which is ultimately consummated) or consummates any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee. For purposes of this Section 8.3(h), any reference in the definition of Company Competing Proposal to “20%” or “80%” shall be deemed to be a reference to “50%.”. (gi) If (i) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(v) (Failure to Obtain Parent Stockholder Approval), (ii) on or before the date of the Parent Stockholders Meeting a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not withdrawn prior to such date, and (iii) within nine (9) months after the date of such termination, Parent or any Subsidiary of Parent enters into a definitive agreement with respect to any Parent Competing Proposal (which is ultimately consummated) or consummates any Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee. For purposes of this Section 8.3(i), any reference in the definition of Parent Competing Proposal to “20%” or “80%” shall be deemed to be a reference to “50%.” (j) In no event shall Parent be entitled to receive more than one payment of ~~the~~ a Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of ~~the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the~~ a Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails promptly to ~~promptly~~ pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the Prime rate of ~~8% per annum.~~ interest of Citibank, N.A. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 1 contract

Samples: Merger Agreement (Terra Property Trust, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (~~iii~~ii) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (~~Company~~ Superior Proposal), then the Company shall pay Parent the Company Termination ~~Fee~~Fee (in the form of either, ~~in each case, in~~ at the election of the Company: (x) cash by wire transfer of immediately available funds to an account designated by Parent and/or (y) Bitcoin to a Bitcoin wallet designated by Parent). If the fee is payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three (3) Business Days after ~~notice~~ the termination of this Agreement, and if the fee is payable pursuant to clause (ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a ~~Company~~ Competing Proposal shall have been publicly announced or publicly disclosed and not been ~~publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such terminationMeeting, and (ii12) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a ~~Company~~ Competing Proposal or consummates a Competing Proposal (in each case, whether or ~~publicly approves or recommends~~ not such Competing Proposal is the same Competing Proposal referred to ~~the stockholders of the Company or otherwise does not oppose,~~ in ~~the case of a tender or exchange offer, a Company Competing Proposal~~clause (i) ~~or consummates a Company Competing Proposal~~above), then the Company shall pay Parent the Company Termination Fee ~~less any amount previously paid~~ (in the form of either, at the election of the Company: (x) cash by wire transfer of immediately available funds to an account designated by Parent and/or (y) Bitcoin to a Bitcoin wallet designated by Parent) no later than three (3) Business Days after the ~~Company pursuant~~ earlier to ~~Section 8.3(d)(i)~~occur of the entry into such definitive agreement or consummation of such Competing Proposal. For purposes of this Section ~~8.3(e~~8.3(c), any reference in the definition of ~~Company~~ Competing Proposal to “15%” shall be deemed to be a reference to “~~more than 80~~50%”. ~~(f)~~ ” If ~~(i) (A) Parent or~~ the Company ~~terminates this Agreement pursuant~~ fails to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall timely pay the Company ~~the Parent~~ Termination Fee ~~less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of~~ under this Section ~~8.3(f)~~8.3(c) or Section 8.3(b) and Parent obtains a final, ~~any reference in~~ non-appealable judgment against the ~~definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of~~ Company for the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Feeany portion thereof, then the ~~amount of~~ Company shall pay Parent (in addition to the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt portion thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party deemed owing) its ~~reasonable out-of-pocket~~ costs and expenses (including reasonable ~~attorneys’~~ and documented out-of-pocket attorney’s fees and ~~expenses~~disbursements) ~~incurred~~ in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligationsuit.

Appears in 1 contract

Samples: Merger Agreement (Stronghold Digital Mining, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each ~~Party~~ party shall ~~pay~~ bear its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section ~~8.1(c~~7.1(c) (~~Company~~ Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (~~iii~~ii) the Company terminates this Agreement pursuant to Section ~~8.1(e~~7.1(d) (~~Company~~ Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by Parent. If the ~~Company~~ fee shall be payable pursuant to clause (i) of the immediately preceding sentence, the fee shall be paid no later than three Business Days after notice of termination of this Agreement, and if the fee shall be payable pursuant to clause (3ii) of the immediately preceding sentence, the fee shall be paid contemporaneously with such termination of this Agreement. (c) If (i) either the Company or Parent terminates this Agreement pursuant to Section 7.1(b)(iv) (Failure to Obtain Company Stockholder Approval), (ii) Parent terminates this Agreement pursuant to Section 7.1(b)(iii) (Company Terminable Breach), or (iii) Parent terminates this Agreement pursuant to Section 7.1(b)(ii) (Termination Date) and before the date of such termination pursuant to this clause (iii) a Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board, then the Company shall pay Parent the Parent Expenses no later than three Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~7.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval~~ Approval) or ~~Confirmation Order~~(B) Parent terminates this Agreement pursuant to Section 7.1(b)(iii) (Company Terminable Breach), ~~and~~ or (C) Parent or Company terminates this Agreement pursuant to Section 7.1(b)(ii) (Termination Date), (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company ~~Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination~~Board, and (iiiii) within ~~twelve (12)~~ 12 months after the date of such termination, the Company enters into a definitive ~~agreement~~ Agreement with respect to ~~a Company~~ such Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates ~~a Company~~ such Competing Proposal, then the Company shall pay Parent the Company Termination ~~Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i)~~Fee. For purposes of this Section ~~8.3(e~~7.3(d), any reference in the definition of ~~Company~~ Competing Proposal to “1520%” shall be deemed to be a reference to “more than 8050%.”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (ge) In no event shall Parent be entitled to receive more than one payment of ~~the~~ a Company Termination Fee ~~or more than~~ and one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of ~~the Parent Termination Fee or more than one payment of~~ Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section ~~8.3~~ 7.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~7.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in Section 7.1(d), Section 7.2(b), and this Section ~~8.3, Section 6.24(h)~~ 7.3 and the specific performance remedies set forth in Section ~~9.11~~ 8.11 shall be the sole and exclusive remedies of (iA) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach)consummated, and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation~~transactions contemplated hereby; and (iiB) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach)consummated, and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions~~transactions contemplated hereby. For the avoidance of doubt, ~~except for~~ any such monetary damages hereunder shall be solely the ~~liability~~ responsibility of the Company in or Parent, as applicable, and not any Subsidiary of such Person or any of such Person’s or Subsidiary’s respective former, current or future general or limited partners, stockholders, managers, members, Representatives or Affiliates. If the ~~case~~ Company is required to pay the Company Termination Fee pursuant to Section 7.3(d)(i)(B) or Parent Expenses pursuant to Section 7.3(c)(ii), then such payments shall be taken into account with respect to the determination of ~~fraud or a~~ monetary damages with respect to any Willful and Material Breach by the Company of any covenant, agreement or ~~obligation~~obligation hereunder or Fraud. Notwithstanding any provision in this Agreement to the contrary, the total amount of monetary damages for which the Company or Parent shall be liable under this Agreement shall in no event be greater than $35,000,000.

Appears in 1 contract

Samples: Merger Agreement (Energy XXI Gulf Coast, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this Agreement ~~(including payment of~~ or as otherwise agreed to in writing by the ~~Transaction Expense Fee)~~Parties, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, regardless of whether ~~or not~~ the Merger shall be consummated, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne ~~equally~~ by ~~Parent and the Company~~Parent. (b) If this Agreement is terminated under circumstances that satisfy subparagraphs (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) ~~Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or~~ and (iii) ~~the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal)~~below, then the Company shall pay Parent (or its designee) the ~~Company~~ Termination ~~Fee,~~ Fee within two Business Days of any event specified in ~~each case~~subparagraph (iii) below taking place, in cash by wire transfer of immediately available funds to an account designated by ~~Parent no later than three (3) Business Days after notice of termination of this Agreement.~~Parent: ~~(c) If~~ (i) ~~the Company terminates this Agreement pursuant to Section 8.1(d~~either (A) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (iSection 10.1(b)(i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (AB) Parent ~~or the Company~~ terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~10.1(c)(ii); (ii) ~~(Failure to Obtain Company Stockholder Approval or Confirmation Order), and~~ after the date of this Agreement but on or before the date of any such ~~termination~~ termination, a ~~Company~~ Competing Proposal shall have been ~~publicly~~ announced or disclosed (publicly ~~disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior~~ or to the Company ~~Stockholders Meeting~~ or ~~(B)~~ the Company ~~terminates this Agreement pursuant to Section 8.1(b)(ii~~Board) that was not withdrawn; and (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (iiiii) within ~~twelve (12)~~ 12 months after the date of such termination, the Company enters into a definitive agreement with respect to ~~a Company~~ such Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, ~~a Company~~ such Competing Proposal) or the Company consummates ~~a Company~~ such Competing Proposal~~, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i)~~. For purposes of this Section ~~8.3(e~~10.3(b), any reference in the definition of ~~Company~~ Competing Proposal to “~~15%~~20% or more” shall be deemed to be a reference to “more than 8050%.” (c) If Parent terminates this Agreement pursuant to Section 10.1(c)(i), then the Company shall pay Parent (or its designee) the Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than two Business Days after notice of termination of this Agreement. (fd) If ~~(i) (A) Parent or~~ the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval~~10.1(d)(i), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company ~~will not be entitled to also receive a payment of~~ shall pay Parent (or its designee) the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee ~~payable~~ in cash by wire transfer of immediately available funds to ~~the Company shall be reduced~~ an account designated by ~~the Company Expenses. If~~ Parent ~~is required to pay the Company the Parent Termination Fee, then Parent shall concurrently~~ contemporaneously with such ~~payment reimburse the Company for the Transaction Expense Fee.~~ termination of this Agreement. (e) The Parties ~~agree~~ acknowledge (i) that the agreements contained in this Section ~~8.3~~ 10.3 are an integral part of the Transactions, (ii) that the Termination Fee is not a penalty, but a reasonable amount that will compensate Parent and Merger Sub in the circumstances in which such payment is 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 and (iii) that, without these agreements, the Parties would not enter into this Agreement~~. If a Party~~ ; accordingly, if the Company fails to ~~promptly~~ timely pay ~~the~~ any amount due ~~by it~~ pursuant to this Section ~~8.3 or Section 6.24(h)~~10.3, and, in order to obtain the payment, Parent commences a Proceeding that results in a judgment against the Company, the Company shall pay Parent its reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees) in connection with such suit, together with interest ~~shall accrue~~ on such amount ~~from~~ at the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be ~~paid~~ made through the date such payment was actually received. (f) Subject in all cases to Section 10.2 and payment by the Company of any costs, expenses and interest pursuant to ~~the terms of this Agreement until the date of payment at the rate of 8% per annum. If~~Section 10.3(e), in ~~order to obtain such payment,~~ circumstances where the ~~other Party commences a Proceeding that results~~ Termination Fee is paid in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection accordance with ~~such Proceeding. The Parties agree that the monetary remedies set forth in~~ this Section ~~8.3~~10.3, ~~Section 6.24(h) and~~ Parent’s receipt of the ~~specific performance remedies set forth in Section 9.11~~ Termination Fee from or on behalf of the Company shall be ~~the~~ Parent’s and Merger Sub’s sole and exclusive ~~remedies~~ remedy (whether based in contract, tort or strict liability, by the enforcement of (iany assessment, by any legal or equitable proceeding, by virtue of any statute, regulation or applicable laws or otherwise) against the Company and its Subsidiaries ~~against Parent and Merger Sub~~ and any of their respective former, current or future direct or indirect equity holders, general or limited partners, controlling persons, stockholders, members, managers, directors, officers, ~~shareholders~~employees, ~~Representatives~~ agents, affiliates or ~~Affiliates~~ assignees for ~~any loss~~ all losses and damages suffered as a result of the failure of the Merger or the other Transactions to be ~~consummated except in the case of fraud~~ consummated, for any breach or ~~a Willful and Material Breach of any covenant, agreement~~ failure to perform hereunder or ~~obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach)~~otherwise, and upon payment of such amount, ~~none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates~~ no such Person shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 1 contract

Samples: Merger Agreement (National Western Life Group, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 9.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section ~~8.1(c~~9.1(c) (Company Change of Recommendation), ~~Section 8.1(h)(iii~~then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) ~~(Modification~~ no later than three Business Days after notice of ~~Prepackaged Plan)~~ termination of this Agreement or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii~~) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii~~) the Company terminates this Agreement pursuant to Section ~~8.1(e~~9.1(d) (Company Superior Proposal), then the Company shall pay Parent the Company Termination ~~Fee~~Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) concurrently with notice of termination of this Agreement. (c) (i) If (A) either the Company or Parent terminates this Agreement pursuant to Section 9.1(b)(iv) (Failure to Obtain Company Stockholder Approval) or (B) Parent terminates this Agreement pursuant to Section 9.1(b)(iii) (Company Terminable Breach), then the Company shall pay Parent the Parent Expenses or (ii) if the Company terminates this Agreement pursuant to (x) Section 9.1(b)(iii) (Parent Terminable Breach), or (y) Section 9.1(e) (Failure to Effectuate Reverse Stock Split or Reclassification or Failure to Effectuate Share Repurchase Program) or Section 9.1(b)(ii) (End Date) in circumstances in which the Company could have terminated pursuant to Section 9.1(e), then Parent or, if the Company terminates this Agreement pursuant to Section 9.1(b)(iii) (Parent Terminable Breach) as a result of a failure of a condition set forth in Section 8.3(a) or (b) solely on the part of Parent Manager, then Parent Manager, shall pay the Company the Company Expenses, in each case, in cash by wire transfer of immediately available funds ~~to an account designated by Parent no later than three~~ (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the ~~Company~~ receiving party) no later than three ~~(3)~~ Business Days after notice of termination of this Agreement. (d) If (i) (A) either the Company or Parent terminates this Agreement pursuant to ~~(i)~~ Section ~~8.1(b)(iv)(A~~9.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval) ~~and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses~~ or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (AB) Parent ~~or the Company~~ terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~9.1(b)(iii) (~~Failure to Obtain~~ Company ~~Stockholder Approval or Confirmation Order~~Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed or otherwise publicly communicated to the Company Board or the Company Stockholders (and such Company Competing Proposal shall not have been publicly withdrawn on a bona fide basis without qualification (x) at least ~~seven~~ three (73) Business Days prior to the Company Stockholders Meeting or (~~B) the Company terminates this Agreement~~ with respect to a termination pursuant to Section ~~8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~9.1(b)(iv)) or ~~Parent terminates this Agreement pursuant~~ (y) prior to ~~Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before~~ the date of any such termination (with respect to a ~~Company Competing Proposal shall have been announced, disclosed or otherwise communicated~~ termination pursuant to ~~the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination~~Section 9.1(b)(iii)), and (iiiii) within ~~twelve (12)~~ 12 months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to a any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~9.3(c). For purposes of this Section ~~8.3(e~~9.3(d), any reference in the definition of Company Competing Proposal to “1520%” or “80%” shall be deemed to be a reference to “~~more than 80~~50%.”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (ge) In no event shall ~~Parent~~ the Company be ~~entitled~~ required to ~~receive more than one payment of~~ pay the Company Termination Fee or the Parent Expenses on more than one ~~payment of Parent Expenses~~occasion. If In addition, if Parent receives ~~the~~ a full Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall ~~the Company~~ Parent be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company ~~the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee~~Expenses on more than one occasion. The ~~Parties~~ parties agree that the agreements contained in this Section ~~8.3~~ 9.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~9.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 87% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 9.3 and the specific performance remedies set forth in Section ~~9.11~~ 10.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and ~~Merger Sub and~~ any of ~~their respective~~ its former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, ~~none of~~ neither Parent ~~or Merger Sub or~~ nor any of ~~their respective~~ its former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and ~~Merger Sub~~ Buyer against the Company and its Subsidiaries and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation. (f) In the event that the Company is required to pay the Company Termination Fee: (i) The amount payable to Parent in any tax year of Parent shall not exceed the lesser of (A) the Company Termination Fee payable to Parent, and (B) the sum of (1) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code for the relevant tax year, determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”) and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in each case, as determined by Parent’s independent accountants, plus (2) in the event that Parent received either (x) a letter from Parent’s counsel indicating that Parent has received a ruling from the IRS as described below or (y) an opinion from Parent’s outside counsel as described below, an amount equal to the excess of the Company Termination Fee, less the amount payable under clause (A) above. (ii) To secure the Company’s obligation to pay the amounts described in Section 9.3(f)(i), the Company shall deposit into escrow the amount in cash equal to the Company Termination Fee with an escrow agent selected by the Company on such terms (subject to this Section 9.3) as shall be mutually and reasonably agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Company Termination Fee pursuant to this Section 9.3 shall be made at the time the Company is obligated to pay the Company Termination Fee. The escrow agent shall provide that the Company Termination Fee in escrow or any portion thereof shall not be released to Parent unless the escrow agent receives any one or a combination of the following: (i) a letter from Parent’s independent accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) or 856(c)(3) of the Code determined as if the payment of such amount did not constitute Qualifying Income and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that (A) Parent has received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code or (B) Parent’s outside counsel has rendered a legal opinion to the effect that the receipt by Parent of the Company Termination Fee should either constitute Qualifying Income or should be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code, in which case the escrow agent shall release the remainder of the Company Termination Fee to Parent. The Company agrees to amend this Section 9.3(f) at the reasonable request of Parent in order to (1) maximize that portion of the Company Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code or (2) assist Parent in obtaining a favorable ruling from the IRS or legal opinion from its outside counsel, in each case, as described in this Section 9.3(f)(ii). Any amount of the Company Termination Fee that remains unpaid as of the end of a taxable year shall be paid as soon as possible during the following taxable year, subject to the foregoing limitation of this Section 9.3(f). (g) Notwithstanding anything to the contrary herein, Parent and Buyer, on the one hand, and Parent Manager, on the other hand, shall be severally liable in respect of its obligations under this Agreement, on a several, and not joint, basis, and neither the Parent nor Buyer shall be responsible for the obligations of Parent Manager hereunder (including the obligation to pay the Per Common Share Additional Manager Consideration), nor shall Parent Manager be responsible for the obligations of Parent and Buyer hereunder.

Appears in 1 contract

Samples: Merger Agreement (Capstead Mortgage Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), ~~Section 8.1(h)(iii~~then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) ~~(Modification~~ no later than three Business Days after notice of ~~Prepackaged Plan)~~ termination of this Agreement or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii~~) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii~~) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (to an account designated by ~~the Company no later than three (3~~Parent) ~~Business Days after~~ concurrently with notice of termination of this Agreement~~. (d) If either~~ , unless Parent shall not have designated such account to the Company ~~or Parent terminates this Agreement~~ at least twenty-four (24) hours before the Company delivers notice of termination pursuant to Section 8.1(d) in response to a written request for such information delivered by the Company at least twenty-four (i24) hours before such deadline (in which case, the Company’s termination pursuant to Section ~~8.1(b)(iv)(A~~8.1(d) ~~(Failure~~ shall be effective immediately upon delivery of such notice to ~~Obtain~~ Parent and the Company ~~Stockholder Approval or Confirmation Order) and~~ shall pay the Company Termination Fee ~~is not otherwise payable by the Company pursuant~~ to ~~this Section 8.3, then the Company shall pay~~ Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than ~~three (3)~~ one Business ~~Days~~ Day after ~~notice of termination of this Agreement~~the date Parent designates an account to the Company). (ec) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(ii) (~~Failure~~ End Date) (and the Company Shareholder Approval has not been obtained) or (B) Parent terminates this Agreement pursuant to ~~Obtain~~ Section 8.1(b)(iii) (Company ~~Stockholder Approval or Confirmation Order~~Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Company Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the~~ such date ~~of such termination,~~ and (iiiii) within ~~twelve (12)~~ nine months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement ~~with respect~~ to a effect any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee ~~less any amount previously paid~~ in cash by wire transfer of immediately available funds (to an account designated by Parent) no later than three Business Days after the ~~Company pursuant to Section 8.3(d)(i~~occurrence of an event described in the foregoing clause (iii). For purposes of this Section ~~8.3(e~~8.3(c), any reference in the definition of Company Competing Proposal to “1525%” or “75%” shall be deemed to be a reference to “~~more than 80~~50%.”. (fd) If (i~~) (A~~) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(b)(iv) (Failure to Obtain ~~Parent Stockholder~~ Company Shareholder Approval), ~~and~~ (ii) on or before the date of ~~any such termination~~ the Company Shareholders Meeting a ~~Parent~~ Company Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the such date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (iiiii) within ~~twelve (12)~~ nine months after the date of such termination, ~~Parent~~ the Company or any Subsidiary of the Company enters into a definitive agreement ~~with respect~~ to ~~a Parent~~ effect any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal)~~ or consummates ~~a Parent~~ any Company Competing Proposal, then ~~Parent~~ the Company shall pay Parent the Company ~~the Parent~~ Termination Fee ~~less any amount previously paid~~ in cash by ~~Parent pursuant~~ wire transfer of immediately available funds (to ~~Section 8.3(d~~an account designated by Parent) no later than three Business Days after the occurrence of an event described in the foregoing clause (iii). For purposes of this Section ~~8.3(f~~8.3(d), any reference in the definition of ~~Parent~~ Company Competing Proposal to “1525%” or “75%” shall be deemed to be a reference to “~~more than 80~~50%.”. (ge) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 85% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or Willful ~~and Material~~ Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful ~~and Material~~ Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation. (f) In the event that the Company is required to pay the Company Termination Fee: (i) The amount payable to Parent in any tax year of Parent shall not exceed the lesser of (A) the Company Termination Fee payable to Parent, and (B) the sum of (1) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code for the relevant tax year, determined as if the payment of such amount did not constitute Qualifying Income and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in each case, as determined by Parent’s independent accountants, plus (2) in the event that Parent received either (x) a letter from Parent’s counsel indicating that Parent has received a ruling from the IRS as described below or (y) an opinion from Pxxxxx’s outside counsel as described below, an amount equal to the excess of the Company Termination Fee less the amount payable under clause (1) above. (ii) To secure the Company’s obligation to pay the amounts described in Section 8.3(f)(i), the Company shall deposit into escrow the amount in cash equal to the Company Termination Fee, with an escrow agent selected by the Company on such terms (subject to this Section 8.3) as shall be mutually and reasonably agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Company Termination Fee pursuant to this Section 8.3 shall be made at the time the Company is obligated to pay the Company Termination Fee. The escrow agent shall provide that the Company Termination Fee in escrow or any portion thereof shall not be released to Parent unless the escrow agent receives any one or a combination of the following: (i) a letter from Parent’s independent accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) or 856(c)(3) of the Code determined as if the payment of such amount did not constitute Qualifying Income and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that (A) Parent has received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code or (B) Parent’s outside counsel has rendered a legal opinion to the effect that the receipt by Parent of the Company Termination Fee should either constitute Qualifying Income or should be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code, in which case the escrow agent shall release the remainder of the Company Termination Fee to Parent. The Company agrees to amend this Section 8.3(f) at the reasonable request of Parent in order to (1) maximize that portion of the Company Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code or (2) assist Parent in obtaining a favorable ruling from the IRS or legal opinion from its outside counsel, in each case, as described in this Section 8.3(f)(ii). Any amount of the Company Termination Fee that remains unpaid as of the end of a taxable year shall be paid as soon as possible during the following taxable year, subject to the foregoing limitation of this Section 8.3(f).

Appears in 1 contract

Samples: Merger Agreement (Great Ajax Corp.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i)~~ Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation~~), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~) or Section ~~8.1(h)(iv~~8.1(d) (~~Withdrawal of Prepackaged Plan), (ii) Parent or~~ No Solicitation by the ~~Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal~~Company), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If either the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(iv) (Failure to Obtain Company Stockholder Approval), then the Company shall pay Parent the Parent Expense Amount, (i) immediately, and as a condition to the effectiveness of the Company’s termination of this Agreement, if terminated by the Company and (ii) no later than three (3) Business Days after notice of termination by Parent of this Agreement, if terminated by Parent; provided, however, if the Company terminates this Agreement pursuant to any provision of Section 8.1(b) and Parent was entitled to terminate pursuant to Section 8.1(c) (Company Change of Recommendation) or Section 8.1(d) (~~Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal~~No Solicitation by the Company), then ~~Parent~~ concurrently with, and as a condition to, any such termination, the Company shall pay or cause to be paid to Parent the Company Termination Fee (and not the Parent ~~Termination Fee~~ Expense Amount) in cash by wire transfer of immediately available funds to an account designated by ~~the Company no later than three (3) Business Days after notice of termination of this Agreement~~Parent. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such termination a ~~Company~~ Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (~~Outside~~ End Date~~) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach~~) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a ~~Company~~ Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a ~~Company~~ Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a ~~Company~~ Competing Proposal) or consummates a ~~Company~~ Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(c). ~~For purposes of this Section 8.3(e~~It is understood and agreed that with respect to the preceding clause (i) and (ii), any reference in the definition of ~~Company~~ Competing Proposal to “15ten percent (10%)” shall be deemed to be a reference to “~~more than 80~~fifty percent (50%)”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (ge) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent ~~Expenses~~Expense Amount. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent ~~Expenses. If Parent receives~~ Expense Amount; upon payment of ~~Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the~~ any Company Termination Fee, ~~then~~ any previously paid Parent Expense Amount shall be credited against the amount of the Company Termination Fee ~~payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the~~ The Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree agrees that (i) the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, ~~the Parties~~ Parent and Merger Sub would not enter into this ~~Agreement~~Agreement and (ii) the payments contemplated by this Section 8.3 are intended to compensate Parent 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. If ~~a Party~~ the Company fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, ~~the other Party~~ Parent commences a Proceeding that results in judgment for ~~such Party~~ Parent for such amount, the ~~defaulting Party~~ Company shall pay ~~the other Party~~ Parent its reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. ~~The Parties agree that~~ For the ~~monetary~~ avoidance of doubt, Parent may simultaneously pursue: (i) a grant of specific performance pursuant to Section 9.11, (ii) its rights and remedies ~~set forth~~ at law, in equity, in contract, in tort or otherwise in the event of a material or willful breach of this Agreement, and (iii) payment of the Company Termination Fee pursuant to this Section 8.3; provided, however, that, in the event the Company Termination Fee becomes payable to Parent pursuant to this Section 8.3, ~~Section 6.24(h) and~~ each of the ~~specific performance remedies set forth in Section 9.11 shall be~~ Parties hereto agree that upon the ~~sole and exclusive remedies~~ Company’s payment of ~~(i)~~ the Company ~~and its Subsidiaries against~~ Termination Fee to Parent, the Company shall have no further liability to Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any ~~covenant, agreement or obligation (~~kind in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out respect of this Agreement ~~or the Transactions, except for the liability of Parent in the case of fraud or a Willful~~ and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a ~~Willful and Material Breach~~ willful or material breach of any covenant, agreement or ~~obligation~~obligation set forth herein.

Appears in 1 contract

Samples: Merger Agreement (Diamondback Energy, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (~~Agreement, including ~~payment of the Transaction Expense Fee)~~in this Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the ~~Transactions~~transactions contemplated by this Agreement, whether or not the ~~Merger~~ Transactions shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i) Parent~~ Sabine Investor Holdings terminates this Agreement pursuant to (i) Section ~~8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~8.1(e) or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii) ~~Parent or the Company terminates this Agreement pursuant~~ Section 8.1(d) due to a Willful and Material Breach of Section ~~8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal)~~6.2, then ~~the Company~~ Forest shall pay ~~Parent~~ Sabine Holdings the ~~Company~~ Termination Fee~~, in each case~~, in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Sabine Holdings, no later than ~~three~~ two (32) Business Days after ~~notice of termination of this Agreement~~such termination. (c) If ~~(i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent~~ Forest terminates this Agreement pursuant to Section 8.1(f) and (~~Parent Superior Proposal~~i) prior to the Forest Stockholder Meeting, there shall have been publicly announced, disclosed or otherwise made known a bona fide Acquisition Proposal for Forest that has not been withdrawn at least five (5) days prior to the Forest Stockholder Meeting; and (ii) within twelve (12) months after such termination, Forest enters into a definitive agreement with respect to or consummates any Acquisition Proposal (provided, that, for purposes of this clause (ii), any reference in the definition of Acquisition Proposal to 15% shall be deemed to be a reference to 50%), then ~~Parent~~ on the earliest of (A) the date of entering into such definitive agreement or (B) the closing or other consummation of such Acquisition Proposal, Forest shall pay Sabine Holdings the ~~Company the Parent~~ Termination ~~Fee~~ Fee, in cash by wire transfer of immediately available funds to an account designated by ~~the Company no later than three (3) Business Days after notice of termination of this Agreement~~Sabine Holdings. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company Forest terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order~~8.1(g), ~~and on or before~~ then Forest shall pay Sabine Holdings the ~~date~~ Termination Fee, in cash by wire transfer of ~~any such~~ immediately available funds to an account designated by Sabine Holdings, upon termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and ~~on or before the date of any such termination~~ as a ~~Company Competing Proposal shall have been announced, disclosed or otherwise communicated~~ condition to the ~~Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date~~ effectiveness of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Forest Oil Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (~~Agreement, including ~~payment of the Transaction Expense Fee)~~in this Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the ~~Transactions~~transactions contemplated by this Agreement, whether or not the ~~Merger~~ Transactions shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i) Parent~~ New Sabine Holdings terminates this Agreement pursuant to (i) Section ~~8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~8.1(e) or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii) ~~Parent or the Company terminates this Agreement pursuant~~ Section 8.1(d) due to a Willful and Material Breach of Section ~~8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal)~~6.2, then ~~the Company~~ Forest shall pay ~~Parent~~ Sabine Holdings the ~~Company~~ Termination Fee~~, in each case~~, in cash by wire transfer of immediately available funds to an account designated by ~~Parent~~ Sabine Holdings, no later than ~~three~~ two (32) Business Days after ~~notice of termination of this Agreement~~such termination. (c) If ~~(i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent~~ Forest terminates this Agreement pursuant to Section 8.1(f) and (~~Parent Superior Proposal~~i) prior to the Forest Stockholder Meeting, there shall have been publicly announced, disclosed or otherwise made known a bona fide Acquisition Proposal for Forest that has not been withdrawn at least five (5) days prior to the Forest Stockholder Meeting; and (ii) within twelve (12) months after such termination, Forest enters into a definitive agreement with respect to or consummates any Acquisition Proposal (provided, that, for purposes of this clause (ii), any reference in the definition of Acquisition Proposal to 15% shall be deemed to be a reference to 50%), then ~~Parent~~ on the earliest of (A) the date of entering into such definitive agreement or (B) the closing or other consummation of such Acquisition Proposal, Forest shall pay Sabine Holdings the ~~Company the Parent~~ Termination ~~Fee~~ Fee, in cash by wire transfer of immediately available funds to an account designated by ~~the Company no later than three (3) Business Days after notice of termination of this Agreement~~Sabine Holdings. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company Forest terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order~~8.1(g), ~~and on or before~~ then Forest shall pay Sabine Holdings the ~~date~~ Termination Fee, in cash by wire transfer of ~~any such~~ immediately available funds to an account designated by Sabine Holdings, upon termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and ~~on or before the date of any such termination~~ as a ~~Company Competing Proposal shall have been announced, disclosed or otherwise communicated~~ condition to the ~~Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date~~ effectiveness of such termination, and (ii) within twelve (12) months after the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (fe) ~~If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval),~~ The parties acknowledge and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the ~~Transactions~~transactions contemplated by this Agreement, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the prime rate of ~~8% per annum~~X.X. Xxxxxx Xxxxx, N.A. in effect on the date such payment was required to be made. If, in order to obtain ~~such~~ payment, the other ~~Party~~ party commences a ~~Proceeding~~ suit that results in judgment for such ~~Party for such amount~~party, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its reasonable ~~out-of-pocket~~ costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such ~~Proceeding~~suit. ~~The Parties agree~~ Each of the parties further acknowledges that the ~~monetary remedies set forth~~ payment of the amounts by New Sabine Holdings and Forest specified in this Section ~~8.3~~8.3 is not a penalty, ~~Section 6.24(h)~~ but in each case is liquidated damages in a reasonable amount that will compensate Sabine Holdings (and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective formerNew Sabine Holdings, ~~current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except~~ in the case of a payment to Sabine Holdings) or Forest, as the case may be, in the circumstances in which such fees are payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby, which amount would otherwise be impossible to calculate with precision. In no event shall Forest be required to pay the Termination Fee more than once. The parties agree that, in the event that Sabine Holdings is entitled to receive the Termination Fee in accordance with the provisions herein and Forest pays the Termination Fee to Sabine Holdings, Forest has no further liability to New Sabine Holdings or Sabine Holdings of any kind in respect of this Agreement and the Transactions and the other transactions contemplated hereby; provided, however, that nothing in this sentence shall relieve any party of any liability for any damages resulting from or arising out of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligationAgreement.

Appears in 1 contract

Samples: Merger Agreement (Forest Oil Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i1) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation~~), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~) or Section ~~8.1(h)(iv~~8.1(b)(iii)(B) (~~Withdrawal~~ Company’s Breach of ~~Prepackaged Plan~~No Solicitation), ~~(ii) Parent or~~ then the Company ~~terminates~~ shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) no later than two Business Days after notice of termination of this Agreement ~~pursuant to Section 8.1(h)(i) (Termination of Support)~~ or (~~iii~~2) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d)(i) (Company Superior Proposal), then the Company shall pay Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds (to an account designated by ~~Parent no later than three (3~~Parent) ~~Business Days after~~ concurrently with notice of termination of this Agreement. (c) If ~~(i)~~ the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(d)(ii) (Parent Change of Recommendation), ) or ~~(ii) Parent terminates this Agreement pursuant to~~ Section ~~8.1(f~~8.1(b)(iii)(B) (~~Parent Superior Proposal~~Parent’s Breach of No Solicitation), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (to an account designated by the ~~Company~~ Company) no later than ~~three (3)~~ two Business Days after notice of termination of this Agreement. (d) (i) If (A) either the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (iEnd Date) (and the Parent Stockholder Approval has been obtained but the Company Stockholder Approval has not been obtained) or Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder ~~Approval~~ Approval), or ~~Confirmation Order~~(B) ~~and the Company Termination Fee is not otherwise payable by the Company~~ Parent terminates this Agreement pursuant to ~~this~~ Section ~~8.3~~8.1(b)(iii)(A) (Company Terminable Breach), then the Company shall pay Parent the Parent Expenses or (ii) if (A) either the Company or Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (End Date) (and the Company Stockholder Approval has been obtained but the Parent Stockholder Approval has not been obtained) or Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) ~~following~~ or (B) the ~~occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent~~ Company terminates this Agreement pursuant to ~~this~~ Section ~~8.3~~8.1(b)(iii)(A) (Parent Terminable Breach), then Parent shall pay the Company the Company ~~Expenses~~ Expenses, in each case, in cash by wire transfer of immediately available funds (to an account designated by the receiving party) no later than three ~~(3)~~ Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(ii) (~~Failure to Obtain~~ End Date) (and the Parent Stockholder Approval has been obtained but the Company Stockholder Approval has not been obtained) or ~~Confirmation Order~~(B) Parent terminates this Agreement pursuant to Section 8.1(b)(iii)(A) (Company Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Company Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the date of~~ such ~~termination~~date, and (iiiii) within ~~twelve (12)~~ 12 months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to a any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(d). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “1525%” shall be deemed to be a reference to “more than 8050%.” (f) If (i) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval), (ii) on or before the date of the Company Stockholders Meeting a Company Competing Proposal shall have been publicly announced or publicly disclosed and not withdrawn prior to such date, and (iii) within 12 months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to any Company Competing Proposal or consummates any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Company Competing Proposal to “25%” shall be deemed to be a reference to “more than 50%. (fg) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(b)(ii) (~~Failure to Obtain~~ End Date) (and the Company Stockholder Approval has been obtained but the Parent Stockholder ~~Approval~~Approval has not been obtained), ~~and~~ or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(iii)(A) (Parent Terminable Breach), (ii) on or before the date of any such termination a an Alternative Proposal or Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Parent Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the date of~~ such ~~termination~~date, and (iiiii) within ~~twelve (12)~~ 12 months after the date of such termination, Parent or any Subsidiary of Parent enters into a definitive agreement with respect to a any Alternative Proposal or Parent Competing Proposal ~~(or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal)~~ or consummates a any Alternative Proposal or Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “1525%” shall be deemed to be a reference to “more than 8050%.” (h) If (i) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), (ii) on or before the date of the Parent Stockholders Meeting an Alternative Proposal or a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not withdrawn prior to such date, and (iii) within 12 months after the date of such termination, Parent or a Subsidiary of Parent enters into a definitive agreement with respect to any Alternative Proposal or Parent Competing Proposal or consummates any Alternative Proposal or Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(h), any reference in the definition of Parent Competing Proposal to “25%” shall be deemed to be a reference to “more than 50%. (gi) In no event shall Parent be entitled to receive more than one payment of ~~the~~ a Company Termination Fee or ~~more than one payment of~~ Parent Expenses. If In addition, if Parent receives ~~the~~ a full Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of ~~the~~ a Parent Termination Fee or ~~more than one payment of~~ Company Expenses. If In addition, if the Company receives ~~the~~ a full Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails promptly to ~~promptly~~ pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 87% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 1 contract

Samples: Merger Agreement (CYS Investments, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (~~Agreement, including ~~payment of~~ in Section 8.1(b), or as otherwise agreed to in writing by the ~~Transaction Expense Fee)~~Parties, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, regardless of whether ~~or not~~ the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If this Agreement is terminated after the date hereof (i) by Parent ~~terminates this Agreement~~ pursuant to Section ~~8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~10.1(c)(i) or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii) ~~Parent or~~ by the Company ~~terminates this Agreement~~ pursuant to Section ~~8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal~~10.1(d)(i), then the Company shall pay or cause to be paid to Parent (or its designee) the Company Termination Fee in cash by wire transfer of immediately available funds to an account designated by Parent, in the case of clause (i), not later than the second (2nd) Business Day following such termination and, in the case of clause (ii), concurrently with such termination. (c) If (i), an Acquisition Proposal shall have been publicly made to the Company or shall have been publicly made directly to the holders of Common Shares generally or shall have otherwise become publicly known (and, in any such case, whether or not such Acquisition Proposal is conditional or withdrawn), (ii) thereafter, this Agreement is terminated by Parent or the Company pursuant to Section 10.1(b)(i) and (iii) prior to the date that is twelve (12) months after such termination, the Company consummates an Acquisition Proposal or the Company enters into a definitive agreement with respect to an Acquisition Proposal (whether or not such Acquisition Proposal is consummated), then the Company shall pay or cause to be paid to Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds to an account designated by Parent ~~no later~~ on the date of entry into a definitive agreement with respect to such Acquisition Proposal. For purposes of clause (iii), all references to “15% or more” in the definition of “Acquisition Proposal” shall be deemed to be references to “more than ~~three (3) Business Days after notice of termination of this Agreement~~50%.” (cd) If this Agreement is terminated (i) by the Company ~~terminates~~ pursuant to Section 10.1(d)(ii) (or by Parent or the Company pursuant to Section 10.1(b)(ii) at a time when the Company would have been entitled to terminate this Agreement pursuant to Section ~~8.1(d) (Parent Change of Recommendation~~10.1(d)(ii), ); or (ii) by the Company pursuant to Section 10.1(d)(iii) (or by Parent ~~terminates~~ or the Company pursuant to Section 10.1(b)(ii) at a time when the Company would have been entitled to terminate this Agreement pursuant to Section ~~8.1(f) (Parent Superior Proposal~~10.1(d)(iii)), ~~then~~ then, in each case, Parent shall pay or cause to be paid to the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to ~~an account designated by~~ the Company no not later than ~~three~~ the second (32nd) Business ~~Days after notice of termination of this Agreement~~Day following such termination. (de) ~~If either~~ The Parties acknowledge that (i) the agreements contained in this Section 10.3 are an integral part of the Transactions, (ii) without these agreements, the Company, Parent and Merger Sub would not enter into this Agreement and (iii) each of the Company Termination Fee and the Parent Termination Fee is not a penalty, but is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case may be, 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 or Parent, as the case may be, fails to timely pay any amount due pursuant to Section 10.3 and, in order to obtain such payment, either Parent ~~terminates~~ or the Company, as the case may be, commences a suit that results in a judgment against the other Party for the payment of any amount set forth in Section 10.3, such paying Party shall pay the other Party the amount of the reasonable and documented out-of-pocket costs and expenses of the other Party in connection with such suit, together with interest on such amount at the annual rate of the prime rate as published in The Wall Street Journal in effect on the date such payment was required to be made plus five percent (5%) through the date such payment was actually received, or such lesser rate as is the maximum permitted by applicable Law; provided, however, that in no event shall either Party’s aggregate obligations under this Section 10.3(e) exceed $5,000,000. (f) Parent and Merger Sub agree that, if (and only if) upon any termination of this Agreement pursuant to ~~(i)~~ Section ~~8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and~~ 10.1 under circumstances where the Company Termination Fee is ~~not otherwise~~ properly payable by the Company pursuant to this Section ~~8.3, then the~~ 10.3 and such Company ~~shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent~~ Termination Fee is ~~not otherwise payable by Parent pursuant to this~~ paid in full, except as provided in Section ~~8.3~~10.2 and Section 11.10, ~~then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If~~ (i) ~~(A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order)~~Parent, and on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such terminationMerger Sub, the ~~Company enters into a definitive agreement with respect to a Company Competing Proposal (~~Equity Investors, the Guarantor or ~~publicly approves or recommends to the stockholders~~ any of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. If a Party fails to promptly pay the amount due by it pursuant to this Section 8.3 or Section 6.24(h), interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per annum. If, in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their foregoing’s respective former, current or ~~future~~ future, direct or indirect, directors, officers, ~~shareholders~~employees, ~~Representatives~~ partners, managers, equityholders, members, stockholders, advisors, Affiliates, Representatives, successors or ~~Affiliates for any loss suffered as a result of~~ assigns (collectively, the ~~failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only~~ “Parent ~~and Merger Sub~~ Related Parties”) shall be ~~liable for damages for such fraud~~ precluded from any other remedy against the Company or ~~Willful~~ the Company Related Parties, at law or in equity or otherwise relating to or arising out of this Agreement (and ~~Material Breach~~the actual or purported termination hereof) or the Transactions (and the abandonment thereof), ~~and upon payment of such amount,~~ (ii) none of Parent or ~~Merger Sub~~ the Parent Related Parties shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of its Subsidiaries or any of their respective former, current or future directors, officers, employees, partners, managers, members, shareholders, equityholders or Affiliates or their respective Representatives or ~~Affiliates~~ successors or assigns (collectively, the “Company Related Parties”) in connection with this Agreement or the Transactions, (iii) Parent’s receipt of the payment of the Company Termination Fee pursuant to Section 10.3 in circumstances where such fee is properly payable pursuant to the terms thereof shall constitute the sole and exclusive remedy of the Parent Related Parties for all losses and damages suffered as a result of the failure of the Transactions to be consummated, and (iv) upon payment of the Company Termination Fee pursuant to Section 10.3 in circumstances where such fee is properly payable pursuant to the terms thereof, none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions~~Transactions (except that the Company shall also be obligated with respect to Section 10.3(e)). In no event shall the Company be required to pay the Company Termination Fee on more than one occasion. For the avoidance of doubt, ~~except for~~ if the Closing does not occur, the total aggregate liability of ~~Parent~~ the Company Related Parties relating to, directly or indirectly, or arising out of or in connection with this Agreement or the ~~case~~ Transactions (or the abandonment or termination hereof or thereof), any breach, default or failure to perform hereunder or the failure of ~~fraud or a~~ the Transactions to be consummated (including any Willful and Material Breach and, to the fullest extent permitted by Delaware Law, fraud) shall not exceed an amount equal to the sum of (x) the amount of the Company Termination Fee, plus (y) the enforcement expenses set forth in Section 10.3(e). (g) The Company agrees that, if (and only if) upon any ~~covenant~~termination of this Agreement pursuant to Section 10.1 under circumstances where the Parent Termination Fee is properly payable by Parent pursuant to this Section 10.3 and such Parent Termination Fee is paid in full, ~~agreement~~ except as provided in Section 10.2 and Section 11.10, (i) the Company Related Parties shall be precluded from any other remedy against Parent or ~~obligation;~~ the Parent Related Parties or the Financing Sources, at law or in equity or otherwise relating to or arising out of this Agreement (and the actual or purported termination hereof) or the Transactions (and the abandonment thereof), the Commitment Letters, the Limited Guarantees or any matter forming the basis for such termination, (ii) ~~Parent and Merger Sub~~ none of the Company or the Company Related Parties shall seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Parent Related Parties or the Financing Sources in connection with this Agreement or the Transactions, (iii) the Company’s receipt of the payment of the Parent Termination Fee pursuant to Section 10.3 in circumstances where such fee is properly payable pursuant to the terms thereof shall constitute the sole and exclusive remedy of the Company Related Parties for all losses and ~~its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss~~ damages suffered as a result of the failure of the ~~Merger~~ Transactions to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach)consummated, and (iv) upon payment of the Parent Termination Fee pursuant to Section 10.3 in circumstances where such ~~amount~~fee is properly payable pursuant to the terms thereof, none of the ~~Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates~~ Parent Related Parties shall have any further liability or obligation relating to or arising out of this Agreement or the ~~Transactions~~Transactions (except that Parent and Merger Sub shall also be obligated with respect to Section 10.3(e)). Notwithstanding the foregoing, ~~except~~ but subject to the last three sentences of this Section 10.3(g), it is explicitly agreed that (A) nothing in this Section 10.3 shall impair the Company’s rights under Section 11.10 (including the right to compel specific performance pursuant to Section 11.10), (B) the parties to the Confidentiality Agreement shall remain obligated for, and the Company shall be entitled to remedies with respect to, breaches of the Confidentiality Agreement, (C) nothing in this Section 10.3 shall limit or otherwise affect the respective Guarantor’s obligations under and pursuant to the terms of any Limited Guarantee and (D) Parent and Merger Sub shall remain liable hereunder, and the Guarantors shall remain liable under the Limited Guarantees, for any obligations of Parent to pay the expense reimbursement and indemnification obligations of Parent contained in Section 8.9. In no event shall Parent be required to pay the Parent Termination Fee on more than one occasion. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, (1) while the Company may pursue both (x) a grant of specific performance or other equitable relief, subject in all respects to Section 11.10(b) and this Section 10.3(g), and (y) payment of the Parent Termination Fee under Section 10.3(d), under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance to cause the Closing to occur or other equitable relief, on the one hand, and payment of any monetary damages whatsoever and/or the payment of all or any portion of the Parent Termination Fee and/or any of the amounts, if any, as and when due, pursuant to Section 10.3(d), on the other hand and (2) if the Closing does not occur, the total aggregate liability of the ~~Company~~ Parent Related Parties relating to, directly or indirectly, or arising out of or in connection with this Agreement or the ~~case~~ Transactions (or the abandonment or termination hereof or thereof), any breach, default or failure to perform hereunder or the failure of ~~fraud or a~~ the Transactions to be consummated (including any Willful and Material Breach and, to the fullest extent permitted by Delaware Law, fraud) shall not exceed an amount equal to the sum of ~~any covenant~~(x) the amount of the Parent Termination Fee, ~~agreement or obligation~~plus (y) the obligations set forth in Section 8.9, plus (z) the enforcement expenses set forth in Section 10.3(e).

Appears in 1 contract

Samples: Merger Agreement (Envestnet, Inc.)

Expenses and Other Payments. ~~(a)~~ i. Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. ~~(b)~~ ii. If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (iito an account designated by the Company) no later than two (2) Business Days after notice of termination of this Agreement. iii. If Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by the Company) no later than two (2) Business Days after notice of termination of this Agreement. iv. If the Company terminates this Agreement pursuant to Section 8.1(f) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) no later than two (2) Business Days after notice of termination of this Agreement. v. If Parent terminates this Agreement pursuant to Section 8.1(e) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (to an account designated by the ~~Company~~ Company) no later than ~~three~~ two (32) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) vi. If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(ii) (~~Failure to Obtain~~ End Date) (and the Parent Stockholder Approval has been obtained but the Company Stockholder Approval has not been obtained) or ~~Confirmation Order~~(B) Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Company Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the date of~~ such ~~termination~~date, and (iiiii) within ~~twelve~~ nine (129) months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to a any Company Competing Proposal (~~or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal~~which is ultimately consummated) or consummates a any Company Competing Proposal, then the Company shall pay Parent the Company Termination ~~Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i)~~Fee. For purposes of this Section ~~8.3(e~~8.3(f), any reference in the definition of Company Competing Proposal to “1520%” or “80%” shall be deemed to be a reference to “~~more than 80~~50%.”. ~~(f)~~ vii. If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(b)(ii) (~~Failure to Obtain~~ End Date) (and the Company Stockholder Approval has been obtained but the Parent Stockholder ~~Approval~~Approval has not been obtained) or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Parent Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the date of~~ such ~~termination~~date, and (iiiii) within ~~twelve~~ nine (129) months after the date of such termination, Parent or any Subsidiary of Parent enters into a definitive agreement with respect to a any Parent Competing Proposal (~~or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal~~which is ultimately consummated) or consummates a any Parent Competing Proposal, then Parent shall pay the Company the Parent Termination ~~Fee less any amount previously paid by Parent pursuant to Section 8.3(d)~~Fee. For purposes of this Section ~~8.3(f~~8.3(g), any reference in the definition of Parent Competing Proposal to “1520%” or “80%” shall be deemed to be a reference to “~~more than~~ 50%.” viii. If (i) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv) (Failure to Obtain Company Stockholder Approval), (ii) on or before the date of the Company Stockholders Meeting a Company Competing Proposal shall have been publicly announced or publicly disclosed and not withdrawn prior to such date, and (iii) within nine (9) months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to any Company Competing Proposal (which is ultimately consummated) or consummates any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee. For purposes of this Section 8.3(h), any reference in the definition of Company Competing Proposal to “20%” or “80%” shall be deemed to be a reference to “50%.” ix. If (i) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(v) (Failure to Obtain Parent Stockholder Approval), (ii) on or before the date of the Parent Stockholders Meeting a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not withdrawn prior to such date, and (iii) within nine (9) months after the date of such termination, Parent or any Subsidiary of Parent enters into a definitive agreement with respect to any Parent Competing Proposal (which is ultimately consummated) or consummates any Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee. For purposes of this Section 8.3(i), any reference in the definition of Parent Competing Proposal to “20%” or “80%” shall be deemed to be a reference to “50%.” ~~(g) In~~ x. Xx no event shall Parent be entitled to receive more than one payment of ~~the~~ a Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of ~~the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the~~ a Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails promptly to ~~promptly~~ pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the Prime rate of ~~8% per annum.~~ interest of Citibank, N.A. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 1 contract

Samples: Merger Agreement (Western Asset Mortgage Capital Corp)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), ~~Section 8.1(h)(iii~~then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) ~~(Modification~~ no later than three Business Days after notice of ~~Prepackaged Plan)~~ termination of this Agreement or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii~~) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii~~) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (Company Superior Proposal), then the Company shall pay Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds (to an account designated by ~~Parent no later than three (3~~Parent) ~~Business Days after~~ concurrently with notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If either the Company or Parent terminates this Agreement pursuant to (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(ii) (~~Failure~~ End Date) (and the Company Shareholder Approval has not been obtained) or (B) Parent terminates this Agreement pursuant to ~~Obtain~~ Section 8.1(b)(iii) (Company ~~Stockholder Approval or Confirmation Order~~Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Company Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the~~ such date ~~of such termination,~~ and (iiiii) within ~~twelve (12)~~ nine months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement ~~with respect~~ to a effect any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a any Company Competing Proposal, then the Company shall pay Parent the Company Termination ~~Fee less any amount previously paid by the Company pursuant to Section 8.3(d)(i)~~Fee. For purposes of this Section ~~8.3(e~~8.3(c), any reference in the definition of Company Competing Proposal to “1525%” or “75%” shall be deemed to be a reference to “~~more than 80~~50%.”. (fd) If (i~~) (A~~) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(b)(iv) (Failure to Obtain ~~Parent Stockholder~~ Company Shareholder Approval), ~~and~~ (ii) on or before the date of ~~any such termination~~ the Company Shareholders Meeting a ~~Parent~~ Company Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the such date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (iiiii) within ~~twelve (12)~~ nine months after the date of such termination, ~~Parent~~ the Company or any Subsidiary of the Company enters into a definitive agreement ~~with respect~~ to ~~a Parent~~ effect any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal)~~ or consummates ~~a Parent~~ any Company Competing Proposal, then ~~Parent~~ the Company shall pay Parent the Company ~~the Parent~~ Termination ~~Fee less any amount previously paid by Parent pursuant to Section 8.3(d)~~Fee. For purposes of this Section ~~8.3(f~~8.3(d), any reference in the definition of ~~Parent~~ Company Competing Proposal to “1525%” or “75%” shall be deemed to be a reference to “~~more than 80~~50%.”. (ge) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 85% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or ~~a Willful~~ an intentional and ~~Material Breach~~ material breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or ~~Willful~~ intentional and ~~Material Breach~~material breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or ~~a Willful~~ an intentional and ~~Material Breach~~ material breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or ~~a Willful~~ an intentional and ~~Material Breach~~ material breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or ~~Willful~~ intentional and ~~Material Breach~~material breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or ~~a Willful~~ an intentional and ~~Material Breach~~ material breach of any covenant, agreement or obligation. (f) In the event that the Company is required to pay the Company Termination Fee: (i) The amount payable to Parent in any tax year of Parent shall not exceed the lesser of (A) the Company Termination Fee payable to Parent, and (B) the sum of (1) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code for the relevant tax year, determined as if the payment of such amount did not constitute income described in Sections 856(c)(2) or 856(c)(3) of the Code (“Qualifying Income”) and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in each case, as determined by Parent’s independent accountants, plus (2) in the event that Parent received either (x) a letter from Xxxxxx’s counsel indicating that Xxxxxx has received a ruling from the IRS as described below or (y) an opinion from Parent’s outside counsel as described below, an amount equal to the excess of the Company Termination Fee, less the amount payable under clause (1) above. (ii) To secure the Company’s obligation to pay the amounts described in Section 8.3(f)(i), the Company shall deposit into escrow the amount in cash equal to the Company Termination Fee with an escrow agent selected by the Company on such terms (subject to this Section 8.3) as shall be mutually and reasonably agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Company Termination Fee pursuant to this Section 8.3 shall be made at the time the Company is obligated to pay the Company Termination Fee. The escrow agent shall provide that the Company Termination Fee in escrow or any portion thereof shall not be released to Parent unless the escrow agent receives any one or a combination of the following: (i) a letter from Parent’s independent accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) or 856(c)(3) of the Code determined as if the payment of such amount did not constitute Qualifying Income and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that (A) Parent has received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code or (B) Parent’s outside counsel has rendered a legal opinion to the effect that the receipt by Parent of the Company Termination Fee should either constitute Qualifying Income or should be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code, in which case the escrow agent shall release the remainder of the Company Termination Fee to Parent. The Company agrees to amend this Section 8.3(f) at the reasonable request of Parent in order to (1) maximize that portion of the Company Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code or (2) assist Parent in obtaining a favorable ruling from the IRS or legal opinion from its outside counsel, in each case, as described in this Section 8.3(f)(ii). Any amount of the Company Termination Fee that remains unpaid as of the end of a taxable year shall be paid as soon as possible during the following taxable year, subject to the foregoing limitation of this Section 8.3(f). (g) Notwithstanding anything to the contrary herein, Parent and Xxxxxx Sub, on the one hand, and Parent Manager, on the other hand, shall be severally liable in respect of their obligations under this Agreement, on a several, and not joint, basis, and neither the Parent nor Merger Sub shall be responsible for the obligations of Parent Manager hereunder (including the obligation to pay the Per Share Cash Consideration), nor shall Parent Manager be responsible for the obligations of Xxxxxx and Xxxxxx Sub hereunder.

Appears in 1 contract

Samples: Merger Agreement (Arlington Asset Investment Corp.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of~~ Section 8.3 or separately between the ~~Transaction Expense Fee)~~parties, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), ~~Section 8.1(h)(iii~~then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) ~~(Modification~~ no later than three Business Days after notice of ~~Prepackaged Plan)~~ termination of this Agreement or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii~~) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii~~) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (to an account designated by ~~the Company no later than three (3~~Parent) ~~Business Days after~~ concurrently with notice of termination of this Agreement~~. (d) If either~~ , unless Parent shall not have designated such account to the Company ~~or Parent terminates this Agreement~~ at least twenty-four (24) hours before the Company delivers notice of termination pursuant to ~~(i)~~ Section ~~8.1(b)(iv)(A~~8.1(d) (~~Failure~~ in which case, the Company’s termination pursuant to ~~Obtain~~ Section 8.1(d) shall be effective immediately upon delivery of such notice to Parent and the Company ~~Stockholder Approval or Confirmation Order) and~~ shall pay the Company Termination Fee ~~is not otherwise payable by the Company pursuant~~ to ~~this Section 8.3, then the Company shall pay~~ Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than ~~three (3)~~ one Business ~~Days~~ Day after ~~notice of termination of this Agreement~~the date Parent designates an account to the Company). (ec) [Intentionally Omitted] (d) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(ii) (~~Failure~~ End Date) (and the Company Shareholder Approval has not been obtained) or (B) Parent terminates this Agreement pursuant to ~~Obtain~~ Section 8.1(b)(iii) (Company ~~Stockholder Approval or Confirmation Order~~Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Company Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the~~ such date ~~of such termination,~~ and (iiiii) within ~~twelve (12)~~ nine months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement ~~with respect~~ to a effect any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee ~~less~~ in cash by wire transfer of immediately available funds (to an account designated by Parent) no later than three Business Days after the occurrence of an event described in the foregoing clause (iii). For purposes of this Section 8.3(d), any ~~amount previously paid by~~ reference in the definition of Company Competing Proposal to “25%” or “75%” shall be deemed to be a reference to “50%.” (e) If (i) Parent or the Company terminates this Agreement pursuant to Section ~~8.3(d)(i~~8.1(b)(iv) (Failure to Obtain Company Shareholder Approval), (ii) on or before the date of the Company Shareholders Meeting a Company Competing Proposal shall have been publicly announced or publicly disclosed and not withdrawn prior to such date and (iii) within nine months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement to effect any Company Competing Proposal or consummates any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) no later than three Business Days after the occurrence of an event described in the foregoing clause (iii). For purposes of this Section 8.3(e), any reference in the definition of Company Competing Proposal to “1525%” or “75%” shall be deemed to be a reference to “~~more than 80~~50%.”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”.[Intentionally Omitted] (g) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If ~~a Party~~ the Company fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 85% per annum. If, in order to obtain such payment, ~~the other Party~~ Pxxxxx commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the ~~defaulting Party~~ Company shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section 8.3, Section 6.24(h) and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 1 contract

Samples: Merger Agreement (Evofem Biosciences, Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If (i) Parent terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), ~~Section 8.1(h)(iii~~then the Company shall pay Parent the Company Termination Fee in cash by wire transfer of immediately available funds (to an account designated by Parent) ~~(Modification~~ no later than three Business Days after notice of ~~Prepackaged Plan)~~ termination of this Agreement or ~~Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan),~~ (ii~~) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii~~) the Company terminates this Agreement pursuant to Section ~~8.1(e~~8.1(d) (Company Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in each case, in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section 8.1(d) (Parent Change of Recommendation), or (ii) Parent terminates this Agreement pursuant to Section 8.1(f) (Parent Superior Proposal), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds (to an account designated by ~~the Company no later than three (3~~Parent) ~~Business Days after~~ concurrently with notice of termination of this Agreement~~. (d) If either~~ , unless Parent shall not have designated such account to the Company ~~or Parent terminates this Agreement~~ at least twenty-four (24) hours before the Company delivers notice of termination pursuant to Section 8.1(d) in response to a written request for such information delivered by the Company at least twenty-four (i24) hours before such deadline (in which case, the Company’s termination pursuant to Section ~~8.1(b)(iv)(A~~8.1(d) ~~(Failure~~ shall be effective immediately upon delivery of such notice to ~~Obtain~~ Parent and the Company ~~Stockholder Approval or Confirmation Order) and~~ shall pay the Company Termination Fee ~~is not otherwise payable by the Company pursuant~~ to ~~this Section 8.3, then the Company shall pay~~ Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than ~~three (3)~~ one Business ~~Days~~ Day after ~~notice of termination of this Agreement~~the date Parent designates an account to the Company). (ec) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(ii) (~~Failure~~ End Date) (and the Company Shareholder Approval has not been obtained) or (B) Parent terminates this Agreement pursuant to ~~Obtain~~ Section 8.1(b)(iii) (Company ~~Stockholder Approval or Confirmation Order~~Terminable Breach), ~~and~~ (ii) on or before the date of any such termination a Company Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise publicly communicated to the Company Board and not withdrawn ~~without qualification at least seven (7) Business Days~~ prior to ~~the~~ such date ~~of such termination,~~ and (iiiii) within ~~twelve (12)~~ nine months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement ~~with respect~~ to a effect any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a any Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee ~~less any amount previously paid~~ in cash by wire transfer of immediately available funds (to an account designated by Parent) no later than three Business Days after the ~~Company pursuant to Section 8.3(d)(i~~occurrence of an event described in the foregoing clause (iii). For purposes of this Section ~~8.3(e~~8.3(c), any reference in the definition of Company Competing Proposal to “1525%” or “75%” shall be deemed to be a reference to “~~more than 80~~50%.”. (fd) If (i~~) (A~~) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(b)(iv) (Failure to Obtain ~~Parent Stockholder~~ Company Shareholder Approval), ~~and~~ (ii) on or before the date of ~~any such termination~~ the Company Shareholders Meeting a ~~Parent~~ Company Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the such date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (iiiii) within ~~twelve (12)~~ nine months after the date of such termination, ~~Parent~~ the Company or any Subsidiary of the Company enters into a definitive agreement ~~with respect~~ to ~~a Parent~~ effect any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal)~~ or consummates ~~a Parent~~ any Company Competing Proposal, then ~~Parent~~ the Company shall pay Parent the Company ~~the Parent~~ Termination Fee ~~less any amount previously paid~~ in cash by ~~Parent pursuant~~ wire transfer of immediately available funds (to ~~Section 8.3(d~~an account designated by Parent) no later than three Business Days after the occurrence of an event described in the foregoing clause (iii). For purposes of this Section ~~8.3(f~~8.3(d), any reference in the definition of ~~Parent~~ Company Competing Proposal to “1525%” or “75%” shall be deemed to be a reference to “~~more than 80~~50%.”. (ge) In no event shall Parent be entitled to receive more than one payment of the Company Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If a ~~Party~~ party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 85% per annum. If, in order to obtain such payment, the other ~~Party~~ party commences a Proceeding that results in judgment for such ~~Party~~ party for such amount, the defaulting ~~Party~~ party shall pay the other ~~Party~~ party its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Proceeding. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section 9.11 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and Merger Sub and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such intentional fraud or Willful ~~and Material~~ Breach), and upon payment of such amount, none of Parent or Merger Sub or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such intentional fraud or Willful ~~and Material~~ Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future ~~directors, officers~~general or limited partners, shareholders, managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of intentional fraud or a Willful ~~and Material~~ Breach of any covenant, agreement or obligation. (f) In the event that the Company is required to pay the Company Termination Fee: (i) The amount payable to Parent in any tax year of Parent shall not exceed the lesser of (A) the Company Termination Fee payable to Parent, and (B) the sum of (1) the maximum amount that can be paid to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code for the relevant tax year, determined as if the payment of such amount did not constitute Qualifying Income and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in each case, as determined by Parent’s independent accountants, plus (2) in the event that Parent received either (x) a letter from Parent’s counsel indicating that Parent has received a ruling from the IRS as described below or (y) an opinion from Xxxxxx’s outside counsel as described below, an amount equal to the excess of the Company Termination Fee less the amount payable under clause (1) above. (ii) To secure the Company’s obligation to pay the amounts described in Section 8.3(f)(i), the Company shall deposit into escrow the amount in cash equal to the Company Termination Fee, with an escrow agent selected by the Company on such terms (subject to this Section 8.3) as shall be mutually and reasonably agreed upon by the Company, Parent and the escrow agent. The payment or deposit into escrow of the Company Termination Fee pursuant to this Section 8.3 shall be made at the time the Company is obligated to pay the Company Termination Fee. The escrow agent shall provide that the Company Termination Fee in escrow or any portion thereof shall not be released to Parent unless the escrow agent receives any one or a combination of the following: (i) a letter from Parent’s independent accountants indicating the maximum amount that can be paid by the escrow agent to Parent without causing Parent to fail to meet the requirements of Sections 856(c)(2) or 856(c)(3) of the Code determined as if the payment of such amount did not constitute Qualifying Income and Parent has income from unknown sources during such year in an amount equal to 1% of its gross income which is not Qualifying Income (in addition to any known or anticipated income which is not Qualifying Income), in which case the escrow agent shall release such amount to Parent, or (ii) a letter from Parent’s counsel indicating that (A) Parent has received a ruling from the IRS holding that the receipt by Parent of the Company Termination Fee would either constitute Qualifying Income or would be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code or (B) Parent’s outside counsel has rendered a legal opinion to the effect that the receipt by Parent of the Company Termination Fee should either constitute Qualifying Income or should be excluded from gross income within the meaning of Sections 856(c)(2) and 856(c)(3) of the Code, in which case the escrow agent shall release the remainder of the Company Termination Fee to Parent. The Company agrees to amend this Section 8.3(f) at the reasonable request of Parent in order to (1) maximize that portion of the Company Termination Fee that may be distributed to Parent hereunder without causing Parent to fail to meet the requirements of Sections 856(c)(2) and 856(c)(3) of the Code or (2) assist Parent in obtaining a favorable ruling from the IRS or legal opinion from its outside counsel, in each case, as described in this Section 8.3(f)(ii). Any amount of the Company Termination Fee that remains unpaid as of the end of a taxable year shall be paid as soon as possible during the following taxable year, subject to the foregoing limitation of this Section 8.3(f).

Appears in 1 contract

Samples: Merger Agreement (Ellington Financial Inc.)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Agreement, each Party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated; provided, ~~except~~ however, that ~~all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by~~ Parent and the ~~Company~~Company shall each be responsible for the payment of 50% of the HSR filing fee applicable to the Merger. (b) If (i) Parent terminates this Agreement pursuant to Section ~~8.1(c~~8.1(c)(i)(A) (Company Change of Recommendation~~), Section 8.1(h)(iii) (Modification of Prepackaged Plan~~) or Section ~~8.1(h)(iv~~8.1(c)(i)(B) (~~Withdrawal~~ Company Willful Breach of ~~Prepackaged Plan~~Non-Solicit), or (ii) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(h)(i~~8.1(b)(ii) (~~Termination of Support~~Outside Date) or Section 8.1(b)(iv) (~~iii~~Failure to Obtain Company Stockholder Approval) ~~the Company terminates~~ at a time when Parent would have been entitled to terminate this Agreement pursuant to Section ~~8.1(e~~8.1(c)(i) (Company ~~Superior Proposal~~Change of Recommendation), then the Company shall pay Parent the Company Termination ~~Fee, in each case,~~ Fee in cash by wire transfer of immediately available funds to an account designated by Parent no later than three (3) Business Days after notice of termination of this Agreement. (c) If (i) the Company terminates this Agreement pursuant to Section ~~8.1(d~~8.1(d)(i)(A) (Parent Change of Recommendation) or Section 8.1(d)(i)(B) (Parent Willful Breach of Non-Solicit), or (ii) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(f~~8.1(b)(ii) (Outside Date) or Section 8.1(b)(v) (Failure to Obtain Parent Stockholder Approval) at a time when the Company would have been entitled to terminate this Agreement pursuant to Section 8.1(d)(i) (Parent ~~Superior Proposal~~Change of Recommendation), then Parent shall pay the Company the Parent Termination Fee in cash by wire transfer of immediately available funds to an account designated by the Company no later than three (3) Business Days after notice of termination of this Agreement. (d) If ~~either~~ the Company ~~or Parent~~ terminates this Agreement pursuant to ~~(i)~~ Section ~~8.1(b)(iv)(A~~8.1(d)(ii) (~~Failure to Obtain~~ Company ~~Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3~~Superior Proposal), then the Company shall pay Parent the Company Termination Fee, in cash by wire transfer of immediately available funds to an account designated by Parent, prior to or concurrently with the termination of this Agreement. (e) If Parent ~~Expenses or (ii)~~ terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(c)(ii) (~~Failure to Obtain~~ Parent ~~Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3~~Superior Proposal), then Parent shall pay the Company the ~~Company Expenses~~ Parent Termination Fee, in ~~each case~~cash by wire transfer of immediately available funds to an account designated by the Company, ~~no later than three (3) Business Days after notice of~~ prior to or concurrently with the termination of this Agreement. (ef) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A~~8.1(b)(iv) (Failure to Obtain Company Stockholder ~~Approval or Confirmation Order~~Approval), and on or before the date of any such ~~termination~~ termination, a Company Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been~~ publicly withdrawn without qualification at least seven (7) Business Days prior to the Company Stockholders Meeting or (B) (1) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or (2) Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and, in the case of each of clauses (1) and (2), following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months ~~after~~ of the date of such termination, the Company enters into a definitive agreement with respect to a Company Competing Proposal (or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal) or consummates a Company Competing Proposal, then the Company shall pay Parent the Company Termination Fee (less any amount previously paid by the Company pursuant to Section ~~8.3(d)(i~~8.3(h)) within three (3) Business Days after the earlier to occur of (x) the consummation of such Company Competing Proposal or (y) entering into a definitive agreement relating to a Company Competing Proposal. For purposes of this Section ~~8.3(e),~~ 8.3(f) any reference in the definition of Company Competing Proposal to “~~15%~~20% or more” shall be deemed to be a reference to “more than 8050%”. (fg) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(B~~8.1(b)(v) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such ~~termination~~ termination, a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been~~ publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) (1) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or (2) the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and, in the case of each of clauses (1) and (2), following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months ~~after~~ of the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee (less any amount previously paid by Parent pursuant to Section ~~8.3(d~~8.3(i)) within three (3) Business Days after the earlier to occur of (x) the consummation of such Parent Competing Proposal or (y) entering into a definitive agreement relating to a Parent Competing Proposal. For purposes of this Section ~~8.3(f~~8.3(g), any reference in the definition of Parent Competing Proposal to “~~15%~~20% or more” shall be deemed to be a reference to “more than 8050%”. (gh) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv) (Failure to Obtain Company Stockholder Approval), then the Company shall pay Parent the Parent Expenses no later than three (3) Business Days after notice of termination of this Agreement. (i) If Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(v) (Failure to Obtain Parent Stockholder Approval), then Parent shall pay the Company the Company Expenses no later than three (3) Business Days after notice of termination of this Agreement. (j) In no event shall Parent or the Company, respectively, be entitled to receive more than one payment of the Company Termination Fee or ~~more than one payment of~~ Parent ~~Expenses. If Parent receives the Company~~ Termination Fee, ~~then~~ as applicable, or Parent ~~will not be entitled~~ Expenses or Company Expenses, as applicable. Notwithstanding anything in this Agreement to ~~also receive a~~ the contrary, the payment of the Parent ~~Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment~~ Expenses or of the Company ~~Termination Fee~~Expenses shall not relieve the Company or Parent, ~~then the amount~~ respectively, of any subsequent obligation to pay the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or ~~more than one payment of Company Expenses. If the Company receives~~ the Parent Termination Fee, ~~then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses~~as applicable; provided, ~~and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to~~ that the Company shall be ~~reduced~~ entitled to credit any prior Parent Expenses actually paid by the Company ~~Expenses. If Parent is~~ pursuant to Section 8.3(h) against the amount of any Company Termination Fee required to ~~pay~~ be paid and Parent shall be entitled to credit any prior Company Expenses actually paid by Parent pursuant to Section 8.3(i) against the ~~Company the~~ amount of any Parent Termination ~~Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense Fee~~Fee required to be paid. The Parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the Parties would not enter into this Agreement. Each of the Parties acknowledges and agrees that the Company Termination Fee and the Parent Termination Fee, as applicable, is not intended to be a penalty, but rather is liquidated damages in a reasonable amount that will compensate Parent or the Company, as applicable, in the circumstances in which such Company Termination Fee or Parent 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. If a Party fails to promptly pay the amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 8% per ~~annum~~annum (compounded annually). ~~If,~~ If in order to obtain such payment, the other Party commences a Proceeding that results in judgment for such Party for such amount, the defaulting Party shall pay the other Party its reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses, provided, that, in no event shall attorneys’ fees that are based on a contingency fee, “success” fee or any other type of fee arrangement dependent on the outcome of the Proceeding be deemed to constitute reasonable out-of-pocket attorneys’ fees) incurred in connection with such Proceeding. The Parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section ~~9.11~~ 9.10 shall be the sole and exclusive remedies of (i) the Company and its Subsidiaries against Parent and ~~Merger Sub~~ its Subsidiaries and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of any of the ~~Merger~~ Integrated Mergers to be consummated except in the case of fraud or a Willful and Material Breach of any representation, warranty, covenant, agreement or obligation (in which case only Parent ~~and Merger Sub~~ shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of Parent or ~~Merger Sub or~~ any of ~~their respective~~ its former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any representation, warranty, covenant, agreement or obligation; and (ii) Parent and ~~Merger Sub~~ its Subsidiaries against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates for any loss suffered as a result of the failure of any of the ~~Merger~~ Integrated Mergers to be consummated except in the case of fraud or a Willful and Material Breach of any representation, warranty, covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, ~~shareholders~~stockholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any representation, warranty, covenant, agreement or obligation.

Appears in 1 contract

Samples: Merger Agreement (Southwestern Energy Co)

Appears in 1 contract

Samples: Merger Agreement (Huntsman CORP)

Expenses and Other Payments. (a) Except as otherwise provided in this ~~Agreement (including payment of the Transaction Expense Fee)~~Section 8.3, each ~~Party~~ party shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the Transactions, whether or not the Merger shall be consummated~~, except that all filing fees paid in respect of the filings under the HSR Act in connection with the Merger shall be borne equally by Parent and the Company~~. (b) If ~~(i) Parent~~ either party terminates this Agreement pursuant to Section 8.1(c) (Company Change of Recommendation), Section 8.1(h)(iii) (Modification of Prepackaged Plan) or Section 8.1(h)(iv) (Withdrawal of Prepackaged Plan), (ii) Parent or the Company terminates this Agreement pursuant to Section 8.1(h)(i) (Termination of Support) or (iii) the Company terminates this Agreement pursuant to Section 8.1(e) (Company Superior Proposal8.1(b)(iv), then the Company shall ~~pay~~ pay, or cause to be paid to, Parent the ~~Company Termination Fee,~~ Expense Reimbursement pursuant to the procedures set forth in ~~each case, in cash by wire transfer of immediately available funds to an account designated by Parent~~ Section 8.4 no later than ~~three~~ two (32) Business Days after notice of termination of this Agreement. (c) If (i1) Parent terminates this Agreement pursuant to Section 8.1(c), then the Company shall pay, or cause to be paid to, Parent the Termination Fee pursuant to the procedures set forth in Section 8.4 no later than two (2) Business Days after notice of termination of this Agreement, (2) the Company terminates this Agreement pursuant to Section 8.1(d~~) (~~), then the Company shall pay Parent ~~Change~~ the Termination Fee pursuant to the procedures set forth in Section 8.4 concurrently with notice of ~~Recommendation)~~termination of this Agreement, or (ii3) ~~Parent~~ either party terminates this Agreement pursuant to Section ~~8.1(f~~8.1(b)(iv) ~~(Parent Superior Proposal)~~following any Company Change of Recommendation, then ~~Parent shall pay~~ the Company shall pay, or cause to be paid to, Parent the ~~Parent~~ Termination Fee pursuant to the procedures set forth in ~~cash by wire transfer of immediately available funds to an account designated by the Company~~ Section 8.4 no later than ~~three~~ two (32) Business Days after notice of termination of this Agreement. (d) If ~~either the Company or Parent terminates this Agreement pursuant to~~ (i) Section 8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order) and the Company Termination Fee is not otherwise payable by the Company pursuant to this Section 8.3, then the Company shall pay Parent the Parent Expenses or (ii) Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval) following the occurrence of any Parent Change of Recommendation and the Parent Termination Fee is not otherwise payable by Parent pursuant to this Section 8.3, then Parent shall pay the Company the Company Expenses in each case, no later than three (3) Business Days after notice of termination of this Agreement. (e) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section ~~8.1(b)(iv)(A) (Failure to Obtain Company Stockholder Approval or Confirmation Order~~8.1(b)(iv), ~~and~~ (ii) on or before the date of ~~any such termination~~ the Company Shareholders Meeting a Company Competing Proposal shall have been publicly announced or publicly disclosed and not ~~been publicly~~ withdrawn ~~without qualification at least seven (7) Business Days~~ prior to the Company Stockholders Meeting or (B) the Company terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when Parent would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) or Parent terminates this Agreement pursuant to Section 8.1(b)(iii) (Company Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Company Competing Proposal shall have been announced, disclosed or otherwise communicated to the Company Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such terminationdate, and (iiiii) within twelve (12) months after the date of such termination, the Company or any Subsidiary of the Company enters into a definitive agreement with respect to a any Company Competing Proposal ~~(or publicly approves or recommends to the stockholders of the Company or otherwise does not oppose, in the case of a tender or exchange offer, a Company Competing Proposal)~~ or consummates a any Company Competing Proposal, then the Company shall ~~pay~~ pay, or cause to be paid to, Parent the ~~Company~~ Termination Fee ~~less any amount previously paid by the Company~~ pursuant to the procedures set forth in Section ~~8.3(d)(i)~~8.4, within two (2) Business Days of the earlier of the Company’s entering into such definitive agreement or consummation of such Company Competing Proposal. For purposes of this Section ~~8.3(e~~8.3(d), any reference in the definition of Company Competing Proposal to “1520%” or “80%” shall be deemed to be a reference to “~~more than 80~~50%.”. (f) If (i) (A) Parent or the Company terminates this Agreement pursuant to Section 8.1(b)(iv)(B) (Failure to Obtain Parent Stockholder Approval), and on or before the date of any such termination a Parent Competing Proposal shall have been publicly announced or publicly disclosed and not been publicly withdrawn without qualification at least seven (7) Business Days prior to the Parent Stockholders Meeting or (B) Parent terminates this Agreement pursuant to Section 8.1(b)(ii) (Outside Date) at a time when the Company would be permitted to terminate this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) or the Company terminates this Agreement pursuant to Section 8.1(b)(iii) (Parent Terminable Breach) and following the execution of this Agreement and on or before the date of any such termination a Parent Competing Proposal shall have been announced, disclosed or otherwise communicated to the Parent Board and not withdrawn without qualification at least seven (7) Business Days prior to the date of such termination, and (ii) within twelve (12) months after the date of such termination, Parent enters into a definitive agreement with respect to a Parent Competing Proposal (or publicly approves or recommends to the stockholders of Parent or otherwise does not oppose, in the case of a tender or exchange offer, a Parent Competing Proposal) or consummates a Parent Competing Proposal, then Parent shall pay the Company the Parent Termination Fee less any amount previously paid by Parent pursuant to Section 8.3(d). For purposes of this Section 8.3(f), any reference in the definition of Parent Competing Proposal to “15%” shall be deemed to be a reference to “more than 80%”. (ge) In no event shall Parent be entitled to receive more than one payment of ~~the Company~~ a Termination Fee or more than one payment of Parent Expenses. If Parent receives the Company Termination Fee, then Parent will not be entitled to also receive a payment of the Parent Expenses. If Parent receives payment of Parent Expenses, and following receipt thereof Parent becomes entitled to payment of the Company Termination Fee, then the amount of the Company Termination Fee payable to Parent shall be reduced by the amount of Parent Expenses actually received by Parent in excess of the Transaction an Expense Fee. In no event shall the Company be entitled to receive more than one payment of the Parent Termination Fee or more than one payment of Company Expenses. If the Company receives the Parent Termination Fee, then the Company will not be entitled to also receive a payment of the Company Expenses. If the Company receives payment of Company Expenses, and following receipt thereof the Company becomes entitled to payment of the Parent Termination Fee, then the amount of the Parent Termination Fee payable to the Company shall be reduced by the Company Expenses. If Parent is required to pay the Company the Parent Termination Fee, then Parent shall concurrently with such payment reimburse the Company for the Transaction Expense FeeReimbursement. The ~~Parties~~ parties agree that the agreements contained in this Section 8.3 are an integral part of the Transactions, and that, without these agreements, the ~~Parties~~ parties would not enter into this Agreement. If ~~a Party~~ the Company fails promptly to ~~promptly~~ pay ~~the~~ any amount due by it pursuant to this Section ~~8.3 or Section 6.24(h)~~8.3, interest shall accrue on such amount from the date such payment was required to be paid pursuant to the terms of this Agreement until the date of payment at the rate of 812% per annum. If, in order to obtain such payment, ~~the other Party~~ Parent commences ~~a Proceeding~~ an Action that results in judgment for ~~such Party~~ Parent for such amount, the ~~defaulting Party~~ Company shall pay ~~the other Party~~ Parent its ~~reasonable~~ out-of-pocket costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such ~~Proceeding~~Action, in an amount not to exceed $1,000,000 in the aggregate. The ~~Parties~~ parties agree that the monetary remedies set forth in this Section ~~8.3, Section 6.24(h)~~ 8.3 and the specific performance remedies set forth in Section ~~9.11~~ 9.10 shall be the sole and exclusive remedies of ~~(i)~~ Parent and Merger Sub against the Company and its Subsidiaries ~~against Parent and Merger Sub~~ and any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only Parent and Merger Sub shall be liable for damages for such fraud or Willful and Material Breach)consummated, and upon payment of such ~~amount~~amounts, none of ~~Parent or Merger Sub~~ the Company and its Subsidiaries or any of their respective former, current or future ~~directors~~general or limited partners, ~~officers~~stockholders, ~~shareholders~~managers, members, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of Parent in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation; and (ii) Parent and Merger Sub against the Company and its Subsidiaries and any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates for any loss suffered as a result of the failure of the Merger to be consummated except in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful and Material Breach), and upon payment of such amount, none of the Company and its Subsidiaries or any of their respective former, current or future directors, officers, shareholders, Representatives or Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for the liability of the Company in the case of fraud or a Willful and Material Breach of any covenant, agreement or obligation.

Appears in 1 contract

Samples: Merger Agreement (Ready Capital Corp)

Common use of Expenses and Other Payments Clause in Contracts