Expenses and Termination Fee. (a) Except as otherwise set forth in this Section 8.3, regardless of whether the Closing occurs, the parties hereto shall pay their own Expenses arising after April 10, 2002. (b) Without limiting any other remedies available to Parent for any willful or intentional breach of this Agreement, in the event that (i) Parent shall terminate this Agreement pursuant to Section 8.1(d) or Section 8.1(f), (ii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b)(i) without the Shareholders' Meeting having occurred (provided that the sole reason for the failure of the Shareholders' Meeting to have occurred shall not be the failure of the SEC to approve the Proxy Statement, notwithstanding the Company's best efforts to obtain such approval) or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and at any time after the date of this Agreement and prior to the Shareholders' Meeting there shall have been a Competing Proposed Transaction with respect to the Company, and the Company shall have executed a definitive agreement with respect to such Competing Proposed Transaction, or such Competing Proposed Transaction shall have been consummated within nine months of such termination, then the Company shall pay to the Company (the "Termination Fee") a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company), and an additional amount equal to $300,000. Any Termination Fee shall be paid by wire transfer in same day funds to the account or accounts designated by Parent within three Business Days of the date of termination. (c) In the event that Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and the Termination Fee is not payable pursuant to subsection (b)(iii) of this Section 8.3, then the Company shall pay to Parent, in same day funds within three (3) Business Days of the date of termination, a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company).
Appears in 2 contracts
Samples: Merger Agreement (Wellcare Group Inc), Merger Agreement (Wellcare Management Group Inc)
Expenses and Termination Fee. (a) Except as otherwise set forth in Subject to subsections (b), (c) and (d) of this Section 8.3, regardless of whether or not the Closing occursMerger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the parties hereto fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall pay their own Expenses arising after April 10be paid by the party incurring such expense, 2002it being understood and agreed that (i) expenses incurred in connection with printing the Proxy Statement and filing fees incurred in connection with the Proxy Statement shall be expenses of Company and (ii) filing fees associated with compliance with applicable regulatory requirements in connection with the Merger shall be expenses of Parent.
(b) Without limiting any other remedies available to Parent for any willful or intentional breach of this Agreement, in In the event that either (iA) Company shall terminate this Agreement pursuant to Section 8.1(e) or (B) Parent shall terminate this Agreement pursuant to Section 8.1(d) or Section 8.1(f8.1(c)(ii), (iiiii), or (iv) Company shall pay to Parent the Termination Fee.
(c) In the event that (A) any of (i) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b)(i8.1(b), (ii) without the Shareholders' Meeting having occurred (provided that the sole reason for the failure of the Shareholders' Meeting Parent shall terminate this Agreement pursuant to have occurred shall not be the failure of the SEC to approve the Proxy StatementSection 8.1(c)(i), notwithstanding the Company's best efforts to obtain such approval) or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g), (B) and at any time after the date of this Agreement and prior to the Shareholders' Meeting time of such termination there shall have been a Competing Proposed Transaction Takeover Proposal with respect to the Company, and the Company shall have executed (C) within twelve (12) months of such termination of this Agreement, either (i) a definitive agreement is entered into by Company with respect to such Competing Proposed Transactiona Takeover Proposal or (ii) a Takeover Proposal is consummated, or such Competing Proposed Transaction shall have been consummated within nine months of such termination, then the Company shall pay to Parent the Company (the "Termination Fee") a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company), and an additional amount equal to $300,000. Any Termination Fee shall be paid by wire transfer in same day funds to the account or accounts designated by Parent within three Business Days of the date of termination.
(cd) In the event that Parent or the a Termination Fee is payable to Parent, Company shall terminate this Agreement pursuant to Section 8.1(g) and pay the Termination Fee is not payable pursuant to subsection Parent (b)(iiii) of this Section 8.3, then the Company shall pay to Parent, in same day funds within three (3) Business Days of on the date of termination, in the event that the Termination Fee is payable pursuant to Section 8.3(b) as a sum result of termination of this Agreement by Company, (ii) at the time that a definitive agreement is entered into by Company, in the event that the Termination Fee is payable pursuant to Section 8.3(c) and clause (C)(i) of Section 8.3(c) is applicable, (iii) at the time that a Takeover Proposal is consummated, in the event that the Termination Fee is payable pursuant to Section 8.3(c) and clause (C)(ii) of Section 8.3(c) is applicable, and (iv) within fifteen (15) days after the date of termination, in the event that the Termination Fee is payable pursuant to Section 8.3(b) as a result of termination of this Agreement by Parent.
(e) In the event that Company fails to pay when due the Termination Fee under this Section 8.3 and Parent commences a suit which results in a judgment against Company for such overdue amount, then (i) Company shall reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with such suit and the collection of such overdue amount and (ii) Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at a rate per annum equal to all the “prime rate” (as announced by Bank of Parent's Expenses (other than any such Expenses previously paid by America, N.A.) in effect on the Company)date the overdue amount was originally required to be paid.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Palmsource Inc)
Expenses and Termination Fee. (a) Except as otherwise set forth in Subject to subsections (b), (c) and (d) of this Section 8.3, regardless of whether or not the Closing occursMerger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the parties hereto fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall pay their own Expenses arising after April 10be paid by the party incurring such expense, 2002it being understood and agreed that expenses incurred in connection with printing the Offer Documents, Schedule 14D-9 and Proxy Statement, and registration and filing fees incurred in connection with the Offer Documents, Schedule 14D-9 and Proxy Statement and filing fees associated with compliance with applicable regulatory requirements in connection with the Merger shall be shared equally by the Company and Parent.
(b) Without limiting any other remedies available to Parent for any willful or intentional breach of this Agreement, in In the event that either (iA) the Company shall terminate this Agreement pursuant to Section 8.1(e) or (B) Parent shall terminate this Agreement pursuant to Section 8.1(d8.1(c) or Section 8.1(f(ii), (iiiii) or (iv), the Company shall pay to Parent the Termination Fee.
(c) In the event that (A) any of (i) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b)(i8.1(b), (ii) without the Shareholders' Meeting having occurred (provided that the sole reason for the failure of the Shareholders' Meeting Parent shall terminate this Agreement pursuant to have occurred shall not be the failure of the SEC to approve the Proxy StatementSection 8.1(c)(i), notwithstanding the Company's best efforts to obtain such approval) or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g), (B) and at any time after the date of this Agreement and prior to the Shareholders' Meeting time of such termination there shall have been a Competing Proposed Transaction Takeover Proposal with respect to the Company, and the Company shall have executed (C) a definitive agreement or letter of intent is entered into by the Company with respect to such Competing Proposed Transaction, a Takeover Proposal or such Competing Proposed Transaction shall have been a Takeover Proposal is consummated within nine twelve (12) months of such terminationtermination of this Agreement, then the Company shall pay to the Company (the "Termination Fee") a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company), and an additional amount equal to $300,000. Any Termination Fee shall be paid by wire transfer in same day funds to the account or accounts designated by Parent within three Business Days of the date of terminationParent.
(cd) In the event that Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and the a Termination Fee is not payable pursuant to subsection (b)(iii) of this Section 8.3Parent, then the Company shall pay the Termination Fee to Parent, in same day funds within three Parent (3i) Business Days of on the date of termination, in the event that the Termination Fee is payable pursuant to Section 8.3(b) as a sum equal to all result of Parent's Expenses (other than any such Expenses previously paid termination of this Agreement by the Company, (ii) at the time of consummation of the Takeover Proposal, in the event that the Termination Fee is payable pursuant to Section 8.3(c) and (iv) in all other cases within fifteen (15) days after the date of termination. In no event shall the Company be obligated to pay to Parent an amount in excess of the Termination Fee and any amounts owed to Parent pursuant to Section 8.3(a).
(e) In the event that the Company fails to pay when due any amount payable under this Section 8.3 and Parent commences a suit which results in a judgment against the Company for the Termination Fee, then (i) the Company shall reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with such suit, together with interest on the Termination Fee (for the period commencing as of the date the Termination Fee was originally required to be paid and ending on the date the Termination Fee is actually paid to Parent in full) at a rate per annum equal to the “prime rate” (as announced by Bank of America, N.A.) in effect on the date the Termination Fee was originally required to be paid.
Appears in 1 contract
Expenses and Termination Fee. (a) Except as otherwise set forth in this Section 8.3, regardless of whether the Closing occurs, the parties hereto shall pay their own Expenses arising after April 10, 2002.
(b) Without limiting any other remedies available to Parent for any willful or intentional breach of this Agreement, in In the event that (i) Parent Buyer shall terminate this Agreement pursuant to Section 8.1(d) or Section 8.1(f), (ii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b)(i) without the Shareholders' Meeting having occurred (provided that the sole reason for the failure of the Shareholders' Meeting to have occurred shall not be the failure of the SEC to approve the Proxy Statement, notwithstanding the Company's best efforts to obtain such approval8.1(c)(ii) or (iii) Parent ), or in the Company event that Seller shall terminate this Agreement pursuant to Section 8.1(g), Seller shall pay the Termination Fee to Buyer and reimburse Buyer’s Transaction Expenses.
(b) and at any time after In the date of event that (A) either (i) Buyer shall terminate this Agreement and pursuant to Section 8.3(c)(i), or (ii) Buyer or Seller shall terminate this Agreement pursuant to Section 8.1(e) or (f), (B) prior to the Shareholders' Meeting time of such termination there shall have been a Competing Proposed Transaction an Acquisition Proposal with respect to the CompanySeller, and the Company shall have executed (C) within twelve months after such termination of this Agreement, either (i) a definitive agreement is entered into by Seller with respect to such Competing Proposed Transactionan Acquisition Proposal or (ii) an Acquisition Proposal is consummated, or such Competing Proposed Transaction shall have been consummated within nine months of such termination, then the Company Seller shall pay to the Company (the "Termination Fee") a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company), and an additional amount equal to $300,000. Any Termination Fee shall be paid by wire transfer in same day funds to the account or accounts designated by Parent within three Business Days of the date of terminationBuyer and reimburse Buyer’s Transaction Expenses.
(c) In the event that Parent either Buyer or the Company Seller shall terminate this Agreement pursuant to Section 8.1(g8.1(f), and no Acquisition Proposal has been made prior thereto, Seller shall reimburse Buyer’s Transaction Expenses.
(d) and In the event that Seller must pay a Termination Fee is not payable pursuant to subsection (b)(iii) of this Section 8.3Buyer or reimburse Buyer’s Transaction Expenses, then the Company Seller shall pay to Parent, in same day funds such amounts: (i) within three ten (310) Business Days of days after the date of termination, in the event that the Termination Fee and Buyer’s Transaction Expenses are due pursuant to Section 8.3(b), (ii) at the earlier of the time that a sum equal definitive agreement is entered into by Seller or the time the Acquisition Proposal is consummated, in the event that the Termination Fee and Buyer’s Transaction Expenses are due pursuant to all Section 8.3(a), or (iii) within five (5) days after the date of Parent's termination, in the event that the Buyer’s Transaction Expenses (other than any such Expenses previously paid by the Companyare due pursuant to Section 8.3(c).
(e) In the event that Seller fails to pay either the Termination Fee or the Buyer’s Transaction Expenses or both when due under this Section 8.3 and Buyer commences a suit which results in a judgment against Seller for such overdue amount, then (i) Seller shall reimburse Buyer for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with such suit and the collection of such overdue amount and (ii) Seller shall pay to Buyer interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Buyer in full) at the rate of 7% per annum.
Appears in 1 contract
Expenses and Termination Fee. (a) Except as otherwise set forth Whether or not the Merger and the Contribution are consummated, all costs and expenses incurred by Company and the HMI Parties in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the fees and expenses of their advisers, agents, accountants and legal counsel) shall be paid by the Party incurring such expense, it being understood and agreed that expenses incurred in connection with printing and distributing the Proxy Statement, one-half of the filing fees incurred in connection with the Form S-4 (including the Proxy Statement) and one-half of any other filing fees payable to Government Entities in connection with the transactions provided for in this Section 8.3, regardless Agreement shall be expenses of whether the Closing occurs, the parties hereto shall pay their own Expenses arising after April 10, 2002Company.
(b) Without limiting any other remedies available to Parent for any willful or intentional breach of this Agreement, in In the event that either (A) Company shall terminate this Agreement pursuant to Section 8.1(e) or (B) Parent shall terminate this Agreement pursuant to Section 8.1(c)(ii) or (iii), Company shall pay the Termination Fee to Parent.
(c) In the event that (A) either (i) Parent shall terminate this Agreement pursuant to Section 8.1(d) or Section 8.1(f8.1(c)(i), or (ii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b)(i) without the Shareholders' Meeting having occurred (provided that the sole reason for the failure of the Shareholders' Meeting to have occurred shall not be the failure of the SEC to approve the Proxy Statement, notwithstanding the Company's best efforts to obtain such approval8.1(f) or (iiig), (B) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and at any time after the date of this Agreement and prior to the Shareholders' Meeting time of such termination there shall have been a Competing Proposed Transaction Takeover Proposal with respect to the Company, and the Company shall have executed (C) within twelve months after such termination of this Agreement, either (i) a definitive agreement is entered into by Company with respect to such Competing Proposed Transactiona Takeover Proposal or (ii) a Takeover Proposal is consummated, Company shall pay the Termination Fee to Parent.
(d) In the event that this Agreement is terminated pursuant to Section 8.1(c) (other than termination pursuant to (A) Section 8.1(c)(i) based on breach of representation or warranty due to changes in facts occurring after the date hereof and not within the control of Company, or such Competing Proposed Transaction shall have (B) Section 8.1(c)(ii) if the withdrawal or modification of the Company Board Recommendation is in connection with a termination of this Agreement by Company pursuant to 8.1(e) or is based solely on an actual breach of representation, warranty or covenant by the HMI Parties), or Section 8.1(g) and no Takeover Proposal has been consummated within nine months of such terminationmade prior thereto, then the Company shall pay to the Company (the "Termination Fee") a sum equal to HMI Parties all of Parent's Expenses (other than their reasonable, actual and documented out-of-pocket fees and expenses incurred on or prior to the termination of this Agreement in connection with the transactions contemplated by this Agreement; provided, that such expense reimbursement obligation shall be limited to a maximum of $500,000 in the event this Agreement is terminated pursuant to Section 8.1(g). Company shall pay the expenses of the HMI Parties as provided herein promptly, and in any such Expenses previously paid event within 5 Business Days, following presentation by the Company)HMI Parties of a request for such payment accompanied by reasonable documentation supporting such payment request, and an additional amount equal to $300,000. Any Termination Fee shall which request may only be paid by wire transfer made in same day funds to the account connection with or accounts designated by Parent within three Business Days after termination of the date of terminationthis Agreement.
(ce) In the event that Parent or the a Termination Fee is payable to Parent, Company shall terminate this Agreement pursuant to Section 8.1(g) and pay the Termination Fee is not payable pursuant to subsection (b)(iii) of this Section 8.3, then the Company shall pay to Parent, in same day funds : (i) within three (3) Business Days of five days after the date of termination, in the event that the Termination Fee is payable pursuant to Section 8.3(b)(B); (ii) at the earlier of the time that a sum equal definitive agreement is entered into by the Company or the time the Takeover Proposal is consummated, in the event that the Termination Fee is payable pursuant to all Section 8.3(c), or (iii) on the date of termination, in the event that the Termination Fee is payable pursuant to Section 8.1(e).
(f) In the event that Company fails to pay either or both of the expenses of Parent's Expenses , the HMI Entities and the HMI Owners or the Termination Fee when due under this Section 8.3 and Parent commences a suit which results in a judgment against Company for such overdue amount, then (other than i) Company shall reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with such suit and the collection of such overdue amount and (ii) Company shall pay to Parent interest on such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid and ending on the date such overdue amount is actually paid to Parent in full) at the rate of 7% per annum. 34
(g) The HMI Parties hereby agree, that, upon any termination of this Agreement under circumstances in which the Termination Fee is required to be paid, and provided such Expenses previously Termination Fee is timely paid in full, the HMI Parties and their Affiliates (including Merger Sub) shall be precluded from seeking any remedy against the Company and its Affiliates, at law or in equity or otherwise (except as otherwise provided in this Agreement, including Sections 8.3(d) and (f)), and neither the HMI Parties nor any of their Affiliates (including Merger Sub) may seek (and the HMI Parties shall cause their Affiliates (including Merger Sub) not to seek) to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the Company or any of its Affiliates, or any of the Company Representatives in connection with this Agreement or the transactions contemplated hereby or the termination or breach of this Agreement. The HMI Parties acknowledge that the agreements contained in this Section 8.3(g) are an integral part of the transactions contemplated by this Agreement, and that without these agreements the Company)Company would not enter into this Agreement, and Parent and the Company acknowledge and agree that the Termination Fee is reasonable and not a penalty.
Appears in 1 contract
Samples: Merger Agreement (Planetout Inc)
Expenses and Termination Fee. (a) Except as otherwise set forth in Subject to subsections (b), (c), (d) and (e) of this Section 8.37.3, regardless of whether or not the Closing occursMerger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the parties hereto fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall pay their own Expenses arising after April 10, 2002be paid by the party incurring such expense.
(b) Without limiting any other remedies available to Parent for any willful or intentional breach of this Agreement, in In the event that (i) Parent shall the Company wishes to terminate this Agreement pursuant to Section 8.1(d) or Section 8.1(f7.1(e), (ii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b)(i) without the Shareholders' Meeting having occurred (provided that the sole reason for the failure of the Shareholders' Meeting to have occurred shall not be the failure of the SEC to approve the Proxy Statement, notwithstanding the Company's best efforts to obtain such approval) or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and at any time after the date of this Agreement and prior to the Shareholders' Meeting there shall have been a Competing Proposed Transaction then simultaneously with respect to the Company, and the Company shall have executed a definitive agreement with respect to such Competing Proposed Transaction, or such Competing Proposed Transaction shall have been consummated within nine months of such termination, then termination the Company shall pay to the Company (the "Termination Fee") a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company), and an additional amount equal to $300,000. Any Termination Fee shall be paid by wire transfer in same of same-day funds to Parent the account or accounts designated by Parent within three Business Days of the date of terminationTermination Fee.
(c) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(c)(ii) or (iii), then, upon such termination, the Company shall pay by wire transfer of same-day funds to Parent an amount equal to one-fourth of the Termination Fee; furthermore, if a definitive agreement or letter of intent is entered into by the Company with respect to a Takeover Proposal, or a Takeover Proposal is consummated, within 12 months of such termination of this Agreement, then the Company shall, on the earlier of the date such agreement or letter of intent is entered into or a Takeover Proposal is consummated, pay by wire transfer of same-day funds to Parent an amount equal to three-fourths of the Termination Fee; PROVIDED, HOWEVER, that for the purpose of this Section 7.3(c), all references in the definition of Takeover Proposal to "25%" shall instead be deemed to refer to "a majority".
(d) In the event that (i) any of (A) Parent shall terminate this Agreement pursuant to Section 7.1(c)(i) other than as a result of any unintentional breach of this Agreement by the Company or (B) Parent or Company shall terminate this Agreement pursuant to Section 8.1(g7.1(b) as a result of a failure to consummate the Merger prior to the date set forth in Section 7.1(b) caused by a material breach (other than an unintentional material breach) of this Agreement by the Company or pursuant to Section 7.1(g), and, (ii) prior to the time of such termination a BONA FIDE Takeover Proposal with respect to the Company has been publicly made or otherwise made known to the Board of Directors of the Company or its stockholders and not irrevocably withdrawn prior to termination, and (iii) a definitive agreement or letter of intent is entered into by the Company with respect to a Takeover Proposal, or a Takeover Proposal is consummated, within 12 months of such termination of this Agreement, the Company shall, on the earlier of the date such agreement or letter of intent is entered into or Takeover Proposal consummated, pay by wire transfer of same-day funds the Termination Fee is not payable pursuant to subsection (b)(iii) Parent; PROVIDED, HOWEVER, that for the purpose of this Section 8.37.3(d), then all references in the definition of Takeover Proposal to "25%" shall instead be deemed to refer to "a majority".
(e) In the event that Parent shall terminate this Agreement pursuant to Section 7.1(c) (iv), then, upon such termination, the Company shall pay by wire transfer of same-day funds to ParentParent the Termination Fee; PROVIDED, HOWEVER, that for the purpose of this Section 7.3(e), all references in the definition of Takeover Proposal to "25%" shall instead be deemed to refer to "a majority".
(f) In no event shall the Company be obligated to pay to Parent under this Section 7.3 an aggregate amount in excess of the Termination Fee and any amounts owed to Parent pursuant to Section 7.3(a) except that termination will not relieve a breaching party from liability for fraud or any willful material breach of this Agreement giving rise to such termination.
(g) The Company acknowledges that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Parent would not enter into this Agreement; accordingly, if the Company fails promptly to pay any amount due pursuant to this Section 7.3, and, in same day funds within three order to obtain such payment, the Parent commences a suit which results in a judgment against the Company for the payment set forth in this Section 7.3, the Company shall reimburse the Parent's costs and expenses (3including reasonable attorneys' fees) Business Days of in connection with such suit, together with interest on any amount due pursuant to this Section 7.3 from the date such amount becomes payable until the date of termination, a sum equal such payment at the prime rate published in THE WALL STREET JOURNAL in effect on the date such payment was required to all of Parent's Expenses (other than any such Expenses previously paid by the Company)be made.
Appears in 1 contract
Samples: Merger Agreement (E Loan Inc)
Expenses and Termination Fee. (a) Except as otherwise set forth in Subject to subsections (b), (c) and (d) of this Section 8.3, regardless of whether or not the Closing occursMerger is consummated, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby (including, without limitation, the parties hereto fees and expenses of its advisers, brokers, finders, agents, accountants and legal counsel) shall pay their own Expenses arising after April 10be paid by the party incurring such expense, 2002it being understood and agreed that expenses incurred in connection with printing the Offer Documents, Schedule 14D-9 and Proxy Statement, and registration and filing fees incurred in connection with the Offer Documents, Schedule 14D-9 and Proxy Statement and filing fees associated with compliance with applicable regulatory requirements in connection with the Merger shall be shared equally by the Company and Parent.
(b) Without limiting any other remedies available to Parent for any willful or intentional breach of this Agreement, in In the event that either (iA) the Company shall terminate this Agreement pursuant to Section 8.1(e) or (B) Parent shall terminate this Agreement pursuant to Section 8.1(d8.1(c) or Section 8.1(f(ii), (iiiii) or (iv), the Company shall pay to Parent the Termination Fee.
(c) In the event that (A) any of (i) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(b)(i8.1(b), (ii) without the Shareholders' Meeting having occurred (provided that the sole reason for the failure of the Shareholders' Meeting Parent shall terminate this Agreement pursuant to have occurred shall not be the failure of the SEC to approve the Proxy StatementSection 8.1(c)(i), notwithstanding the Company's best efforts to obtain such approval) or (iii) Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g), (B) and at any time after the date of this Agreement and prior to the Shareholders' Meeting time of such termination there shall have been a Competing Proposed Transaction Takeover Proposal with respect to the Company, and the Company shall have executed (C) a definitive agreement or letter of intent is entered into by the Company with respect to such Competing Proposed Transaction, a Takeover Proposal or such Competing Proposed Transaction shall have been a Takeover Proposal is consummated within nine twelve (12) months of such terminationtermination of this Agreement, then the Company shall pay to the Company (the "Termination Fee") a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company), and an additional amount equal to $300,000. Any Termination Fee shall be paid by wire transfer in same day funds to the account or accounts designated by Parent within three Business Days of the date of terminationParent.
(cd) In the event that Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and the a Termination Fee is not payable pursuant to subsection (b)(iii) of this Section 8.3Parent, then the Company shall pay the Termination Fee to Parent, in same day funds within three Parent (3i) Business Days of on the date of termination, in the event that the Termination Fee is payable pursuant to Section 8.3(b) as a sum equal to all result of Parent's Expenses (other than any such Expenses previously paid termination of this Agreement by the Company, (ii) at the time of consummation of the Takeover Proposal, in the event that the Termination Fee is payable pursuant to Section 8.3(c) and (iv) in all other cases within fifteen (15) days after the date of termination. In no event shall the Company be obligated to pay to Parent an amount in excess of the Termination Fee and any amounts owed to Parent pursuant to Section 8.3(a).
(e) In the event that the Company fails to pay when due any amount payable under this Section 8.3 and Parent commences a suit which results in a judgment against the Company for the Termination Fee, then (i) the Company shall reimburse Parent for all costs and expenses (including disbursements and reasonable fees of counsel) incurred in connection with such suit, together with interest on the Termination Fee (for the period commencing as of the date the Termination Fee was originally required to be paid and ending on the date the Termination Fee is actually paid to Parent in full) at a rate per annum equal to the "prime rate" (as announced by Bank of America, N.A.) in effect on the date the Termination Fee was originally required to be paid.
Appears in 1 contract
Expenses and Termination Fee. (a) Except as otherwise set forth provided in Section 8.04(b), (c) and (d), all expenses incurred in connection with this Section 8.3, regardless Agreement and the consummation of whether the Closing occurs, transactions contemplated hereby shall be paid by the parties hereto party incurring such expenses. Any such expenses incurred by the Company and not paid before the Effective Time shall pay their own Expenses arising after April 10, 2002be liabilities of the Surviving Corporation.
(b) Without limiting If this Agreement is terminated under Section 7.01 and if Buyer is entitled to a Termination Fee (as defined below) under paragraph (c) or (d) of this Section 8.04, then the Company shall, at the same time as the Termination Fee is required to be paid under paragraph (c) or (d) of this Section 8.04, pay Buyer an amount equal to all reasonable, documented out-of-pocket expenses incurred by or on behalf of Buyer or Buyer Subsidiary in connection with the negotiation, preparation, financing, execution or consummation of this Agreement and the transactions contemplated hereby, including reasonable legal, accounting, travel, filing, printing, financing commitment and other out-of-pocket expenses; provided, however, that the aggregate expenses payable by the Company to Buyer under this Section 8.04(b) shall not exceed $100,000.
(c) The Company shall, within five business days after consummation of a Third-Party Transaction referenced in (iii) below, pay Buyer a fee of $2,000,000 (a "TERMINATION FEE"), in addition to the expenses set forth in Section 8.04(b), if each of the following occurs:
(i) this Agreement is terminated (A) by Buyer under Section 7.01(b) or (c)(i) and the condition giving rise to Buyer's right of termination resulted from a breach by the Company of any other remedies available to Parent for any willful of its representations, warranties or intentional breach of covenants contained in this Agreement, (B) by Buyer under Section 7.01(c)(ii), or (C) by the Company under Section 7.01(d)(ii); and
(ii) before such breach (in the event case of termination under Section 7.01(b) or (c)(i)) or the first meeting of the shareholders of the Company called for purposes of approving this Agreement (in the case of termination under Section 7.01(c)(ii) or (d)(ii)) (A) any person or group shall have informed the Company that such person or group proposes, intends to propose, is considering proposing, or will or may, if the Merger is delayed, abandoned or not approved by the Company's shareholders, propose, a Third-Party Transaction (as defined below), or (B) any such person or group or the Company publicly announces (including any filing with any federal or state office or agency) that such person or group has proposed, intends to propose, is considering proposing, or will or may, if the Merger is delayed, abandoned or not approved by the Company's shareholders, propose, a transaction which, if consummated, would constitute a Third-Party Transaction; and
(iii) within six months after such termination a Third-Party Transaction with such person or group is consummated.
(d) If this Agreement is terminated by the Company under Section 7.01(e), the Company shall, within five business days after termination, pay Buyer a Termination Fee of $2,000,000, in addition to the expenses set forth in Section 8.04(b).
(e) As used herein, "THIRD-PARTY TRANSACTION" means the occurrence of any of the following events:
(i) Parent shall terminate this Agreement pursuant to Section 8.1(d) the acquisition of the Company by merger, consolidation, statutory share exchange or Section 8.1(fother business combination transaction by any person other than Buyer, Buyer Subsidiary or any affiliate thereof (a "THIRD PARTY"), in which transaction the holders of shares of Company Common Stock immediately before the transaction receive a per-share consideration in excess of the Merger Consideration;
(ii) Parent the acquisition by any Third Party of 50% or more (in book value or market value) of the total assets of the Company shall terminate this Agreement pursuant to Section 8.1(b)(i) without the Shareholders' Meeting having occurred (provided and its Subsidiaries, taken as a whole, for consideration that the sole reason indicates a total value for the failure Company and its Subsidiaries in excess of the Shareholders' Meeting to have occurred shall not be the failure sum of (A) product of the SEC to approve the Proxy Statement, notwithstanding the Company's best efforts to obtain such approval) or (iii) Parent or the number of shares of Company shall terminate this Agreement pursuant to Section 8.1(g) and at any time after Common Stock outstanding on the date of this Agreement multiplied by the Merger Consideration, plus (B) the aggregate of the Option Settlement Amounts for all Options outstanding on the date of this Agreement; or
(iii) the acquisition by a Third Party of 50% or more of the outstanding shares of Company Common Stock, whether by tender offer, exchange offer or otherwise, for a per-share consideration in excess of the Merger Consideration.
(f) In no event shall more than one Termination Fee be payable under this Section 8.04. The right to receive a Termination Fee shall be the sole and prior to exclusive remedy of Buyer and Buyer Subsidiary against the Shareholders' Meeting there shall have been a Competing Proposed Transaction Company and any of its Subsidiaries and their respective directors, officers, employees, attorneys, agents, advisors or other representatives with respect to the Company, and the Company shall have executed a definitive agreement with respect occurrences giving rise to such Competing Proposed Transaction, or such Competing Proposed Transaction shall have been consummated within nine months of such termination, then the Company shall pay to the Company (the "Termination Fee") a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company), and an additional amount equal to $300,000. Any Termination Fee shall be paid by wire transfer in same day funds to the account or accounts designated by Parent within three Business Days of the date of terminationpayment.
(c) In the event that Parent or the Company shall terminate this Agreement pursuant to Section 8.1(g) and the Termination Fee is not payable pursuant to subsection (b)(iii) of this Section 8.3, then the Company shall pay to Parent, in same day funds within three (3) Business Days of the date of termination, a sum equal to all of Parent's Expenses (other than any such Expenses previously paid by the Company).
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