Expenses and Termination Payments. (a) Except as otherwise provided herein, the Parties agree that all costs and expenses of the Parties relating to the Arrangement and the transactions contemplated in this Agreement, including legal fees, accounting fees, financial advisory fees, strategic advisory fees, regulatory filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, shall be paid by the Party incurring such expenses. Each Party represents to the other that with the exception of (i) the respective strategic advisors and financial advisors and their Affiliates, the fees and expenses of which shall be the responsibility of the relevant Party (and are subject to the limitation on the aggregate amount thereof set forth in this Agreement) and (ii) the reasonable and customary fees payable to the Board of a Party for any meetings held by them in connection with the consideration of the Arrangement and the transactions contemplated herein or fees payable to the members of any independent committee of a Board of a Party formed for the purpose of considering the Arrangement and the transactions contemplated herein, no securityholder, director, officer, employee, consultant, broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission, or to the reimbursement of any of its expenses, in connection with the Arrangement or the transactions contemplated herein except pursuant to existing consulting arrangements that were not entered into in contemplation of the Arrangements or the transactions contemplated herein. (b) A Termination Payment shall be payable by Fission to Xxxxxxx in the event that the Agreement is terminated in the following circumstances (each being a “Fission Termination Payment Event”): (i) By Xxxxxxx pursuant to Subsection 8.2(a)(iii)A or by Fission pursuant to Subsection 8.2(a)(iv)C; (ii) By either party pursuant to Subsection 8.2(a)(ii)C, but only if prior to such Fission Meeting, a bona fide Acquisition Proposal, or the intention to enter a bona fide Acquisition Proposal with respect to Fission, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such Acquisition Proposal or an affiliate of such Person A. directly or indirectly acquires Fission by takeover bid, arrangement, business combination or otherwise; B. directly or indirectly acquires the assets of Fission or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Fission; (2) generate more than 50% of the consolidated revenue of Fission; or (3) generate more than 50% of the consolidated operating income of Fission; C. directly or indirectly acquires more than 50% of the voting or equity securities of Fission; or D. Fission enters into a definitive agreement in respect of or Fission’s Board approves or recommends a transaction contemplated by (A), (B) or (C) above with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter. (c) If a Fission Termination Payment Event occurs, Fission shall pay the Termination Payment to Xxxxxxx as liquidated damages in consideration of Xxxxxxx’x rights under this Agreement by wire transfer of immediately available funds, as follows: (i) if the Termination Payment is payable pursuant to Subsection 8.3(b)(i), the Termination Payment shall be payable within two (2) Business Days following such termination; (ii) If the Termination Payment is payable pursuant to Subsection 8.3(b)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D). (d) A Termination Payment shall be payable by Xxxxxxx to Fission in the event that the Agreement is terminated in the following circumstances (each being a “Xxxxxxx Termination Payment Event”): (i) By Fission pursuant to Subsection 8.2(a)(iv)A or by Xxxxxxx pursuant to Subsection 8.2(a)(iii)C; (ii) By either party pursuant to Subsection 8.2(a)(ii)D, but only if prior to such Xxxxxxx Meeting, a bona fide Acquisition Proposal, or the intention to enter a bona fide Acquisition Proposal with respect to Xxxxxxx, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such Acquisition Proposal or an affiliate of such Person: A. directly or indirectly acquires Xxxxxxx by takeover bid, arrangement, business combination or otherwise; B. directly or indirectly acquires the assets of Xxxxxxx or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Xxxxxxx; (2) generate more than 50% of the consolidated revenue of Xxxxxxx; or (3) generate more than 50% of the consolidated operating income of Xxxxxxx; C. directly or indirectly acquires more than 50% of the voting or equity securities of Xxxxxxx; or X. Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of or Xxxxxxx’x Board approves or recommends a transaction contemplated by (A), (B) or (C) above, excluding a Permitted Transaction, with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter. (e) If a Xxxxxxx Termination Payment Event occurs, Xxxxxxx shall pay the Termination Payment to Fission as liquidated damages in consideration of Fission’s rights under this Agreement by wire transfer of immediately available funds, as follows: (i) if the Termination Payment is payable pursuant to Subsection 8.3(d)(i), the Termination Payment shall be payable within two (2) Business Days following such termination; (ii) If the Termination Payment is payable pursuant to Subsection 8.3(d)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D). (f) Each of the Parties hereby acknowledges that the Termination Payment to which they may become entitled to as a non-terminating Party is a payment of liquidated damages which is a genuine pre-estimate of the damages which such non-terminating Party will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and the transactions contemplated by this Agreement and is not a penalty. Each Party hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by a non-terminating Party of the Termination Payment, such non-terminating Party shall have no further claim against the other Party at Law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by the other Party of any of its obligations hereunder or otherwise to obtain specific performance).
Appears in 1 contract
Expenses and Termination Payments. (a) Except as otherwise provided herein, the Parties agree that all costs and expenses of the Parties relating to the Arrangement and the transactions contemplated in this Agreement, including legal fees, accounting fees, financial advisory fees, strategic advisory fees, regulatory filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, shall be paid by the Party incurring such expenses. Each Party represents to the other that with the exception of (i) the respective strategic advisors and financial advisors and their Affiliates, the fees and expenses of which shall be the responsibility of the relevant Party (and are subject to the limitation on the aggregate amount thereof set forth in this Agreement) and (ii) the reasonable and customary fees payable to the Board of a Party for any meetings held by them in connection with the consideration of the Arrangement and the transactions contemplated herein or fees payable to the members of any independent committee of a Board of a Party formed for the purpose of considering the Arrangement and the transactions contemplated herein, no securityholder, director, officer, employee, consultant, broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission, or to the reimbursement of any of its expenses, in connection with the Arrangement or the transactions contemplated herein except pursuant to existing consulting arrangements that were not entered into in contemplation of the Arrangements or the transactions contemplated herein.
(b) A The Termination Payment shall be payable by Fission Correvio to Xxxxxxx Purchaser in the event that the Agreement is terminated in the following circumstances (each being a “Fission Termination Payment Event”):
(i) By Xxxxxxx the termination of this Agreement pursuant to Subsection 8.2(a)(iii)A 8.2(a)(iii)A, 8.2(a)(iii)B or by Fission pursuant 8.2(a)(iii)D, in which case the Termination Payment shall be paid to Subsection 8.2(a)(iv)CPurchaser as soon as practicable and in any event within two (2) Business Days of the day on which this Agreement is terminated;
(ii) By either party the termination of this Agreement pursuant to Subsection 8.2(a)(ii)C8.2(a)(iv)B, but only if in which case the Termination Payment shall be paid to Purchaser concurrently with the earlier of the termination of this Agreement and the execution of a definitive agreement in respect of a Superior Proposal; or
(iii) the termination of this Agreement pursuant to Subsection 8.2(a)(ii)A, 8.2(a)(ii)C or 8.2(a)(iii)C if, in any such case, prior to such Fission the earlier of the termination of this Agreement or the holding of the Correvio Meeting, a bona fide (A) an Acquisition Proposal, or the intention to enter a bona fide make an Acquisition Proposal Proposal, with respect to Fission, has Correvio shall have been made to Correvio or publicly announced by any Person (other than Purchaser or any of its affiliates) and not withdrawn prior to the Correvio Meeting, and (B) within 6 nine (9) months after the earlier of the date of termination of this Agreement or the holding of the Correvio Meeting either (x) any Acquisition Proposal has been accepted, recommended, approved or entered into by the Correvio Board or by Correvio, and if applicable has not expired, been withdrawn or been publicly abandoned, in which case the Termination Payment shall be paid to Purchaser concurrently with the earlier of the date of such termination, the Person who made entry into such Acquisition Proposal or an affiliate the completion of such Person
A. Acquisition Proposal, or (y) any Person or company acquires, directly or indirectly acquires Fission by takeover bidindirectly, arrangement, business combination more than 50% of the issued and outstanding Correvio Shares or otherwise;
B. directly or indirectly acquires the assets of Fission or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Fission; Correvio under any Acquisition Proposal, in which case the Termination Payment shall be paid to Purchaser at the time that the Correvio Shares or assets of Correvio are acquired as described in this clause (2) generate more than 50% y). For the purpose of the consolidated revenue of Fission; or (3) generate more than 50% of the consolidated operating income of Fission;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Fission; or
D. Fission enters into a definitive agreement in respect of or Fission’s Board approves or recommends a transaction contemplated by (Athis Subsection 8.4(b)(iii), (B) or (C) above with the Person or term “Acquisition Proposal” shall have the meaning ascribed to such affiliate term in Section 1.1, except that made such Acquisition Proposal and that transaction is consummated at any time thereafterreferences to “20%” shall be deemed to be “50%”.
(c) If a Fission Termination Payment Event occurs, Fission shall pay the Termination Payment to Xxxxxxx as liquidated damages in consideration of Xxxxxxx’x rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(b)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(b)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(d) A Termination Payment shall be payable by Xxxxxxx to Fission in the event that the Agreement is terminated in the following circumstances (each being a “Xxxxxxx Termination Payment Event”):
(i) By Fission pursuant to Subsection 8.2(a)(iv)A or by Xxxxxxx pursuant to Subsection 8.2(a)(iii)C;
(ii) By either party pursuant to Subsection 8.2(a)(ii)D, but only if prior to such Xxxxxxx Meeting, a bona fide Acquisition Proposal, or the intention to enter a bona fide Acquisition Proposal with respect to Xxxxxxx, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such Acquisition Proposal or an affiliate of such Person:
A. directly or indirectly acquires Xxxxxxx by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Xxxxxxx or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Xxxxxxx; (2) generate more than 50% of the consolidated revenue of Xxxxxxx; or (3) generate more than 50% of the consolidated operating income of Xxxxxxx;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Xxxxxxx; or
X. Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of or Xxxxxxx’x Board approves or recommends a transaction contemplated by (A), (B) or (C) above, excluding a Permitted Transaction, with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter.
(e) If a Xxxxxxx Termination Payment Event occurs, Xxxxxxx shall pay the Termination Payment to Fission as liquidated damages in consideration of Fission’s rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(d)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(d)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(f) Each of the Parties Purchaser hereby acknowledges that the Termination Payment to which they it may become entitled to as a non-terminating Party is a payment of liquidated damages which is a genuine pre-estimate of the damages which such non-terminating Party it will suffer or incur as a result of the event giving rise to such damages and the resultant non-non- completion of the Arrangement and the transactions contemplated by this Agreement and is not a penalty. Each Party Correvio hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by a non-terminating Party Purchaser of the any Termination Payment, such non-terminating Party Purchaser shall have no further claim Claim against the other Party Correvio or Correvio at Law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by the other Party Correvio of any of its obligations hereunder or otherwise to obtain specific performance).
Appears in 1 contract
Samples: Arrangement Agreement
Expenses and Termination Payments. (a) Except as otherwise provided herein, the Parties agree that all costs and expenses of the Parties relating to the Arrangement and the transactions contemplated in this Agreement, including legal fees, accounting fees, financial advisory fees, strategic advisory fees, regulatory filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, shall be paid by the Party incurring such expenses. Each Party represents to the other that with the exception of (i) the respective strategic advisors and financial advisors and their Affiliates, the fees and expenses of which shall be the responsibility of the relevant Party (and are subject to the limitation on the aggregate amount thereof set forth in this Agreement) and (ii) the reasonable and customary fees payable to the Board of a Party for any meetings held by them in connection with the consideration of the Arrangement and the transactions contemplated herein or fees payable to the members of any independent committee of a Board of a Party formed for the purpose of considering the Arrangement and the transactions contemplated herein, no securityholder, director, officer, employee, consultant, broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission, or to the reimbursement of any of its expenses, in connection with the Arrangement or the transactions contemplated herein except pursuant to existing consulting arrangements that were not entered into in contemplation of the Arrangements or the transactions contemplated herein.
(b) A The Termination Payment shall be payable by Fission Meta to Xxxxxxx RTO Acquiror in the event that the this Agreement is terminated in the following circumstances (each being a “Fission Termination Payment Event”):circumstances:
(i) By Xxxxxxx pursuant to Subsection 8.2(a)(iii)A 8.2(a)(iii)B, Subsection 8.2(a)(iii)D or by Fission pursuant to Subsection 8.2(a)(iv)C;8.2(a)(iv)A; or
(ii) By either party pursuant to Subsection 8.2(a)(ii)C8.2(a)(ii)A, but only if Subsection 8.2(a)(ii)C or Subsection 8.2(a)(iii)C if, in any such case, prior to such Fission the earlier of the termination of this Agreement or the holding of the Meta Meeting, (A) a bona fide Meta Acquisition Proposal, or the intention to enter make a bona fide Meta Acquisition Proposal with respect to FissionProposal, has shall have been publicly announced by any Person (other than RTO Acquiror or any of its affiliates) and not withdrawn prior to such termination or holding of the Meta Meeting, and (B) within 6 twelve (12) months after the later of the date of such terminationtermination of this Agreement or the holding of the Meta Meeting, the Person who made such Acquisition Proposal or an affiliate of such Person
A. directly or indirectly acquires Fission by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Fission or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Fission; (2) generate more than 50% of the consolidated revenue of Fission; or (3) generate more than 50% of the consolidated operating income of Fission;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Fission; or
D. Fission enters Meta has entered into a definitive agreement in respect of or Fission’s Board approves or recommends a transaction contemplated by (A), (B) or (C) above with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter.
(c) If a Fission Termination Payment Event occurs, Fission shall pay the Termination Payment to Xxxxxxx as liquidated damages in consideration of Xxxxxxx’x rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(b)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(b)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(d) A Termination Payment shall be payable by Xxxxxxx to Fission in the event that the Agreement is terminated in the following circumstances (each being a “Xxxxxxx Termination Payment Event”):
(i) By Fission pursuant to Subsection 8.2(a)(iv)A or by Xxxxxxx pursuant to Subsection 8.2(a)(iii)C;
(ii) By either party pursuant to Subsection 8.2(a)(ii)D, but only if prior to such Xxxxxxx Meeting, a bona fide Acquisition Proposal, or the intention to enter a bona fide Acquisition Proposal with respect to Xxxxxxx, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such or consummated a Meta Acquisition Proposal or an affiliate of such Person:
A. directly or indirectly acquires Xxxxxxx by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Xxxxxxx or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Xxxxxxx; (2) generate more than 50% of the consolidated revenue of Xxxxxxx; or (3) generate more than 50% of the consolidated operating income of Xxxxxxx;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Xxxxxxx; or
X. Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of or Xxxxxxx’x Board approves or recommends a transaction contemplated by (A), (B) or (C) above, excluding a Permitted Transaction, with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter.
(e) If a Xxxxxxx Termination Payment Event occurs, Xxxxxxx shall pay the Termination Payment to Fission as liquidated damages in consideration of Fission’s rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(d)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(d)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(f) Each of the Parties hereby acknowledges that the Termination Payment to which they may become entitled to as a non-terminating Party is a payment of liquidated damages which is a genuine pre-estimate of the damages which such non-terminating Party will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and the transactions contemplated by this Agreement and is not a penalty. Each Party hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by a non-terminating Party of the Termination Payment, such non-terminating Party shall have no further claim against the other Party at Law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by the other Party of any of its obligations hereunder or otherwise to obtain specific performance).Proposal,
Appears in 1 contract
Samples: Arrangement Agreement
Expenses and Termination Payments. (a) Except as otherwise provided herein, the Parties agree that all costs and expenses of the Parties relating to the Arrangement and the transactions contemplated in this Agreement, including legal fees, accounting fees, financial advisory fees, strategic advisory fees, regulatory filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, shall be paid by the Party incurring such expenses. Each Party represents to the other that with the exception of (i) the respective legal advisors, strategic advisors and financial advisors and their Affiliatesaffiliates, the fees and expenses of which shall be the responsibility of the relevant Party (and are subject to the limitation on the aggregate amount thereof set forth in this Agreement) and (iib) the reasonable and customary fees payable to the Board of a Party for any meetings held by them in connection with the consideration of the Arrangement and the transactions contemplated herein or fees payable to the members of any independent committee of a Board board of a Party formed for the purpose of considering the Arrangement and the transactions contemplated herein, no securityholder, director, officer, employee, consultant, broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission, or to the reimbursement of any of its expenses, in connection with the Arrangement or the transactions contemplated herein except pursuant to existing consulting arrangements that were not entered into in contemplation of the Arrangements or the transactions contemplated herein.
(b) A The Company Termination Payment shall be payable by Fission Company to Xxxxxxx Newmarket in the event that the Agreement is terminated in the following circumstances (each being a “Fission Company Termination Payment Event”):
(i) By Xxxxxxx by Newmarket pursuant to Subsection 8.2(a)(iii)A (but not including a termination by Newmarket pursuant to Subsection 8.2(a)(iii)A in circumstances where the Change in Recommendation resulted from the occurrence of a Material Adverse Effect in respect of the Company) or by Fission Company pursuant to Subsection 8.2(a)(iv)C;
(ii) By by either party pursuant to Subsection 8.2(a)(ii)C, but only if prior to such Fission Company Meeting, a bona fide Acquisition Proposal, or the intention to enter make a bona fide Acquisition Proposal with respect to FissionCompany, has been publicly announced and not withdrawn and within 6 12 months of the date of such termination, the Person who made :
A. such Acquisition Proposal or an affiliate of such Person
A. directly or indirectly acquires Fission is consummated by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Fission or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Fission; (2) generate more than 50% of the consolidated revenue of Fission; or (3) generate more than 50% of the consolidated operating income of Fission;
C. directly or indirectly acquires more than 50% of the voting or equity securities of FissionCompany; or
D. Fission enters into a definitive agreement in respect of or Fission’s Board approves or recommends a transaction contemplated by (A), (B) or (C) above with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter.
(c) If a Fission Termination Payment Event occurs, Fission shall pay the Termination Payment to Xxxxxxx as liquidated damages in consideration of Xxxxxxx’x rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(b)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(b)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(d) A Termination Payment shall be payable by Xxxxxxx to Fission in the event that the Agreement is terminated in the following circumstances (each being a “Xxxxxxx Termination Payment Event”):
(i) By Fission pursuant to Subsection 8.2(a)(iv)A or by Xxxxxxx pursuant to Subsection 8.2(a)(iii)C;
(ii) By either party pursuant to Subsection 8.2(a)(ii)D, but only if prior to such Xxxxxxx Meeting, a bona fide Acquisition Proposal, or the intention to enter a bona fide Acquisition Proposal with respect to Xxxxxxx, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such Acquisition Proposal or an affiliate of such Person:
A. directly or indirectly acquires Xxxxxxx by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Xxxxxxx or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Xxxxxxx; (2) generate more than 50% of the consolidated revenue of Xxxxxxx; or (3) generate more than 50% of the consolidated operating income of Xxxxxxx;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Xxxxxxx; or
X. Xxxxxxx Company and/or one or more of its subsidiaries enters into a definitive agreement in respect of of, or Xxxxxxx’x the Company Board approves or recommends a transaction contemplated by (A), (B) or (C) above, excluding a Permitted Transaction, with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter, provided that, for the purposes of this Section 8.2(c), all references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”.
(ec) If a Xxxxxxx Company Termination Payment Event occurs, Xxxxxxx Company shall pay the Company Termination Payment to Fission Newmarket as liquidated damages in consideration of FissionNewmarket’s rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Company Termination Payment is payable pursuant to Subsection 8.3(b)(i), the Company Termination Payment shall be payable prior to or simultaneously with such termination;
(ii) If the Company Termination Payment is payable pursuant to Subsection 8.3(b)(ii), the Company Termination Payment shall be payable concurrently upon the earlier of the events referred to in that clause and any Termination Expense Reimbursement paid shall be credited towards payment of the Company Termination Payment.
(d) The Newmarket Termination Payment shall be payable by Newmarket to Company in the event that the Agreement is terminated in the following circumstances (each being a “Newmarket Termination Payment Event”):
(i) by Company pursuant to Subsection 8.2(a)(iv)A (but not including a termination by Company pursuant to Subsection 8.2(a)(iv)A in circumstances where the Change in Recommendation resulted from the occurrence of a Material Adverse Effect in respect of Newmarket) or by Newmarket pursuant to Subsection 8.2(a)(iii)C;
(ii) by either party pursuant to Subsection 8.2(a)(ii)D, but only if prior to such Newmarket Meeting, a bona fide Acquisition Proposal, or the intention to make a bona fide Acquisition Proposal with respect to Newmarket, has been publicly announced and not withdrawn and within 12 months of the date of such termination:
A. such Acquisition Proposal is consummated by Newmarket; or
B. Newmarket and/or one or more of its subsidiaries enters into a definitive agreement in respect of, or the Newmarket Board approves or recommends such Acquisition Proposal and that transaction is consummated at any time thereafter; provided that, for the purposes of this Section 8.3(d)(ii), all references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”.
(e) If a Newmarket Termination Payment Event occurs, Newmarket shall pay the Newmarket Termination Payment to Company as liquidated damages in consideration of Company’s rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Newmarket Termination Payment is payable pursuant to Subsection 8.3(d)(i), the Termination Payment shall be payable within two (2) Business Days following prior to or simultaneously with such termination;
(ii) If the Newmarket Termination Payment is payable pursuant to Subsection 8.3(d)(ii), the Newmarket Termination Payment shall be payable concurrently upon the earlier of the events referred to in that clause (D)and any Termination Expense Reimbursement paid shall be credited towards payment of the Term Newmarket Termination Payment.
(f) Each of the Parties hereby acknowledges that the Company Termination Payment or the Newmarket Termination Payment, as applicable, to which they may become entitled to as a non-non- terminating Party is a payment of liquidated damages which is a genuine pre-estimate of the damages which such non-terminating Party will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and the transactions contemplated by this Agreement (including, but not limited to, out-of-pocket expenditures, opportunity costs and reputational damage) and is not a penalty. Each Party hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by a non-terminating Party of the Company Termination Payment or the Newmarket Termination Payment, as applicable, such non-terminating Party shall have no further claim against the other Party at Law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by the other Party of any of its obligations hereunder or otherwise to obtain specific performance).
Appears in 1 contract
Expenses and Termination Payments. (a) Except as otherwise provided herein, the Parties agree that all costs and expenses of the Parties relating to the Arrangement and the transactions contemplated in this Agreement, including legal fees, accounting fees, financial advisory fees, strategic advisory fees, regulatory filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, shall be paid by the Party incurring such expenses. Each Party represents to the other that with the exception of (i) the respective strategic advisors and financial advisors and their Affiliates, the fees and expenses of which shall be the responsibility of the relevant Party (and are subject to the limitation on the aggregate amount thereof set forth in this Agreement) and (ii) the reasonable and customary fees payable to the Board of a Party for any meetings held by them in connection with the consideration of the Arrangement and the transactions contemplated herein or fees payable to the members of any independent committee of a Board of a Party formed for the purpose of considering the Arrangement and the transactions contemplated herein, no securityholder, director, officer, employee, consultant, broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission, or to the reimbursement of any of its expenses, in connection with the Arrangement or the transactions contemplated herein except pursuant to existing consulting arrangements that were not entered into in contemplation of the Arrangements or the transactions contemplated herein.
(b) A The Termination Payment shall be payable by Fission Terrace to Xxxxxxx Purchaser in the event that the Agreement is terminated in the following circumstances (each being a “Fission Termination Payment Event”):circumstances:
(i) By Xxxxxxx the termination of this Agreement pursuant to Subsection 8.2(a)(iii)A 8.2(a)(iii)A, 8.2(a)(iii)B or by Fission pursuant 8.2(a)(iii)E, in which case the Termination Payment shall be paid to Subsection 8.2(a)(iv)CPurchaser as soon as practicable and in any event within two (2) Business Days of the day on which this Agreement is terminated;
(ii) By either party the termination of this Agreement pursuant to Subsection 8.2(a)(ii)C8.2(a)(iv)B, but only if in which case the Termination Payment shall be paid to Purchaser concurrently with the earlier of the termination of this Agreement and the execution of a definitive agreement in respect of a Superior Proposal; or
(iii) the termination of this Agreement pursuant to Subsection 8.2(a)(ii)A, 8.2(a)(ii)C or 8.2(a)(iii)C if, in any such case, prior to such Fission the earlier of the termination of this Agreement or the holding of the Terrace Meeting, a bona fide (A) an Acquisition Proposal, or the intention to enter a bona fide make an Acquisition Proposal Proposal, with respect to Fission, has Terrace shall have been made to Terrace and made known to Terrace Shareholders or publicly announced by any Person (other than Purchaser or any of its affiliates) and not withdrawn prior to the Terrace Meeting, and (B) within 6 twelve (12) months after the later of the date of such terminationtermination of this Agreement or the holding of the Terrace Meeting either (x) any Acquisition Proposal has been accepted, recommended, approved or entered into by the Person who made Terrace Board or by Terrace, and if applicable has not expired, been withdrawn or been publicly abandoned, in which case the Termination Payment shall be paid to Purchaser concurrently with the completion, consummation or effectiveness of such Acquisition Proposal (whether or an affiliate of not such Person
A. Acquisition Proposal is completed, consummated or effected during or after such twelve (12) month period), or (y) any Person or company acquires, directly or indirectly acquires Fission by takeover bidindirectly, arrangement, business combination more than 50% of the issued and outstanding Terrace Shares or otherwise;
B. directly or indirectly acquires the assets of Fission or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Fission; Terrace under any Acquisition Proposal, in which case the Termination Payment shall be paid to Purchaser at the time that the Terrace Shares or assets of Terrace are acquired as described in this clause (2) generate more than 50% y). For the purpose of the consolidated revenue of Fission; or (3) generate more than 50% of the consolidated operating income of Fission;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Fission; or
D. Fission enters into a definitive agreement in respect of or Fission’s Board approves or recommends a transaction contemplated by (Athis Subsection 8.3(b)(iii), (B) or (C) above with the Person or term “Acquisition Proposal” shall have the meaning ascribed to such affiliate term in Section 1.1, except that made such Acquisition Proposal and that transaction is consummated at any time thereafterreferences to “20%” shall be deemed to be “50%”.
(c) If a Fission Termination Payment Event occurs, Fission shall pay the Termination Payment to Xxxxxxx as liquidated damages in consideration of Xxxxxxx’x rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(b)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(b)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(d) A Termination Payment shall be payable by Xxxxxxx to Fission in In the event that the this Agreement is terminated in the following circumstances (each being a “Xxxxxxx Termination Payment Event”):
(i) By Fission by Terrace or Purchaser pursuant to Subsection 8.2(a)(iv)A Section 8.2(a)(ii)D or by Xxxxxxx Terrace pursuant to Subsection 8.2(a)(iii)C;
(ii) By either party pursuant to Subsection 8.2(a)(ii)DSection 8.2(a)(iv)C, but only if prior to such Xxxxxxx Meeting, a bona fide Acquisition Proposal, or then the intention to enter a bona fide Acquisition Proposal with respect to Xxxxxxx, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such Acquisition Proposal or an affiliate of such Person:
A. directly or indirectly acquires Xxxxxxx by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Xxxxxxx or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Xxxxxxx; (2) generate more than 50% of the consolidated revenue of Xxxxxxx; or (3) generate more than 50% of the consolidated operating income of Xxxxxxx;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Xxxxxxx; or
X. Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of or Xxxxxxx’x Board approves or recommends a transaction contemplated by (A), (B) or (C) above, excluding a Permitted Transaction, with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter.
(e) If a Xxxxxxx Termination Payment Event occurs, Xxxxxxx Purchaser shall pay the Termination Payment to Fission as liquidated damages in consideration of Fission’s rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(d)(i), the Termination Payment shall be payable Terrace within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(d)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(f) Each of the Parties hereby acknowledges that the Termination Payment to which they may become entitled to as a non-terminating Party is a payment of liquidated damages which is a genuine pre-estimate of the damages which such non-terminating Party will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and the transactions contemplated by this Agreement and is not a penalty. Each Party hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by a non-terminating Party of the Termination Payment, such non-terminating Party shall have no further claim against the other Party at Law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by the other Party of any of its obligations hereunder or otherwise to obtain specific performance).two
Appears in 1 contract
Samples: Arrangement Agreement
Expenses and Termination Payments. (a) Except as otherwise provided herein, the Parties agree that all costs and expenses of the Parties relating to the Arrangement and the transactions contemplated in this Agreement, including legal fees, accounting fees, financial advisory fees, strategic advisory fees, regulatory filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, shall be paid by the Party incurring such expenses. Each Party represents to the other that with the exception of (i) the respective strategic advisors and financial advisors and their Affiliates, the fees and expenses of which shall be the responsibility of the relevant Party (and are subject to the limitation on the aggregate amount thereof set forth in this Agreement) and (ii) the reasonable and customary fees payable to the Board of a Party for any meetings held by them in connection with the consideration of the Arrangement and the transactions contemplated herein or fees payable to the members of any independent committee of a Board of a Party formed for the purpose of considering the Arrangement and the transactions contemplated herein, no securityholder, director, officer, employee, consultant, broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission, or to the reimbursement of any of its expenses, in connection with the Arrangement or the transactions contemplated herein except pursuant to existing consulting arrangements that were not entered into in contemplation of the Arrangements or the transactions contemplated herein.
(b) A The Termination Payment shall be payable by Fission Correvio to Xxxxxxx Purchaser in the event that the Agreement is terminated in the following circumstances (each being a “Fission Termination Payment Event”):
(i) By Xxxxxxx the termination of this Agreement pursuant to Subsection 8.2(a)(iii)A 8.2(a)(iii)A, 8.2(a)(iii)B or by Fission pursuant 8.2(a)(iii)D, in which case the Termination Payment shall be paid to Subsection 8.2(a)(iv)CPurchaser as soon as practicable and in any event within two (2) Business Days of the day on which this Agreement is terminated;
(ii) By either party the termination of this Agreement pursuant to Subsection 8.2(a)(ii)C8.2(a)(iv)B, but only if in which case the Termination Payment shall be paid to Purchaser concurrently with the earlier of the termination of this Agreement and the execution of a definitive agreement in respect of a Superior Proposal; or
(iii) the termination of this Agreement pursuant to Subsection 8.2(a)(ii)A, 8.2(a)(ii)C or 8.2(a)(iii)C if, in any such case, prior to such Fission the earlier of the termination of this Agreement or the holding of the Correvio Meeting, a bona fide (A) an Acquisition Proposal, or the intention to enter a bona fide make an Acquisition Proposal Proposal, with respect to Fission, has Correvio shall have been made to Correvio or publicly announced by any Person (other than Purchaser or any of its affiliates) and not withdrawn prior to the Correvio Meeting, and (B) within 6 nine (9) months after the earlier of the date of termination of this Agreement or the holding of the Correvio Meeting either (x) any Acquisition Proposal has been accepted, recommended, approved or entered into by the Correvio Board or by Correvio, and if applicable has not expired, been withdrawn or been publicly abandoned, in which case the Termination Payment shall be paid to Purchaser concurrently with the earlier of the date of such termination, the Person who made entry into such Acquisition Proposal or an affiliate the completion of such Person
A. Acquisition Proposal, or (y) any Person or company acquires, directly or indirectly acquires Fission by takeover bidindirectly, arrangement, business combination more than 50% of the issued and outstanding Correvio Shares or otherwise;
B. directly or indirectly acquires the assets of Fission or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Fission; Correvio under any Acquisition Proposal, in which case the Termination Payment shall be paid to Purchaser at the time that the Correvio Shares or assets of Correvio are acquired as described in this clause (2) generate more than 50% y). For the purpose of the consolidated revenue of Fission; or (3) generate more than 50% of the consolidated operating income of Fission;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Fission; or
D. Fission enters into a definitive agreement in respect of or Fission’s Board approves or recommends a transaction contemplated by (Athis Subsection 8.4(b)(iii), (B) or (C) above with the Person or term “Acquisition Proposal” shall have the meaning ascribed to such affiliate term in Section 1.1, except that made such Acquisition Proposal and that transaction is consummated at any time thereafterreferences to “20%” shall be deemed to be “50%”.
(c) If a Fission Termination Payment Event occurs, Fission shall pay the Termination Payment to Xxxxxxx as liquidated damages in consideration of Xxxxxxx’x rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(b)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(b)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(d) A Termination Payment shall be payable by Xxxxxxx to Fission in the event that the Agreement is terminated in the following circumstances (each being a “Xxxxxxx Termination Payment Event”):
(i) By Fission pursuant to Subsection 8.2(a)(iv)A or by Xxxxxxx pursuant to Subsection 8.2(a)(iii)C;
(ii) By either party pursuant to Subsection 8.2(a)(ii)D, but only if prior to such Xxxxxxx Meeting, a bona fide Acquisition Proposal, or the intention to enter a bona fide Acquisition Proposal with respect to Xxxxxxx, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such Acquisition Proposal or an affiliate of such Person:
A. directly or indirectly acquires Xxxxxxx by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Xxxxxxx or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Xxxxxxx; (2) generate more than 50% of the consolidated revenue of Xxxxxxx; or (3) generate more than 50% of the consolidated operating income of Xxxxxxx;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Xxxxxxx; or
X. Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of or Xxxxxxx’x Board approves or recommends a transaction contemplated by (A), (B) or (C) above, excluding a Permitted Transaction, with the Person or such affiliate that made such Acquisition Proposal and that transaction is consummated at any time thereafter.
(e) If a Xxxxxxx Termination Payment Event occurs, Xxxxxxx shall pay the Termination Payment to Fission as liquidated damages in consideration of Fission’s rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(d)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(d)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(f) Each of the Parties Purchaser hereby acknowledges that the Termination Payment to which they it may become entitled to as a non-terminating Party is a payment of liquidated damages which is a genuine pre-estimate of the damages which such non-terminating Party it will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and the transactions contemplated by this Agreement and is not a penalty. Each Party Correvio hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by a non-terminating Party Purchaser of the any Termination Payment, such non-terminating Party Purchaser shall have no further claim Claim against the other Party Correvio or Correvio at Law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by the other Party Correvio of any of its obligations hereunder or otherwise to obtain specific performance).
Appears in 1 contract
Expenses and Termination Payments. (a) Except as otherwise provided herein, the Parties agree that all costs and expenses of the Parties relating to the Arrangement and the transactions contemplated in this Agreement, including legal fees, accounting fees, financial advisory fees, strategic advisory fees, regulatory filing fees, stock exchange fees, all disbursements of advisors and printing and mailing costs, shall be paid by the Party incurring such expenses. Each Party represents to the other that with the exception of (i) the respective strategic advisors and financial advisors and their Affiliates, the fees and expenses of which shall be the responsibility of the relevant Party (and are subject to the limitation on the aggregate amount thereof set forth in this Agreement) and (ii) the reasonable and customary fees payable to the Board of a Party for any meetings held by them in connection with the consideration of the Arrangement and the transactions contemplated herein or fees payable to the members of any independent committee of a Board of a Party formed for the purpose of considering the Arrangement and the transactions contemplated herein, no securityholder, director, officer, employee, consultant, broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission, or to the reimbursement of any of its expenses, in connection with the Arrangement or the transactions contemplated herein except pursuant to existing consulting arrangements that were not entered into in contemplation of the Arrangements or the transactions contemplated herein.
(b) A The Termination Payment shall be payable by Fission Meta to Xxxxxxx RTO Acquiror in the event that the this Agreement is terminated in the following circumstances (each being a “Fission Termination Payment Event”):circumstances:
(i) By Xxxxxxx pursuant to Subsection 8.2(a)(iii)A 8.2(a)(iii)B, Subsection 8.2(a)(iii)D or by Fission pursuant to Subsection 8.2(a)(iv)C;8.2(a)(iv)A; or
(ii) By either party pursuant to Subsection 8.2(a)(ii)C8.2(a)(ii)A, but only if Subsection 8.2(a)(ii)C or Subsection 8.2(a)(iii)C if, in any such case, prior to such Fission the earlier of the termination of this Agreement or the holding of the Meta Meeting, (A) a bona fide Meta Acquisition Proposal, or the intention to enter make a bona fide Meta Acquisition Proposal with respect to FissionProposal, has shall have been publicly announced by any Person (other than RTO Acquiror or any of its affiliates) and not withdrawn prior to such termination or holding of the Meta Meeting, and (B) within 6 twelve (12) months after the later of the date of such terminationtermination of this Agreement or the holding of the Meta Meeting, the Person who made such Acquisition Proposal or an affiliate of such Person
A. directly or indirectly acquires Fission by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Fission or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Fission; Meta has entered into a definitive agreement with respect to or consummated a Meta Acquisition Proposal, (2) generate more than 50% of a Meta Acquisition Proposal has been publicly accepted or recommended by the consolidated revenue of Fission; Meta Board, or (3) generate a Meta Acquisition Proposal has been approved by or submitted for approval to the Meta Shareholders. For the purpose of this Subsection 8.3(b)(ii), the term “Meta Acquisition Proposal” shall have the meaning ascribed to such term in Section 1.1, except that references to “20%” shall be deemed to be “more than 50% %”. For the avoidance of doubt, the consolidated operating income of Fission;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Fission; or
D. Fission enters into a definitive agreement Meta Acquisition Proposal referred to in respect of or Fission’s Board approves or recommends a transaction contemplated by clauses (AB)(1), (BB)(2) or and (CB)(3) above with of this Subsection need not be the Person or such affiliate that made such same Meta Acquisition Proposal and that transaction is consummated at any time thereafter.
(c) If a Fission was made to Meta or publicly announced prior to the termination of this Agreement or holding of the Meta Meeting. The Termination Payment Event occurs, Fission shall pay the Termination Payment to Xxxxxxx as liquidated damages in consideration of Xxxxxxx’x rights under this Agreement be made by Meta by wire transfer of immediately available same-day funds, as follows:
to an account designated by RTO Acquiror, (ix) if in the Termination Payment event that this Agreement is payable terminated pursuant to Subsection 8.3(b)(i)8.2(a)(iv)A, simultaneously with, and as a condition to the Termination Payment shall be payable effectiveness of, such termination, (y) in the event that this Agreement is terminated pursuant to Subsection 8.2(a)(iii)B or Subsection 8.2(a)(iii)D, as soon as practicable, and in any event within two (2) Business Days following such termination;
of the date on which this Agreement is terminated, and (iiz) If in the event that the Termination Payment is payable pursuant to Subsection 8.3(b)(ii), on the Termination Payment shall be payable concurrently upon the earlier earliest occur of the events referred to in clause clauses (D).
(d) A Termination Payment shall be payable by Xxxxxxx to Fission in the event that the Agreement is terminated in the following circumstances (each being a “Xxxxxxx Termination Payment Event”):
(i) By Fission pursuant to Subsection 8.2(a)(iv)A or by Xxxxxxx pursuant to Subsection 8.2(a)(iii)C;
(ii) By either party pursuant to Subsection 8.2(a)(ii)D, but only if prior to such Xxxxxxx Meeting, a bona fide Acquisition Proposal, or the intention to enter a bona fide Acquisition Proposal with respect to Xxxxxxx, has been publicly announced and not withdrawn and within 6 months of the date of such termination, the Person who made such Acquisition Proposal or an affiliate of such Person:
A. directly or indirectly acquires Xxxxxxx by takeover bid, arrangement, business combination or otherwise;
B. directly or indirectly acquires the assets of Xxxxxxx or one or more of its subsidiaries that: (1) constitute more than 50% of the consolidated assets of Xxxxxxx; (2) generate more than 50% of the consolidated revenue of Xxxxxxx; or (3) generate more than 50% of the consolidated operating income of Xxxxxxx;
C. directly or indirectly acquires more than 50% of the voting or equity securities of Xxxxxxx; or
X. Xxxxxxx and/or one or more of its subsidiaries enters into a definitive agreement in respect of or Xxxxxxx’x Board approves or recommends a transaction contemplated by (AB)(1), (BB)(2) or and (CB(3) above, excluding a Permitted Transaction, with the Person or such affiliate of that made such Acquisition Proposal and that transaction is consummated at any time thereafter.
(e) If a Xxxxxxx Termination Payment Event occurs, Xxxxxxx shall pay the Termination Payment to Fission as liquidated damages in consideration of Fission’s rights under this Agreement by wire transfer of immediately available funds, as follows:
(i) if the Termination Payment is payable pursuant to Subsection 8.3(d)(i), the Termination Payment shall be payable within two (2) Business Days following such termination;
(ii) If the Termination Payment is payable pursuant to Subsection 8.3(d)(ii), the Termination Payment shall be payable concurrently upon the earlier of the events referred to in clause (D).
(f) Each of the Parties Subsection. RTO Acquiror hereby acknowledges that the Termination Payment to which they it may become entitled to as a non-terminating Party is a payment of liquidated damages which is a genuine pre-estimate of the damages which such non-terminating Party it will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and the transactions contemplated by this Agreement and is not a penalty. Each Party Meta hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by a non-terminating Party RTO Acquiror of the Termination Payment, such non-terminating Party RTO Acquiror shall have no further claim Claim against the other Party Meta at Law law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by the other Party Meta of any of its obligations hereunder or otherwise to obtain specific performance).
(c) The Termination Payment shall be payable by RTO Acquiror to Meta in the event that this Agreement is terminated in the following circumstances:
(i) pursuant to Subsection 8.2(a)(iv)B, Subsection 8.2(a)(iv)D or Subsection 8.2(a)(iii)A; or
(ii) pursuant to Subsection 8.2(a)(ii)A, Subsection 8.2(a)(ii)D or Subsection 8.2(a)(iv)C if, in any such case, prior to the earlier of the termination of this Agreement or the holding of the RTO Acquiror Meeting, (A) an RTO Acquiror Acquisition Proposal, or the intention to make an RTO Acquiror Acquisition Proposal, shall have been publicly announced by any Person (other than Meta or any of its affiliates) and not withdrawn prior to such termination or holding of the RTO Acquiror Meeting, and (B) within twelve (12) months after the later of the date of termination of this Agreement or the holding of the RTO Acquiror Meeting, (1) RTO Acquiror has entered into a definitive agreement with respect to or consummated an RTO Acquiror Acquisition Proposal, (2) an RTO Acquiror Acquisition Proposal has been publicly accepted or recommended by the RTO Acquiror Board, or (3) an RTO Acquiror Acquisition Proposal has been approved by or submitted for approval to the RTO Acquiror Shareholders. For the purpose of this Subsection 8.3(c)(ii), the term “RTO Acquiror Acquisition Proposal” shall have the meaning ascribed to such term in Section 1.1, except that references to “20%” shall be deemed to be “more than 50%”. For the avoidance of doubt, the RTO Acquiror Acquisition Proposal referred to in clauses (B)(1), (B)(2) and (B)(3) of this Subsection need not be the same RTO Acquiror Acquisition Proposal that was made to RTO Acquiror or publicly announced prior to the termination of this Agreement or holding of the RTO Acquiror Meeting. The Termination Payment shall be made by RTO Acquiror by wire transfer of same-day funds, to an account designated by Meta, (x) in the event that this Agreement is terminated pursuant to Subsection 8.2(a)(iii)A, simultaneously with, and as a condition to the effectiveness of, such termination, (y) in the event that this Agreement is terminated pursuant to Subsection 8.2(a)(iv)B or Subsection 8.2(a)(iv)D, as soon as practicable, and in any event within two (2) Business Days of the date on which this Agreement is terminated, and (z) in the event that the Termination Payment is payable pursuant to Subsection 8.3(c)(ii), on the earliest occur of the events referred to in clauses (B)(1), (B)(2) and (B(3) of that Subsection. Meta hereby acknowledges that the Termination Payment to which it may become entitled to is a payment of liquidated damages which is a genuine pre-estimate of the damages which it will suffer or incur as a result of the event giving rise to such damages and the resultant non-completion of the Arrangement and the transactions contemplated by this Agreement and is not a penalty. RTO Acquiror hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt by Meta of any Termination Payment, Meta shall have no further Claim against RTO Acquiror at law or in equity or otherwise (including injunctive relief to restrain any breach or threatened breach by RTO Acquiror of any of its obligations hereunder or otherwise to obtain specific performance).
Appears in 1 contract
Samples: Arrangement Agreement (Torchlight Energy Resources Inc)
